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REMEDIAL LAW
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Civil Procedure
Special Civil Actions
Special Proceedings
Criminal Procedure
Evidence
Special Laws

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2O11 CENTRALIZED BAR OPERATIONS

It is that part of the


law which creates,

It refers to the
legislation providing

defines or

means or methods

regulates rights

whereby causes of
action may be
eflbctuated, wrongs
redressed and relief
obfarned (also known
as ADJEGTIVE LAW),

concerning life,
liberty or property or
the powers of
agencies or
instrumentalities for
the administration of
public affairs.

accurate because only jurisdiction over the


subject mafter is confened by substantive
law. Jurisdiction over the parties, issues
and res is governed by procedural laws.

It makes vested
rights possible.

It has NO vested rights.

It is prospective in
application.

It governs acts and


transactions which took
place (Retroactive).

It cannot be enacted
by the Supreme
Court.

The Supreme Court is

REQUTSITES FOR THE VALID EXERCISE


OF JURISDICTION

3.

it

must have jurisdiction over the

persons of the Parties.

It is acquired the
moment he files his
complaint, petition or
initiatory pleading.

expressly empowered
to promulgate
orocedural rules.

Judicial Power includes the duty of the courts

of

That

to

justice
settle actual controversies
involving rights, which are legally demandable
and enforceable, and to determine whether or
not there has been grave abuse of 'discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality o{ the
Government (Section 1, Article Vlll, 1987
Constitution).

4.

That

it

It is acquired either by
his voluntary
appearance in court
and his submission to
its authority, or by
service of summons or
other coercive process
upon him.

must have iurisdiction over the

subiect mafter ol lhe controversY.


Jurisdiction

the subject matter is


in the

The power of judicial review is the Supreme


Court's POWER TO DECLARE a law, treaty,

international or executive agreement,


presidential decree, proclamation, order,
instruction, ordinance, or regulation
UNCONSTITUTIONAL.

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


of the law) is the power and authority of a
court to try, hear, and decide a case and to

E.

ys.

a.

April

carry its judgments into effect.

o The statement that 'Jurisdiction


confened bv substantive /aw" is NOT

is

activelY

defendant
stages ofthe

EXECUTIVE COMMITTEE:
EZEKIEL JOSHUA'VILLENA

oveiall chairperson, MINISTER MOISES DU chairperson for academics, DJOANIVIE JOMARE JUNASA
chairperson for hotel operations, MARIE MICAELA 5TA. ANA vice<hairpersori for operations, MIKHAIL MAVERICK TUMACDER vicechairperson for secretariat, JACKIE LOU LAMUG vice-chairperson for finance, DIANA JEAN TUAZON vice<hairperson for edp, JASSEN
RALPH LEE vice<hairperson for logistics
SUBJECT COMMITTEE:
RYAN MERCADER subject chair, MARTA DESIREE FEDERIO assistant subje{t chair, IVA FREYRITZ ERICA CAYABAN edp, JANNA MAE
TECSON and KRISTINE TUPAZ civil procedure, KAREN KRISTI LACAP special civil actiont MYRTLE CALVAN special proceedings. KIMBERLY
JOY BARAOIDAN criminal procedure, CRISALYN LUMANGLAS evidence, HANZEL SANTOS special laws

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

REMEDIAL LAW
INTRODUCTION
withheld from the plenary powers of

pro@edings before the trial court and


invoked its authority by asking for an

affirmative

relief (Soliven vs.

Fastforms, lnc. G.R. No. 139031, Oct.

and extends only

18,2004).

specified cases.

Jurisdiction is governed by the law

.
o

That it must haye jurisdiction over the res


(thing or property under litigation).
r lt is acquired either by the seizure of
the properg under legal process or as

result of the institution

decide cases previously decided by a


lower court now elevated for judicial
review.

of

legal
proceedings, in which the power of the
court
recognized and made
effective.

As to Nature and Extent of EXERGISE:


EXCLUSIVE jurisdiction Confined to

is

a particular court to the exclusion of

it

must have jurisdiction over the


rcsues as raised in the pleadings or by
their agreement in a pre-trial order or
those tried by the implied consent of the

That

- Exercised over
to particular or

As to NATURE of the Cause:


Exercised by
ORIGINAL jurisdiction
courts in the first instance.
Exercised
APPELLATE jurisdiction
by a superior court to review and

at the time the action is


COMMENCED.

6.

the court.
LIMITED jurisdiction

parties.

other courts.

CONCURRENT

jurisdiction
Pertaining to different courts over the
same subject matter at the same time
and place. When two or more courts
have concurrent jurisdiction over a
case, the court which has first validly
acquired jurisdiction takes it to the

exclusion of the others (also referred


Pertains to the authority
to hear and decide
cases.

to as

Any act of the court


pursuant to such
authority including the
decision and its
consequences.

4.

Where there is an exercise of jurisdiction

in the absence of jurisdiction, the court


be commifting an error of

would

mere error

of

One where the court,


officer or quasi-judicial
body acts wiihout or in
excess of jurisdiction, or
with grave abuse of
discretion.
It renders a judgment
void or at least voidable.

judgment,

not

of

One that the court may


commit in the exercr.se of
errors of procedure or
mistakes in the court's
Such an error does not
make the court's decision
void.

CLASSIFICATION OF JU RISDICTION

coordinate

As to SITUS:
TERRITORIAL jurisdiction - Exercised
within the limits of the place where the
court is located.

EXTRA-TERRITORIAL jurisdiction Exercised beyond the confines of the


territory where the court is located.

Where on the other hand, the court acted


with jurisdiction but coqnmitted procedural
errors or errors in the appreciation of the
facts or of the taw, the error would be a

1. As to CASES

or

jurisdiction.

jurisdiction.

confluent

jurisdiction).

Tried:

GENERAL jurisdiction - Exercised


over all kinds of cases, excepf those

COURTS OF LAW vs. COURTS OF EQUITY


A COURT OF LAW decides a case according
to what the promulgated law is while a COURT

OF

EOUI

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ADHERENCE TO
DOCTRINE OF
JURISDICTION
(Also Known As Continuity of Jurisdiction)
Cannot be abolished
by Congress without
amending the
Constitution.

Once jurisdiction has been acquired, the court


retains it untilthe final termination of the case.

May be abolished by
Congress by just
siniply repealing the
lawwhich created
those courts.

General Rule: Law enacted during

the
pendency of a case which transfers jurisdiction
to another court does not affect cases prior to
its enactment.

Ex. The Gourt of Tax

Appeals

SUPERIOR COURT vs. INFERIOR COURT


SUPERIOR COURTS refer to those courts
which have the power of review or supervision
over another lower court while INFERIOR
COURTS are those which, in relation to
another are lower in rank and subject to review
and supervision of the latter.

Exceptions:

1. When the new law

EXPRESSLY
PROVIDES for a retroactive application;

2. When the change of

jurisdiction

is

CURATIVE in character.
EXCLUSIONARY PRINCIPLE

The court first acquiring jurisdiction excludes


all others.

COURTS OF RECORD

Those whose proceedings are enrolled and


which are bound to keep a wriften record of all
trials and proceqdings handled by lhem. R.A.
No. 6031 mandates all Municipal Trial Courts
to be courts of record.
POLICY OF JUDICIAL HIERARCHY

This policy means that a higher court will not


entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate

DOCTRINE OF PRIMARY JURISDICTION

Under this doctrine, courts will not resolve a

controversy involving a question which is


within the jurisdiction of an administrative
tribunal, especially where the question
demands the exercise of sound administrative
discretion requiring the special knowledge and
experience of said tribunal in determining

technical and intricate matters of fact (Villaflor


vs. CA, G.R. No. 95694, Oct. 8, 1997).

courts.
DOCTRINE OF ANCILLARY JURISDICTION

While it is true that the SC, CA, and the RTC


have concurrent original jurisdiction to issue
writs of Certiorari, Prohibition and Mandamus,
such concurrence does not accord litigants
unrestrained freedom of choice of the court to

which the application for the writ may be


directed. The application should be filed with
the court of lower level unless the importance
of the issue involved deserves the action of
the couft of higher level.

DOCTRINE

OF JUDICIAL STABILITY

It involves the inherent or implied powers of


the court to determine issues incidental to the
exercise of its primary jurisdiction.

Under its aneillary jurisdiction, a court may


determine all questions relative to the matters
brought before it, regulate the manner in which
a trial shall be conducted, determine the hours
at which the witnesses and lawyers may be
money

OR

NON INTERFERENCE

General Rule: No court has the authority to


interfere by injunction with the judgment of
another court of coordinate jurisdiction or to
pass upon or scrutinize and much less declare
judgment
another court

as unjust a

of

(lndustrial Enterprises lnc. vs. CA, G.R. Na.


88550, Aprit 18, 1990).

Exception: The doctrine of judicial stability


does not apply where a third pafty claimant is
involved (Sanfos vs. Bayhon, G.R. No. 88643,
July 23, 1991).

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REMEDIAL LAW
JURISDICTION

EXCLUSIVE

1.

Actions involving personal property,

1.

whose value does NOT exceed


P300,000 or in Metro Manila the
amount does NOT exceed P400,000;

The action is incapable of pecuniary


estimation;

2"

Title to or possession of real property or


any interesttherein, the assessed value
EXCEEDS P20,000 or EXCEEDS
P50,000 in Metro Manila,

ORIGINAL

Note: The
adjusted

jurisdictional

2.

amount is based
on Sec. 5 of R.A.
7691, this year
being the 2nd 5year period
mentioned therein.

Demand for money NOT exceeding


P300,@0 or in Metro Manila NOT
exceeding P400,000;

Admiralty and maritime cases where


demand or claim EXCEEDS P300,000

Note: Exclusive of lnterest, Samages


of whatever kind, gttorney's fees,
litigation gxpenses, and gosts
flDALEC), the amount of which must

or EXCEEDS P400,000 in Metro


Manila;

be specifically alleged but the filing fees


thereon shall be paid,

Matters of Probate (testate & intestate)


where gross value of the estate
EXCEEDS P300,000 or EXCEEDS
P400,000 in Metro Manila;

. The exclusion of the term


"damages of whatever kind"
applies to cases where the

5.

damages are merely incidental to

or a

consequence of the main


cause of action. However, in cases
where the claim for damages is
the main cause of action, or one of
the causes of action, the amount
of such claim shall be considered

in determining the jurisdiction of

the court;

3.

4.

Probate proceedings (testate or


intestate) where the gross value of the
estate does NOT exceed P300,000 or
in Metro Manila the value does NOT
exceed P400,000;

Actions involving title to or possession


of real property, or any interest therein
where the assessed value or interest
therein does NOT exceed p20,000 or
in Metro Manila, does NOT exceed
P50,000;

5.

lnclusion and exclusion of voters (Bp


881,
X

Sec.138);

6.

Admiralty and maritime cases where


demand or claim does NOT exceed
P300,000 or in Metro Manita, does
NOT exceed P400,000;
Those covered by the Rules on
Summary Pr;ocedure:
lorcible Entry and Unlawful
petainer (FEUD)

7.

a.
.
o

With jurisdiction to resolve issue of


ownership to determine ONLY the
issue of possession;
lrrespective of the amount of
damages or unpaid rentals sought
to be recovered.
Where attorney's fees are

All actions involving the contract of


maniage and family relations (See RA.
8369 amending BP. 129).
Family Courts now have exclusive
original jurisdiction over:
Petitions for guardianship, custody
of children, habeas corpus in
relation to the latter (but the SC
and the CA have not been
deprived of their original

a.

b.
c.
,

jurisdiction);
Petitions for adoption of children
and the revocation thereof;
Complaints for annulment and
declaration of nullity of marriage,
matter relating to marital status
and property relations of husband
and wife or those living together
under different Status or
agreement, and petitions for
dissolution of conjugal partnership
of gains;

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d.
f.

Supp-qdandktaekrowledgment;

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2011 CENTRATIZED BAR OPERATIONS

awarded, the same shall NOT

exceed P20,000.

Other civil cases, excepf probate

proceedings, where

the total

b.

amount of the plaintiffs claim does

NOT exceed P100,000 or does


NOT exceed P200,000 in Metro
Manila, exclusive of interests and

costs (as amended by A.M. No.


02-1 1-09-SC, effective November

defendant upon verifi ed application


by the complainant or the victim for
relief fom abuse;
The court may order the temporary
custody of children in all
Civil actions for their custody,
support pendente /lfe, including
deduction from the salary, and use
ofconjugal home and other
properties in all civil actions for
support.

25,2002).
Cases NOT Win the exclusive
jurisdiction of any court, tribunal,
person or body exercising judicial or
quasi-judicial fu nctions (general

jurisdiction of RTC);
Civil actions and special proceedings
falling within the exclusive original
jurisdic'tion of Juvenile and Domestic
Relations Court and of Court of '
Agrarian Relations as now provided by
law;

All other caseslivhere demand


EXCLUSIVE of IDALEG or the value of
the property in controversy EXCEEDS
P300,000 or EXCEEDS P400,000 in
Metro Manila;
Under Sec. 5.2 of the Securities and

Regulations Code to hear and decide:


. Cases involving devices or
schemes employed by or any acts
ofthe board ofdirectors, business
associates, its officers or
partnership, amounting to fraud
and misrepresentation which may
be detrimental to the interest of the
public and/or of the stockholders,

with

REMEDIAL LAW
JURISDICTION

management of a Rehabilitation
Receiver or Management
Committee.

With SC

CONCURRENT

Actions affecting ambassadors,

public ministers and consuls.

With SC, CA and Sandigatnbayan lssuance of writs of certiorari, prohibition,


mandamus, habeas corpus; quo warranto,
injunction against lower courts.

With SC, CA and Sandiganbayan issuance of writ of amparo and habeas data
With MTC, etc.

NONE.

With lnsurance Commissioner


NOT exceeding P100,000.

Claims

May be assigned by the SC to hear


cadastral or land registration cases where
there is no controversy over the land or in

DELEGATED

case of contested lands, the value does


NOT exceed P100,000.

PetitiOn for Habeas Coryus OR application


for bail in criminal cases in the absence of
all RTC judges in the province or city.

SC may designate certain branches of RTC

to try exclusively criminal cases, juvenile


and domestic relations cases, agrarian
cases, urban land reform cases not falling

wiip the jurisdiction of any

quasi-judicial
body and other special cases in the interest
of justice.

All cases decided by the tourer courts

in

r respective territorial j u risd iction ex cept


declsrbns of lower courts in the exercise of

thei

delegatedjuisdiction. -

Petitions for certiorari, prohibition or


mandamus against:

a.
b.
c.
d.

CA;

COMELEG;
COA;
Sandiganbayan.

With Court of Appeals (CA)


Petitions for certiorari, prohibition or
Note: While the
mandamus (CPM) against RTC,
Rules provide for
habeas corpus, quo warranto;
concurrent
Petitions for certiorari, prohibition or
jurisdiction among
mandamus against the NLRC.
the RTC, CA, and
CONCURRENT

a.
b.

SC, the same is


still subject to the

principle

of

HIERARCHY OF
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2011 CENTRALIZED BAR OPERATIONS

pursuant to Sec 4

of Rule 65.
Wth CA, the Sandrganbayan and RTC

a.
b.

Petitions for issuance of Writ of


Amparo;
Petitions for Habeas Data, where
the action involves public data or
government office.
With the CA , RTC and Sandiganbayan
Petitions for certiorari, prohibition or
mandamus against inferior courts
and other bodies;
Petitions for habeas corpus and quo
warranto.

a.

b.

Wth RTC
Actions against ambassadors, other public
ministers and consuls

With GA, lhe Sandiganbayan and RTC


c. Petitions for issuance of Writ of
Amparo;
Petitions for Habeas Data, where
the action involves public data or
govemment office.
With CA only unless otherwise provided by
law
Petitions for certiorari, prohibition
or mandamus against quasijudicialagencies {like CSC, CBM,
CTA, etc.) (Amendments to Rule
65, A.M. No. 07-7-12-SC).

d.

a.

With the dC, nfC and Sandiganbayan


Petitions for certiorari, prohibition
or mandamus against inferior
courts and other bodies; and
Petitions for habeas corpus and
quo wananto.

a.
b.

Review, revise, reverse, modify, or affirm on


appeal or certiorari the following:
All cases in which the
constitutionality or validity of any
treaty, international or executive
agreement, law, presidential decree,
proclamalion, order, instruc'tion,
ordinance or regulation is in
question;
All cases involving the legality of any
tax, impost, assessment, or toll, or
any penalty imposed in relation
thereto;
All cases in which the jurisdiction of
any lower court is in issue;
All criminal cases in which the
penalty imposed is reclusion
perpetua or higher;
All cases in which only an error or
question of law is involved

APPELLATE

a.

b.

Exclusive Appellate jurisdiction over all

final judgments, decisions,

the 4" paragraph of section 17 of

Judiciary Act of 1948.

c.
d.

e.

EXCLUSIVE

ORIGINAL

1.

Offenses punishable with

imprisonment

six (6)
irrespective of the
amount of fine, and
regardless of other

exceeding

imposable accessory or

other penalties, including


the civil liability arising
from such offenses or

predicated thereon,
inespective of kind,
nature, value

or

1.

Offenses
imposable

2.

Offenses not

NOT
years

amount

court, tribunal or

jurisdiction

resolutions,

orders or awards of RTC and quasi-judicial


agencies except those falling within the
appellate jurisdiction of the Supreme Gourt
in accordance with the Constitution, Labor
Code, .8.P. 129 and of subparagraph 1 of
the {- paragraph and subparagraph 4 of

of

the

the

REMEDIAL LAW
JURISDICTION

thereof;

e.

Sandiganbayan.

2. Offenses
DAMAGE

Note: ln cases where the


only penalty is a fine, the

involving
TO
PROPERTY through
criminal negligence.

determine jurisdiction. lf

Note: ln cases where the only


penal$ is a fine, the amount

jurisdiction (Adm. Cir. 09-

thereof shall

determine

amount thereof

shall

the amount EXCEED


P4,000, RTC'S

have

e4).

3.

iurisdiction. lf the amount does

NOT exceed P4,000, MTC's

have jurisdiction (Adm. Cir. 0994).

Those covered by the


Rules on Summary
Procedure:

a.

b.
c.
d.

Family Court - Criminal


cases where:
One or more of the
accused is/are below
eighteen (18) years
of age but not less
than nine (9) years of
age; or
Where one of the
victims is a minor at
the time of the
commission of the
offense;
Cases against minors
cognizable under the
Dangerous Drug Ac{;
Violations of RA

a.

Violations of traffic
laws, rules and
regulations;
Violations of the
rental law;

Violations of

b.

municipal or city
ordinances;
Violations of BP 22,
otherwise known as
Bouncing Checks

c.

Law (4.M. No.00-1101-SC, effective April


15,2003);

e. All other criminal


cases where the
penalty
is
imprisonment

exceeding

or
liabilities
therefrom and

in

offenses involving
damage to property

through

criminal
negligence where the
imposable fine is not
exceeding P10,000.

Civil and criminal cases filed


pursuant to and in connection
wilh Executive Order Nas. 1, 2,
14, and 14a (filed by PCGG).

d.

2610, otherwise

not

months
andlor P 1,000 fine
irrespective of other
penalties
civil
arising

2.

Other offenses or
felonies whether
simple or complexed
with other crimes.
The offender committing
the offense in items a, b, c,
and e is a public official
occupying a position
elassified as salary grade
27 and higher;
The offense was
committed in relation to
office.

e.

known as the
"Special Protection of
Children Against
Child Abuse,
Exploitation and
Discrimination Act'as
amended by RA
7658; and
Cases of domestic
violence against
women and children.

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2O11 CENTRALIZED BAR OPERATIONS

All cases decided by the

APPELLATE

MTC's in their respective


territorial jurisdiction.

Appeals from the final


judgments, resolutions or
orders of regular courts where

all the accused are

occuPYing

grade 27 or not
covered by the

otherwise
preceding

positions lower than salary

enumeration.

Petition

for

certiorari, prohibition and

mandamus against Court of Appeals and


Sandiganbayan.

With the CA: petitions for certiorari,


prohibition and mandamus against the

Actions for annulment of judgment of the


Regional Trial Courts
Crimes of Terrorism under Human Security
Act of 2007.
With the SC: petitions for certiorari, prohibition
and mandamus against the RTC's.

RTC's.
With the CA and RTC: petitions for
certiorari, prohibition and mandamus
against the MTC's.

With the SC and RTC: petitions for certiorari,


prohibition and mandamus against the MTC's.

By petition for review on certiorari:


From the CA;
From lhe Sandiganbayan;
From the RTC where only an error
or question of law is involved.

By.Notice of Appeal:

r
.
r

Note: In People vs. Mateo, G.R. Nos.


14767&87, July 7, 2004 lhe Supreme
Court held that while the Fundamental Law

a mandatory review by the


imposed is reclusion perpetua, life
requires

Supreme Court of cases where the penalty


imprisonment, or death, nowhere, however,

has it proscribed an intermediate review. lf

only

to

ensure utmost circumspection


before the penalty of death, reclusion
perpetua or life imprisonment is imposed,

the Court now deems it wise and

compelling to provide in these cases a


review by the Court of Appeals before the
case is elevated to the Supreme Court. A
prior determination by the Court of Appeals
on, particularly, the factual issues, would
minimize the possibility of an error of

judgment. lf the Court of Appeals should

of death, reclusion
perpetua or life imprisonment, it could then
render judgment imposing the
affirm the penalty

conesponding

penalty as

the

circumstances so warrant, refrain from


entering judgment and elevate the entire
records of the case to the Supreme Court
for its final disposition.

From the RTC in the exercise of its original


iurisdiction, except those appealable to the
Sandiganbayan.

From the RTC where penalty imposed is


reclusion perpetua or life imprisonment or
where a lesser penalty is imposed but for
offenses committed on the same occasion or
which arose out of the same occurrence that
gave rise to the more serious offense for which
the penalty of death, reclusion perpetua, or life
imprisonment is imposed (Section 3 Rule 122
as amended by AM. No.0O-U03-SC).
By automatic review (i.e. no notice of appeal is
necessary):
From the RTC, in cases wherein the death
penalty is imposed.

the

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REMEDIAL LAW
JURISDICTION

ORIGINAL

1.

All cases involving custody, guardianship, legitimacy, paternity and filiation


arising under the Code of Muslim Personal Laws;

All cases involving disposition, distribution and settlement of estate

of

deceased Muslims, probate of wills, issuance of lefters of administration or


appointment of administrators or executors regardless of the nature or
aggregate value ofthe property;
3.

Petitions for the declaration of absence and death for the cancellation or

correction of entries in the Muslim Registries mentioned in Title Vl, Book Two
of the Code of Muslim Personal Laws;
4.
All actions arising from the customary contracts in which the parties are
Muslims, if they have not specified which law shall govern their relations; and
All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus,
dnd all other auxiliarv writs and
in aid of its aDoellate
1.' Petitions by Muslim for the constitution of a family home, change of name and
cpmmitment of an insane person to an asylum;
All other personal and legal actions not mentioned in paragraph 1 (d) wherein
thb parties involved are Muslims except those for forcible entry and unlawful
detainer, which shall fall under the exclusive jurisdiction of the Municipal
Circuit Court, and
All special civil actions for interpleader or declaratory relief wherein the parties
are Muslims or the propertv involved belongs exclusively to Muslims.
4
Offenses defined and punished under PD 1083
2.
Disputes relating to :
a.
Marriage
b.
Divorce
c.
Betrothal or breach of contrac{ to marry
d. Customary dower (mahr)
Disposition and distribution of property upon divorce
Maintenance and support,
Consolatory gifts (muf'a) and
restitution of marital rights
Disputes relative to communal properties.

2.
3.
Cases that can be filed

e.
f.
S.
h.

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Applicability

1.

SECTION

1. TITLE OF THE RULES

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.

The Rules of Court DO NOT HAVE retroactive

effect. They can, however, be made

A civil action may either be

passage and therefore are retroactive in that

OR SPECIAL, BOTH are governed by the


rules for ordinary civil actions, SUBJECT

applicable to cases pending at the time of their


sense.

to the specific rules

1.

2.
3.

Simplified and inexpensive procedure for

2.

the speedy disposition of cases;

Uniform for all courts of the same grade;


and

Shall not diminish, increase or modify


substantive rights (Arf. Vlil Sec. S[S], 19A7

3.

Phil. Constitution).

o ln the interest of just and expeditious


proceedings,

the Supreme Court

may

suspend the application of the Rules of

Court and except a case from its


operation because the Rules were
precisely adopted with the primary
objective of enhancing fair trial and
expeditious justice.

SECTION

2.

APPLICABLE

IN WHAT

prescribed

for

special civil action.

The rule-making power of the Supreme Court


has the following limitations:

ORDINARY

Griminal Action

- one by which the State


prosecutes a person for an act or omission
punishable by law.
Special Proceedings

- a

remedy by

which a party seeks to establish a gtatus,


a gight, or a particular fact (SRP).

Glassifi cation of Actions

B.

As to Nature

Governed by ordinary
rules.

AIso governed by
ordinary rules but
SUBJECT to specific
rules prescribed

COURTS

These Rules shall apply in all the courts,


EXCEPT as otherwise provided by the

*ffi t*ev{

Supreme Court.
SECTION

3. CASES GOVERNED
A right possessed

One party prosecutes


another for the
enforcement or
protection of a right or
the prevention or

by one against
another.
The moment said
claim is filed before
a court, the claim is
converted into an
action or suit.

EXECUTIVE COMMITTEE:
EZEKIEL JOSHUA VILLENA

overall chairperson, MINISTER MOISES DU chairperson for academics. DJOANIVIE JOMARE JUNASA
chairperson for hotel operations, MARIE MICAELA STA. ANA vice<hairperson for operations, MIKHAIL MAVERICK TUMACDER vice.
chairperson for secretariat, JACKIE Lou LAMUG vice_chairperson for ffnince, DIANA lren ruezoru vicechairperson for edp. JASSEN
RALPH LEE vice-chairperson for logistics
SUBJECT COMMITTEE:
RYAN MERCADER subject chair. MARTA DESIREE FEDERIo assisrant subject chair, tvA FREyRtrz ERtcA CAYABAN edp, JANNA MAE
TECSON and KRISTINE TUPAZ ciMI procedure, KAREN KRlSTl LACAP special civil actions, MYRILE CALVAN special proceedings, KIMBERLY
JOY BARAOIDAN criminal procedure, CRISALYN LUMANGI-AS evidence, HANZEL SANTOS special laws

MEMBERSI
Ethel Joy Arriola. Glory Grace Arugay, Mark Joseph Ayo, Kriselle Balmes, Elizabeth Mae Bongalonta, Venice Buagnin, Diana Fajardo, lan
Daniel Galang, Erika Gallego, Nicole Rose MargaretJamilla, Frances Dyan Lim, Jane Kathyrine Lim, AIi Lorraine Manrique, Roniel Murioa

Kevin Averell Pangan, Ramiila Quinto, Beverly Quintos, Lee Realino Reyes, Lyndon Rutor, Ednalyn Saron, Carlo Tabaloc, Norliza
blfrrleri-a Joe Angelo David, lGmille Deanne Lagasca, Raynan Larosa

REMEDIAL LAW
CIVIT PROCEDURE

defendant is
NOT required.

A proceeding
to determine
the state or

condition of

Jurisdiction over
the person of
the defendant is
required.

An action to

Jurisdiction over
the person of the
defendant is NOT
required as long
as jurisdiction
over the res is

A proceeding to
subject the
interest of a

impose a

responsibility
or liability
upon a penion defendant over
directly.
a particular
property to an
lien burdening
it.

Judgment is
binding on the
WHOLE

Judgment is
binding only
upon PARTIES
IMPLEADED
OR THEIR
SUCCESSORS
IN INTEREST,
Ex. Action for

specific
performance;
action for
breach of
contract.

Judgment is
binding upon
PARTICULAR
PERSONS.

Ex. Aclion for

partition; action
to foreclose real
estate mortgage.

1. Wh.ether or not jurisdiction over the person

_
2.

of the defendant is required; and


Persons upon whom judgment is binding.

D.

As to Carrca

Filed in the
court where
the property
or any part
thereof is
situated.

Filed in the
court where
the plaintiff
or any of the
defendants
resides, at
the option of
Ex. Action
for a sum of

t2

The distinction is significant in determining the


VENUE of an action.

E.

As to the Place of

Must be brought in a
particular place
where the subject
property or a portion
thereof is located,
unless there is an
agreement to the
contrary (Section 4,
Rule 4).

Dependent on the place


where the party resides
regardless of where the
cause of action arose
subjecl.
(Section 4, Rule 4).

Ex. Action to recover


real property

Ex. Action to recover


sum of money

Note: lf the action is founded on privity of


contract between the parties, then the action
whether debt or covenant, is TRANSITORy.
But if there is no privity of contract and the
action is founded on privity of estate only, such

hands of the remote grantees, then the action

The distinction is important in determining the

Personal
property is
sought to be
recovered
or where
damages for
breach of
contract are

object (e.9., action for annulment of maniage).

as a covenant that runs with the land in the

following:

Ownership or
possessjon of
real property
is involved.

Note: An action could be real as to cause ard


personam as to object (e.g., acrfun to
recover a piece of land). An action could also
be personal as to cause and ,n /ern as to

in

Both real and


personal properties
are involved.

is LOCAL and must be brought in the ptace


wherein the land lies (paper lndu'stries
Corporation of the Philippines vs. Samson,
G.R. No. L-301 75, November 25, 1 975).

Actions lncapable of pecuniary Estimation


An action CAPABLE of pecuniary estimation is
one wherein the action is'brought primarily
for the recovery of a sum of money; and the
amount of the claim shall determine where
the jurisdiction ties.

than th&&S&tWffi&vei*i
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The rules on venue


of real actions shall
govern.

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2011 CENTRALIZED BAR OPERATIONS

secrrof

4.

IN WHAT CASES

been left for dete.rmination by the court,


additional filing fee therefor shall

NOT

the

APPLICABLE

constitute a lien on the judgment.

NOT APPLICABLE lN: {ELCaNio)


1. llection Cases;
land registration/qdastral cases;

2.
3.
4.
5.

. The amount of

damages should be
specified not onlY in the bodY of the

[aturalization;

lnsolvency proceedings;

Qther cases not provided in the Rules of


Court.

Exception: The Rules of Court are applicable

above cases by analogy or in a


s u p pl eto ry ch a racte r and when eve r practicab e

to the

and convenient.
SECTION

case,

it is the date of mailing that is

considered as the date of filing and not the

5. COMMENCEMENT OF ACTION

A civilaction is commenced by:


1. The FILING OF THE COMPLAINT (When
an additional defendant is impleaded in a
later pleading, the action is commenced
with regard to him on the date of the filing
of such LATER PLEADING); and

Note:
actions
deemed
commenced from the date of the filing and
docketing of the complaint, without taking

Civil

pleading but also in the PraYer.


lf the complete amount of the docket fee is
not paid, the prescriptive period continues
to run as the complaint is deemed not filed
(Feria, 2001, p. 208).
An action can be commenced by filing the
complaint by registered mail. ln which

are

into account the issuance and service of


summons (Cabrera vs. Tiano, G. R. No" L17299, July 31, 1963).

2. The PAYMENT OF

DOCKET FEES
(Determined not only by the amount of the
claim but also by the amount of damages)

ln Sun lnsurance Office, Ltd. v. Asunciotn fl7a


SCRA 274, 1989) the Supreme Court laid
down the following rules:
It is not simply the filing of the complaint or
appropriate initiatory pleading but also the
payment of the prescribed docket fee that
vests a trial court with jurisdiction over the
subject matter or nature of the action.
Where the filing of the initiatory pleading is
not accompanied by payment' of the
docket fee, the court may allow payment
of the fee within the reasonable time but in
no case beyond the applicable prescriptive
period.
b. The same rule applies to permissive
counterclaims, third-party claims and

similar pleadings which shall not

date of the receipt thereof by the clerk of


court.
SECTION

6,

CONSTRUCTION

General Rule: Liberal construction

Exceptions:

1. Reglementary periods;
2. Rule on forum shopping;
3. Service of summons.
. The power of the Supreme Court to

promulgate rules concerning pleading,


practice, and procedure includes the
power fo suspend the effectivity of such
rules or to provide an exception from the
operation of said rules. lt is within the
inherent power of the Supreme Court to
suspend its own rules in a particular case
in order to do justice (De Guia vs. De
Guia, G.R. No. 135384, APril 4, 2001).

Reasons Which Would Warrant the


Suspension of the Rules
1. The existence of special

or

compelling

circumstances;

be

considered filed until and unless the filing


fee prescribed therefor is paid.

Where the trial court acquires jurisdiction


over a claim by the filing of the appropriate
pleading and payment of the prescribed
filing fee, but subsequently, the judgment

awards a claim not specified in the


pleading, or if specified, the same has

13

REMEDIAL LAW
CIVIL PROCEDURE

1.

SECTION
BASIS OF

ORDINARY GIVIL ACTIONS,

Every ordinary civil action must be based on a


cause of action.
SECTION

Gause

2.

CAUSE OF ACTION, DEFINED

of Action is the act or omission

by

which a party violates a right of another.

Requisites of Right of Action:


1. The existence of a LEGAL RIGHT of the

The redress,
protection,
award or
coercive
measure
which the
plaintiff prays
the court to
render in his
favor as
consequence
ol the delict
committed by
the defendant.

The
procedure or
appropriate
legal form of
relief of
action which
may be
availed of by
the plaintiff
as the
means to
obtain the
desired
relief.

plaintiff;

2. A CORRELATIVE OBLIGATION of the


defendant to respect plaintiffs right; and
3. An act or omission of the defendant in
VIOLATION of the plaintiffs legalright.

results from the injury.

of Action is right of a

person to
commence and prosecute an action to obtain
the relief sought.

SINGLE

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

Splifting of cause of action is the act of


dividing a single or indivisible cause of action

Requisites:

1. There must be a good cause (The


existence of a cause of action);
2. A compliance with qll the conditions
precedent

3.

3. ONE SUIT FOR A

CAUSE OF ACTION

lnjury is the illegal invasion of a legat right


while damage is the loss, hurt, or harm which

Right

SECTION

The thing,
wrongful ad,
contract or
property
which is
directly
involved in the
action,
concerning
which the
wrong has
been done
and with
respect to
which the
controversy
has arisen.

to the bringing of the

action;

and
The action must be instituted by the proper

Delict or wrongful act or Remedial right or right


omission committed by to relief granted by law
the defendant in to a party to institute an
violation of the primary action against a person

who has committed

rights of the plaintiff.

into several parts or claims and bringing


several actions thereon. lt is NOT allowed.
Purpose:

To avoid the following:


Multiplicity of suits;
2" Conflicting decisions; and
Unnecessary vexation and harassment of
defendants.

1.
3.

Applies NOT only to complaints but also to


counterclaims and cross-claims.

delict or wrong against


him.

The reason for

the The remedy

aclion.

q-5{P"

or

afforded or

means
the

consequent relief.

The formal statement of The remedial right given


the operative facts that to a person because of

gives rise

to

remedial

right.

the occurrence of

the

alleged facts.

matter of procedure A matter of right and


and depends on the depends on substantive
pleadings filed by the law.
parties.

Not affected by

affirmative

(Fraud,

estoppel, etc.).

14

Affected by affirmative

defenses defenses.
prescription,

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2011 CENTRALIZED BAR OPERATIONS

b.

Exception: A contract to do several things


at several times is divisible, and judgmen!
for a single breach of a continuing contract
is NOT a bar to a suit for a subsequent
breach (e.9., promlssory note payable in
several installments so long as fhere ts no
acceleration clause).

c.

Exception

to the

All

of

Doctrine

Anticipatory Breach: An
UNQUALIFIED and POSITIVE REFUSAL
to perform a contract, though the
performance thereof is not yet due, may, if
the renunciation goes into the whole
contract, be treated as a complete breach
which will entitle the injured party to bring

his action at once (Elossom & Co. ys.


Manila Gas Corp., No. 32958, Nov. 8,
19s0).

The rule against splitting of a cause of action


appties only where the action is between the

same parties (ltogon Suoc Mneg lnc. vs.


Sangil-ltogon Worker's Union, G.R. No. l24189, August 30, 1968).

5.

SECTION

JOINDER OF CAUSES OF

ACTION

Joinder

of

4.

The venue lies,thereon.

Where the claims in the causes of action


are principally for recovery of money, the

aggregate amount claimed shall be the

test of jurisdiction (Totality Rule).

Totality Rute under BP 129: Where there are

exception:

obligations which have matured at the time


of the suit must be integrated as one
cause of action in one complaint, and
those not so included would be barred.

d.

b.

several claims or causes of actions between


the same or different parties, embodied in the
same complaint, the amount of the demand
shall be the totality of the claims in all causes
of action, irrespective of whether the causes of

action arose out of the same or different

transaction.

The jurisdictional amount excludes: a)


interest, b) damages of whatever kind, c)
attorney's fees, d) litigation expenses and

costs. These matters however, shall be


included in determining the filing fees.
(Riano 2009, p.l79)
Note: Ihe exclusion of the term "damages of
whatever kind' in determining the iurisdictional
amount, applies fo cases where the damages
are merely incidental thereto or consequence
of the main cause of action.

Note: We will follow the totality rulein BP 129

because it is elementary in
construction that in case of

statutory
conflict,
substantive law prevails over procedural laws.

cruses of action is purely


The plaintiff can always file

PERMISSIVE.

separate actions for each cause of action.

Requisites for Joinder of Gauses of Action:

1.

The party joining the causes of action


must comply with the rules on joinder of
parties;

It causes multiplicity of

suits and double

It minimizes multiplicitY
of suits and

Note: The following are the elements for a


joinder of parties (Sec. 6, Rule 3):
a. A right to relief in respect to or arising
out of the same transaction or series

b.

2.

of transactions; and
A common question of law or fact.

The joinder shall not include special civil

actions

or

actions governed by special

rules;

3.

the causes of action are between


the same parties but pertain to different
venues or jurisdictions, jurisdiction is with
Vly'here

the Regional Trial Court, provided that:


a. One of the causes of action falls within
the jurisdiction of the RTC; and

15

EIALLAW
@il.PROCHX'RE
Phintiff

of the

SEIN 1. TO IAY BE PARTIES;


PLtfTrFAII I'EFEM)ANT
fqimomsbra person to be a party to
a drt*lin:
1. ib mrct be either:
a A nafural person; (e.9. Juan dela Cruz
vs fudro Sanfos)
b. A juridical person, (e.9. Juan dela
Cruz vs ABC Corporation) or
c. An entity authorized by law. (e.g.
corporations

by estoppel,

partnership
by estoppel- Juan Dela cruz vs Pedro

Sanfos, et.al. doing buslness under


the name ofXYZ Cgmpany)

2. He must have the legal capacity to sue;


and
3. He must be the reat party-in-interest.
One need not be a natural or a juridical person
to be a party to a civil action. As long as an
entity is authorized by law to be a party, such
entity may sue, be sued or both (Riano, 2007,
p.179).

Note: Entities authorized by law to be parties


to a suit include:
1. The estate of a deceased person;

2. A political party incorporated

under Act

1459 (now 8.P. Btg. 69, Corporation

Code); and

3. A registered

labor union (Sec. 243, pD


442, Labor Code), with respect to its

property.

As to properties of the Roman Catholic


Church, the Archbishop of the diocese to

which they belong may be a party (Versoza vs.


Fernandez, G.R. No. L-25254, Nov" 22, 1926).

It refers to a plaintiffs
general disability to sue.
such as on account of
minority, insanity,
incompetence, lack of
juridical personality or
any other general
disqualifications of a
party.

The plaintiff is not the

It can be a ground for

It can be used as a

one having an interest in the matter

action

or in

obtaining

the

relief

demanded. The term may refer lo lhe claiming

party, the counter-claimant, the crossclaimant, or the third (fourth, etc.)- pafty
plaintiff.

Defendant - one claiming an interest in the


controversy or the subject thereof adverse to
the plaintiff . The term may also include:
1. An unwilling co-plaintiff or one who should
be joined as plaintiff but refuses to give his
consentthereto (Sec. 10, Rule 3);

2. The original plaintiff becoming a defendant


to original defendant's counterclaim; and
3. One necessary to a complete
determination or settlement of the
questions involved therein,
SECTION

2.

PARTIES IN INTEREST

Real Party-in-lnterest is the party who stands


to be benefited or injured by the judgment in
the suit or the party entitled to the avails of the
suit.

Note: To be a real party-in-interest, the


interest must be 'real', which is a presenf
substantial interest as distinguished from a
mere expectancy or a future, contingent
subordinate or consequential interest.

ln Oposa vs- Factoran (G.R. No. 101083,


1993/, minors represented by their parents
were held as real parties in interest to file an
action to annul timber licenses issued by the
state under the following principles:
lnter-generational responsibility;
lnter-generational justice;
The right of the Filipinos to a balanced and
healthfulecology; and
Minors represent themselves and the

a.
b.
c.
d.

real party-i n-i nterest.

motion to dismiss on the ground for a motion to


ground o'f lack of legat dismiss based on the
capacity to sue.
fact that the complaint,
on the face thereof,

states no' cause of


action.

16

without

'

9m Ftls

Gstlegt of Lclo

2O1I CENTRALIZED BAR OPERATIONS

an action (must he joined under

all

conditions).

Necessary parties - Those who are not


indispensable but ought to bb joined as
parties if complete relief is to be accorded

as to those already parties, or for

Where the action is allowed to be prosecuted


or defended by a representative or $omeone
acting in a fiduciaqi capacity, the beneficiary
shall be included in the title of the case ad

shall be deemed

to be the real party-in-

interest.

complete determination or settlement of


the claim subject of the aclion (may or
may not be joined).

.3. Representative parties - Those acting in


fiduciary capacity such as trustees,

guardians, executors, or administrators.


The beneficiary shall be included in the

An agent may sue or be sued without joining


his principal except when the contract involves
things belonging to the principal.
SECTION 4. SPOUSES AS PARTIES

General Rule: Husband and wife shall sue or


be sued jointly.

title of the case and shall be deemed to be


the real party in interest.
4.

Pro forma parties

Exceptions (lJncler

Those who are


required to be joined as co-parties in suits

by or against another party as may

be

provided by the applicable substantive law

or procedural rule such as in the case of


spouses under Sec. 4.
5.

Quasi parties

1.

2.
3.

Those in whose behalf a

class or representative suit is brought.

the Family Code):


A spouse without just cause abandons the

to comply with his or her


obligations to the f;amily with respect to the
marital, parental or property relations.
A spouse of age mortgages, encumbers,
alienates or otherwise disposes of his or
her exclusive property.
The regime of separation of property
governs the property relations of the
spouses. (Feria, 2001, p. 231)
other or fails

SECTION

Must be joined under Should be joined


any and all conditions, whenever possible, the
their presence being a

sine qua non for

exercise of

action can proe,eed even


the in their absence.

judicial

power.

No valid judgment if The case may

be

indispensable party is determined in court but


the judgment therein will

not joined.

not resolve the entire


controversy if
a
necessary party is not
joined.
They are those with such They are those whose
presence is necessary to
an interest in the
controversy that a final
whole
adjudicate
decree would
controversy but whose
necessarily affect their
interests are
tar
rights so that the court
final
separable that
cannot proceed without
decree can be made in
their presence.
their absence without
affecting them.

3.

MINOR OR INCOMPETENT

Under the present rules, a suit may be brought


by or against a minor or incompetent but with
the assistance of his parents or his guardian.

A person NEED NOT be judicially declared


incompetent, it being sufficient that his
incompetency be ALLEGED in the
corresponding pleadings.
SECTION
PARTIES

6.

PERMISSIVE JOINDER OF

Permissive
rule on
be

#JsrH{ffi#g& be

the
so
a

SECTION

5,

s#ikut*w# r: #W **ew
1.

2.

to

REPRESENTATIVES AS

3.

PARTIES

representative may be a trustee of an


express trust, a guardian, an executor or
administrator or a party authorized by law or

Series

the Rules of Court.

L7

REMEDIAL LAW
CIVIL PROCEDURE
SECTION 7. COMPULSORY JOINDER OF
INDISPENSABLE PARTIES

by ordering plaintiff to file an amended


complaint impleading the necessary party
therein as co{efendant.

The indispensable party must always be


included in the suit. ln the absence of such
party, the court should order that the
indispensable party be included. lt shall not

Note: The failure to comply with the court's


order to include or join a necessary party
without justifiable cause shall be deemed a

order the dismissal of the suit outright.

waiver of the claim against such party.

Only when the party ordered

SECTION 10. UNW|LLING CO.PLAIXTIFF

to implead the
indispensable party refuses or fails to do so
shall the case be dismissed, on the ground of
disobedience to the Rules or orders of the
court under Sec. 3 of Rule 17.

of

an indispensable party
renders all subsequent actuations of the court
null and void for want of authority to act not

The absence

only as to the absent parties but even as to

lf the consent of any party who

be made a defendant and the reason therefore


shall be stated in the complaint.

SECTION 1'1. MISJOINDER AND NON.


JOINDER OF PARTIES

those present.

A party is

SECTION 8. NECESSARY PARTY

impleaded.

MISJOINED when he is made a


party to the action although he should not be

Also called PROPER PARTIES - those whose


presence is necessary to adjudicate the whole

controversy, but those interests are so far


separable that a final decree can be made in

their absence without affecting them


(Quisumbing vs. CA, G.R. No. 93339 Sepf.
13,1990).

The non-inclusion of a necessary party does


not prevent the court from proceeding with the

action and the judgment therein shall be


without prejudice to the rights of such
necessary party not impleaded.

Joint Debtor - He is an indispensable party in


a suit against him but a necessary party in a

suit against his co-debtor.

Solidary Debtor

should be

joined as plaintiff cannot be obtained, he may

- ln a suit brought by a

creditor against one solidary debtor, the other


solidary debtor is NEITHER indispensabte nor

A party is NOT JOINED when he is supposed


to be joined but is not impleaded in the action
(Riano,2007, p. 195).
Neither misjoinder nor non-joinder of parties is
a ground for dismissal of the action.

Exception: Secflon 7, Rule 3 in relation to the


disobedience to the rules or order of the court
for the inclusion of an indispensable party.

Note:

Objections to defects in parties should


be made at the earliest opportunity, r.e., the
moment such defect becomes apparent, by a
MOTION TO STRIKE THE NAMES OF THE
PARTIES impleaded. Objedtions to misjoinder
cannot be raised for the first time on appeal.

sEcTtoN 12. CLASS SU|T

a necessary party.

SECTION 9.

NON-JOINDER

NECESSARY PARTIES TO BE PLEADED

and
OF

Duty of a pleader whenever a necessary


party is not joined or impleaded:
1. State the name pf the necessary party, if

2.

known; and
State why said necessary party is omitted
in the pleading.

Should the court find the reason for the


omission unmeritorious, it may order the
inclusion of the omitted necesiary party if
jurisdiction over his person may be obtained

18

one of

that it is

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2O11 CENTRALIZED BAR OPERATIONS

3.

4.

Parties bringing the class suit are


SUFFICIENT IN NUMBER AND

SECTION 15. ENTITY WTHOUT JURIDICAL


PERSONALITY AS DEFENDANT

REPRESENTATIVE of the class and can


fully protect the interests of all concerned;

Requisites: (TED)

and
The representative sues or defends for the
benefit of all.

Note: A taxpayer's suit or a stockholder's


derivative suit is in the nature of a class suit,
although subject to the other requisites of the
corresponding goveming law especially on the
issue of locus sfandl (Regalado p. 97).

Any party in interest shall have the right to


intervene to protect his individual interest.
(Ihls rb an instance when a person may
intervene as a matter ot risht).

1.

2.
3.

or more persons not


organized as a juridical entity;
They gnter into a transaction; and
A wrong or g[elict is committed against a
such
the course
third person
transaction.
There are lwo

of

in

Persons associated

in an

entity

without

juridical personality may be sued under the

by which they are generallY or


commonly known, but they cannot sue under
name

such name.

The service of summons may be effected


upon all the defendants by serving upon any of
in charge of the
office or place of business maintained under
such name (Section 8, Rule 14).

them, or upon the person


There is one single
cause of action
pertaining to numerous
persons.

There are multiple


causes of action
separately belonging to
several persons.

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 in the alternative,


although a right to relief against one may be
inconsistent with a right to relief against the
other.

SECTION 14. UNKNOWN IDENTITY OR


NAME OF DEFENDANT

Requisites:

1.

2.
3.
4.

There is a defendant;
Hls identity or name is unknown;

Fictitious name may be used because of


ignorance of defendant's true name and

INSTANCES WHERE SUBSTITUTION OF


PARTIES IS PROPER

A.

SECTION 16. DEATH OF PARW; DUTY


OF COUNSEL

This provision applies where the claim is


NOT extinguished as in cases involving
property and property rights such as:

1. -property
Recovery of real and Personal
against the estate;
2. Enforcement of liens on such

3.

properties, or

an injury to Person or
property by reason of tort or delict
Recovery for

commifted by the deceased.

ln this case, the heirs will be substituted


deceased OR if no legal

for the

court will

said ignorance is alleged in the complaint;

ldentifying description may be used: sued


as unknown owner, heir, devisee, or other
designation;

5. Amendment to the pleading when identity


or true name is discovered; and
6. Defendant is the defendant being sued,
not a mere additional defendant.
Service of summons upon a defendant whose

identity is unknown may be made by


publication in a newspaper of general
circulation in accordance with Section 14 of
Rule 14.

19

REMEDIAL LAW

CMIL PROCEDURE

Note: lf the action does not

survive (like

A transferee pendente lite:


1. Stands in exactly the same position as
its predecessor-in-interest, the original
defendant; and

purely personal actions of support, annulment


of marriage and legal separation), the court
shall simply dismiss the case. Substitution will

2.

not be required (Riano, 2007, p. 200).

B.

SECTION 17. DEATH OR SEPARATION

OF

PARTY WHO

IS A

included as
voLl p.405)

PUBLIC

OFFICER

Requisites:

1. Public officer is a PARTY TO AN


ACTION in his officiat capacity;
2. During the pendency of the action, he
either DIES, RESIGNS, OR
OTHERWISE CEASES to hotd office;
3. lt is satisfactorily shown to the court by
any party, within 30 .days afier the

4.
5.

successor takes office, that there is a


SUBSTANTIAL NEED for continuing
or maintaining the action;
That the successor ADOPTS OR
CONTINUES OR THREATENS TO
ADOPT OR CONTTNUE the action of
his predecessor; and
The party or ofiicer affected has been
given REASONABLE NOTTCE of the
application therefor and accorded an
opportunity to be heard.

C. SECTION

18.

INCAPACITY

INCOMPETENCY OR

ln case a party becomes incompetent or


incapacitated, the action survives and may

be

continued by or against th;


or incapacitated assisted by
his legal guardian or guardian ad titem,
incompetent

who is his legalrepresentative.

D.

SECTION 19. TRANSFER OF INTEREST


The transfer of interest that is referred to in
this section is bansfer that occurs
DURING THE PENDENGY of the action.
The transferor would no longer be the real
party in interest if the transfer is made
before the commencement of the suit.

Bound by the proceedings had in the


was
transferred to it, even if not formally

case before the propefi

defendant. (Henera,

The case will be dismissed if the interest


of plaintiff is transferred to defendant
UNLESS there are several plaintiffs, in
which case, the remaining plaintiffs can

' proceed
with their own cause of action.

SECTION 20. ACTION ON CONTRACTUAL


MONEY CLAIMS

Requisites: (MAD)
1. The action must primarily be for recovery

2.

3.

ofggoney, debt , or interest thereon;

The claim, subject of the action, 3rose


from contract, express or implied; and

Defendant glies before the entry of final


judgment in the court in which the action
was pending.

Note:

Under this section, the death of the

defendant will not result in the dismissal of the


action. The deceased shall be substituted by
his legal representatives
the manner
provided for in Sec. 16 of Rule 3 and the
action continues until the entry
final
judgment.

in

of

However, execution shall not issue in favor of


the winning party. The final judgment should
be filed as a claim against the estate of the
decedent without need of proving the claim.
SECTION

21. INDIGENT PARTY

General rule: The rule does not consider

the transferee an indispensabte party.


Hence, the action may proceed witfrout ttre
need to implead him.

Exception; When the substitution by or


joinder of the transferee is ordered by
court.

20

docket

9m Feta @ollr$e of I.sb


2011 CENTRALIZED BAR OPERATIONS
SECTION 22. NOTICE TO THE SOLICITOR
GENERAL

SECTION 1. VENUE OF REAL AGTIONS


The venue is the place where the real property
or any portion thereof is located.

Venue is the place of trial or geographical


location in which an action or proceeding
should be brought.

lf property is located at the boundaries of


two places: File case in either place at the

When the case involves two properties

option of the plaintiff.


located in two different places:

1.

Power of the court to

hear and decide

2.

case,

Jurisdiction over the

May be waived.

subject matter and over


the nature of the action
is conferred by law and
cannot be waived.

lf the properties are the objecl of the


same transaction, file it in any of the
two places;and
lf they are the subjects of two distinct
transactions, separate actions should
be filed in each place unless properly
joined.

SECTION

2.

VENUE

OF

PERSONAL

ACTIONS

May be changed by
the written agreement
of the parties.

Not

ground for

motu pro prio disrfissal


(excepf in summary

procedure)

Cannot be the subject


of the agreement of the
parties.

Ground

for a

motu

proprio dismissal

Requisites for venue agreement to be valid:


1. ln writing;and
2. Executed by the parties before the filing of

3.

There must be exclusivity as

actual residence or place of abode (Raymond


vs. Court of Appeals G.R. No.80380 Sept" 28,
1988).

'

the action.

Residence should be viewed or understood in

its popular sense, meaning the personal,


actual, or physical habitation of a person,

to

the

selection of the venue.

ln the absence of qualifying or restrictive


words (e.9. only, solely, exclusively in this
caurt, in no other court save, particularly,
nowhere else buUexcepf) venue stipulation
is merely permissive and not exclusive,

meaning that the stipulated venue is in


addition to the venue provided for in the rules
(Polytrade Corp. vs. Blanco, G.R. No. L-

Venue of personal actions:

1.

Where the PLAINTIFF

or any of the

principal plaintiffs resides;

2. Where the DEFENDANT or anY of the


principal defendants resides; or
3. ln case of a NON-RESIDENT

DEFENDANT, the action may be brought


in the place where he maY be found.

Note:

All at the

ELECTION

of

the

PLAINTIFF.

Means of Waiving Venue:


1. Failure to object via motion to dismiss;
2. Affirmative relief sought in the court where

27033, 1969).

When the stipulation as to . venue

in a

passenger ticket of a vessel wguld be contrary


to public policy of making courts accessible to
all who may have need of their service, the
stipulation is void and unenforceable (Sweef

E,1

l^r;*ffi.

ffiffi ##il t-drW

Lrhes vs. Teves, G:R. No. 28324, May19,


1972).

Note: When the action is no longer based on


the agreement but ON THE TORTIOUS ACT
of sending collection telegrams despite the
fact that the obligation had already been paid,

venue is no longer based on the written


stipulation but at the ELECTION OF THE
PLAINTIFF as fixed by law (Herrera, 2007
Vot.l, p.636).

2l

REMEDIAL LAW
CIVIL PROCEDURE
An action may be filed only when the case

SECTION

2.

MEANING OF TERMS

involves:

a.
b.

Personal status of plaintiff


Venue:
Where plaintiff resides; and
Any property of said defendant located
in the Phil. Venue: Where the

property

or any portion

Rules on Summary Procedure (Givil Cases)


Filing of verified
complaint with the MTC

thereof is

situated or found.
Court may dismiss
the case outright

The Supreme Court has the power to order a


change of venue to prevent a miscarriage of

justice.

Note: The court may NOT motu

proprio

dismiss a complaint on the ground of improper

venue (Dacoycay vs. lAC, G.R. No. 74854,


April 2, 1991). An exception is provided in
Secfibn 4 of the Rule on Summary Procedure.

SECTION

4.

WHEN RULE

W/in 10 days from


receipt of summons,

lf Defundant faib b
in 10 days-

defendant answers,
incoporating

Thecourt,

compulsory
counterclaim or
crossclaim, and serves
a copy on plaintiff.

an*

mduprwps

on plaintiffs motion, may


render judgment based on
alleged in the complaint
w/o prejudice to
Rule 9, Sec. 3 (c).

NOT

APPLICABLE
The rule on venue is inapplicable in cases:

1. Where a

or /aw provides
othenvise (i.e. an action for damages

2.

specific rule

10 days

arising from libel); or

counterdaim, All crossdaims

The parties have validly agreed in writing

before the filing of the action on the


exclusive venue thereol (Sec. 4).

SECTION 1. UNIFORM PROGEDURE

impliedly applies onty

courts; or

5 days after

conference, court issues


record of preliminary

conference

lf sole defendant fails to


appear, plaintiff is
entitled to judgment
based on complaint and
what is proved therein.

to either of said

ln civil cases governed by the Rule

Summary Procedure.

dismissed.
Preliminary
conference within
30 days after last
answer is filed

Win

The procedure in the MTC shall be the same


as in the RTC, EXCEpT:
1. Where a particular provision expressly or

2.

Answer to counterclaim
and crossclaim within

lf plaintiff fails to appear in


preliminary conference,
complaint may be dismissed.
Defendant entitled to
decision based on his

on

Win 10 days fom


receipt of order,
submission by the

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

22

&

lLrilt

$en Fela Gdlege of Leb


2011 CENTRALIZED BAR OPERATIONS
Prohibited Pleadings or Motions under the
Rule on Summary Procedure
(DaBaNa PEMP'D DiRTt)
1. Motion to glismiss the complaint or to
quash the complaint or information except
on the ground of:

a. lack of jurisdiction over the subject


matter, or
b. failure to comply with the preceding
3.

4.
5.
6.
7.
8.

section; (refenal to lupon)


Motion for a lill of particulars;
Motion for new trial, or for reconsideration
of a judgment, or for reopening of triat;
letition for relief from judgment;
Motion for extension
time
file
pleadings, affidavits or any other paper;

of

Semoranda;

Petition

for

to

governed

appealable to the RTC.


procedure no longer applies.

further appeal that may be taken.

Note: Please

'

o
o

The filing of a prohibited pleading wiil not


suspend the period to file an answer or to
appeal.

motion to dismiss is a
prohibited pleading, its fiting after the

Although

Procedure.

Katarungang Pam baran gay Law


(Title One, Book lll, RA 7160)
No complaint, petition, action, or proceeding

involving any matter

cause undue delay (Heirs

of

O/fuas ys.

Flor,'G.R. No. 78343, May 21, I9B8).

A motion to dismiss may be treated as an


answer (Rosa/es vs. Court of Appeats,
G.R. No. 137566, Feb 28,2001).

Note: While a motion to declare the defendant

in default is prohibited by the rutes on


summary procedure, the plaintiff may

(BETWEEN

INDIVIDUALS/NATURAL PERSONS) within


the authority of the /upon shall be filed or
instituted directly in court or any other
government office for adj ud ication,
UNLESS:

1. There has been


BETWEEN

2.

answer had already been submitted does


not constitute a pleading prohibited by the

summary rules. What the rules proscribe is


a motion to dismiss that would stop the
running of the period to file an answer and

refer to the special laws on the


of the Rules on Summary

salient features

prohibition against any interlocutory order

issued by the court;


Motion to gleclare the defendant in default;
10. Dilatory motions for postponement;
11. Eeply;
12. Third party complaint; and
13. lntervention

The decisions of the RTC (On appeal) in

civil cases under this rule, including


ejectment cases, are IMMEDIATELY
EXECUTORY without prejudice to a

certiorari, mandamus, or

of inferior courts in cases


by summary procedure are

Judgments

CONFRONTATION
the

THE PARTIES before

lupon chairman or pangkat, and

That no conciliation or settlement has


been reached OR unless the settlement
has been repudiated by the parties
thereto.

Cases NOT covered by the Katarungang

Pambarangay Law

(SUBSTANTIVE
Exceptions: G-POP RDP J)
1. Where one party is the government or any

2.

subdivision or instrumentality thereof;

Where one party is a public officer or


employee, and the dispute relates to the
performance of his
"offi,cial functions;

nevertheless file a motion to render judgmeit


as may be wananted when the defendant fails
to file an answer.

Trial Procedure in Civil Gases


No testimonial evidence is required nor cross-

examination of witnesses allowed. All that is


required is that wiinin 1tO; days from receipt
by the parties of the court,s pre-trial order, they
shallsubmit:

1.

2.

The affidavits of their witnesses; and

Other evidence on the factual issues set


together with
their
papers setting forth ttre taw
and the facts relied upon by them.

ln the pre-triat order,


fgrt! position

23

REMEDIAL LAW
CIVIL PROCEDURE

b.

The parties thereto agree to submit

their

differences

to

amicable
settlement by an appropriate lupon;

7.
8.

Such other classes of disputes which the


president may determine in the interest of
justice; and

Where one of the parties

is a

entity.

iuridical

complaint in court or any government office for


adjudication. (1 0 days to repudiate)

Rules on Venue under the Katarungang


Pambanngayl-aw
1. Disputes between residents of the same
barangay shall be brought for settlement

2.

Note: The court in which non-criminal

cases
not falling within the authority of lhe lupon are
filed may, at any time before trial, motu proprio

refer the case

to the lupon concerned

for

3.

before lupon of said barangay.


Residents of difierent barangays within the
same city or municipality - ln the barangay
where the respondent or any of the
respondents reside at the election of the
complainant.
Disputes involving real property or any

Where real property or

amicable settlement.

interest therein

While the dispute

larger portion thereof is situated.


Disputes arising at the WORKPLACE
where
contending parties are

conciliation,

or

is

under mediation,
the prescriptive

arbitration,

periods for offenses and cause of action under

existing laws shall be intemtpted upon filing of


barangay.

the complaint with lhe punong

Such interruption sfra// NOT exceed 60 days


from the time of the filing of the comptaint with
the punong barangay.

The pafties may go directly to court in the

following instances (PROCEDURAL


Exeeptions: CHAS LACT)
1. Where the accused is under police
gustody or detention;
2. Where the person has otherwise been
deprived

3.

of personal liberty

5.

6.
7.
8.

barangay where such workplace or


institution located.

Note: Please refer to the special laws on the


salient features of the law and on Katarungang
Pambarangay Chart.

SECTION 1. PLEADINGS DEFINED

fiabeas corpus proceeding;

Pleadings are the written statements of the


respective claims and defenses of the parties

injunction, attachment, delivery of


personal property,
support
pendente lite;
Where the action may otherwise be barred
by the gtatute of limitations;
labor Disputes (Montoya vs. Escayq G.R.
No. 82211-12, March

judgment.

Where the gctions are coupled with


provisional remedies such as preliminary

21,1989);

Actions

to

annul judgment upon

compromise (Sanchez vs. Tupaz,


G.R. No. 76690, Feb.21, 19BB).
QARL disputes; and

Disputes involving

the lraditions

of

indigenous cultural community.

The parties may,

at any stage of the

proceedings, agree in writing to have the


matter in dispute decided by arbitration by

either the Punong Barangay or Pangkat.

The settlement and arbitration agreement may


be repudiated on the ground that consent is

vitiated by fraud, violence, or intimidation.


Such repudiation shall be sufficient basis for
the issuance of the certification for filing a

24

the

employed or at the |NST|TUT|ON,where


such parties are enrolled for study - ln the

calling , for

and

4.

4.

submitted

to the court fbr

appropriate

Purpose of pleadings: (AlD)


1. To apprise the Court of the rival claims in
a judicial controversy submitted for trial
and decision;

9nu Fete

@ollcge of

Lsb

2011 CENTRALIZED BAR OPERATIONS

3. The g[etails of
Only 9 kinds

of

pleading are allowed

Any

application for

relief not by a pleading


is a motion.

May be oral

Note:

motion

pleading.

when

made in open court or

Must be written.

in the

to

course

dismiss

is

of

NOT

4,

SECTION

SECTION 2. PLEADINGS ALLbWED


1. Complaint;
Counterclaim;
Cross-claim;
Third-party Comptaint;

2.
3.
4.
5. Complaint-inintervention;
6. Answer;
7. Reply;
8. Counter-counterclaim; and
9. Counter-Crossclaim.

May or may not contain a counterclaim.

allegations in the pleading of the claimant,


bar
recovery by him.

would nevertheless prevent

or

Affirmative defenses include

fraud,

prescription, release, payment, illegality,

statute

of

frauds, estoppel,

former

recovery, discharge in bankruptcy, and


another matter by way of confession and
avoidance.

2.

It should contain a concise staternent of the


ultimate facts constituting the plaintiffs cause
of action, not evidentiary facts or legal

Negative Defenses

It refers to a specific denial of the


material facts or facts alleged in the
pleading of the claimant essential to his
cause of action.

conclusions.

Ultimate facts refer to the essential facts

Two Kinds of Defenses that may be set


forth in the answer
1. Affirmative Defenses
It is an allegation of a new matter which,
while hypothetically admitting the material

complaint is the pleading aileging the

constituting the plaintifPs cause of action.

to

SECTION 5. DEFENSES

3. COMPLAINT

plaintiffs cause or causes of acilon.

may likewise be the response

counterclaim or a cross-claim.

SECTION

4. ANSWER

Answer is the pleading where the defendant


sets forth his affirmative or negative defenses.

It

HOWEVER, there are motions that actually


seek judgment like a motion for judgment on
pleadings (Rule 34) and motion for summary
judgment (Rute 35).

probative matter or

particulars of evidence, statements of law,


inferences and arguments; and
An gllegation that a contract is valid or
void is a mere conclusion of law.

lnsufficient denial or denial amounting to


admissions

1.

Generaldenial; and

A fact is essenfia/ if it cannot be stricken out


without leaving the statement of the cause of
action insufficient.

Test of sufficiency of the facts alleged in

the complaint

Determine whether upon the avernent of


facts, a. valid judgment may be properly
rendered.

What are NOT Uttimate facts: (ELDA)

1.

lvidentiary or immaterial facts;

2. legal

conclusions, conclusions or
inferences of facts from facts not stated, or
inconect inferences or conclusions from
facts stated;

alleg

25

REMEDIAL LAW
CIVIL PROCEDURE
SECTION

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

6. COUNTERCLAIM

March 16. 1968), frE remedy strcre a


counterdaim is beyond the jurisdiclbn of
the MTC is to set off the claims and file a

Counterclaim is any claim which a defending


party may have against an opposing party.

separate action to collect the balance.

Nature of a counterclaim

A counteiclaim is in the nature of a

cross-

complaint. Although it may be alleged in the


answer, it is not part of the answer. Upon its
filing, the same proceedings are had as in the
original complaint. For this reason, it must be
answered within ten (10) days from service.

Gounterclaims may either be:

2.

Compulsory;or
Permissive.

sEcTtoN

COMPULSORY

7.

COUNTERCLAIM

Gompulsory Counterclaim

the opposing party's claim and does not


require for its adjudication the presence of

It does not require for


its adjudication the
presence of third
parties of whom the
court cannd acquire

It may require for its


adjudication the
presence of third
parties over whom the
court cannot acquire

Need not be

It is NOT baned even


if not set up in the
action.
Must be answered,
otherwise, the
defendant can be
deelared in defauft.

answeredi no default.

third parties of whom the court cannot acquire


jurisdiction.

Requisites of a compulsory counterclaim

1. lt

must arise out of, or be necessaily


connected with, the transaction or

2.
3.
4.

occunence that is the subject matter of the


opposing party's claim;
lt does not require for its adjudication the
presence of third pafties of whom the court
cannot acquire jurisdiction;
lt must be within the jurisdiction of the
court; and
lt must be cognizable by the regular courts
of justice.

Rules on Gompulsory Counterclaim


A counterclaim before the MTC must be within
the jurisdiction of said court, boffr as fo fhe

Notei A plaintifi who fails or chooses not to


answer a compulsory counterclaim may not be
declared in default, principally because the
issues raised in the counterclaim are deemed
automatically joined by the allegations of the
complaint (Gojo vs. Goyala, G.R. No. 26768,
Oct.30, 1970).
General Rule: A compulsory counterclaim not
set up in the answer is deemed barred.

Exceptions:
lf it is a counterclaim which either matured
or was acquired by a party after serving

a.

be pleaded

his
by

9,

amount and nature thereof.

ln an original action

t::;#,bLy-w"ffix
before

of

nor is it necessarily
connected with the
subject matter of the
opposing party's claim.

is one which,

being cognizable by the regular courts, arises


out of or is connected with the transaction or
occurence constituting the subject matter of

It does not arise out

One which arises out


of or is necessarily
connected with the
transaction or
occurrence that is the
subject matter of the

a-

the RTC, the

counterclaim may be considered compulsory

## **ew

regardless of the amount.

or
of

However, the natuie of the aetion is always


material such that unlawful detainer cannot be
set up in the RTC.

by

lf a counterclaim is filed in the MTC in


ex@ss of its jurisdictional amount, the
excess is considered waived (Agustin vs.
Bacalan, O.R. No. 46000, March 18,

the

ground for

at the

st choose only

counterclaim

1egq.

26

event

are
that a

5un

Fell GoIIege of L^tu

2O11 CENTRALIZED BAR OPERATIONS


one remedy. lf he decides to file a motion

to

dismiss,

he

cannot

set up

his

counterclaim. But if he opts to set up his

in which case,
it is called a

counterclaim, he may still plead his ground

for dismissal as an affirmative defense

compulsory
counterclaim,
or it may not,
in which case
it is called a
permissive
counterclaim.

in

his answer.

sEcTtoN 8. cRoss-clArM
Gross Glaim is any claim by one party against
a co-party arising out of the transaction or
occurrence that is the subject matter either of
the original action or of a counterclaim therein.

Requirements for a Cross- Glaim;

1. A claim by one party against a co-party;

2. lt must arise out of the subject matter of


the complaint or of the counterclaim; and
3. The cross-claimant is prejudiced by the
claim against him by the opposing party.

Purpose: To seftle in a single proceeding all


the claims of the different parties in the case
against each other in order to avoid multiplicity

of suits (Republic vs. Paredes, G.R. No.

l-

12546, May 20. 1960).

lf it is not set up in the action, it is BARRED.


except:

1. When it is outside

2.

3.
o

the jurisdiction of the

court; or
lf the court cannot acquire jurisdiction over
third parties whose presence is necessary

for the adjudication.of said cross-claim. ln


which case, the cross-claim is considered
PERMISSIVE;or
Cross claim that may mature or may be

acquired after service


(Riano,2007, p.285)

of the answer.

The dismissal of the complaint carries with


it the dismissal of a cross-claim which is

purely defensive, but not

cross-claim

seeking an affirmative relief.

Against a
peison not a
party to the
action.
Must arise out
of the

transaction
that is the
subject matter
of the original
action or of a
counterclaim
therein.

May arise out


of or be
necessarily
connecled
with the
transaction or
the subject
matter of the
opposing
party's claim,

Must be in
respect of the
opponent's
(Plaintiff)
claim.

NO NEED for
a leave of
court.

NO NEED for
a leave of
court.

SECTION 9. COUNTER.COUNTERCLAIMS
AND COUNTER.CROSS.GLAIMS
Gounter-Counterclaim

is a claim

asserted

against an original counterclaimant.

Counter-Grossclaim is a claim filed against


an original cross-claimant.
SECTION {0. REPLY

Reply is the response of the plaintiff to the


defendant's answer, the function of which is to
deny or allege facts in denial or in avoidance

of new matters alleged by way of defense in


the answer and thereby join or make issue as
to such new matters.

Effect of Failure to File a Reply

General Rule: Filing

reply

is

merely

optional. New facts that were alleged in the


answer are deemed controverted should a'
party fail to reply thereto.

Exceptions:
Reply is required:
1. Where the
AC
; and

based

an
Rule

Note:

c
deem
tn

an

to file

27

REMEDIAL LAW
CIVIL PROCEDURE

sEGnoN {1.

THTRD (FOURTH, ETC.) _

SEGTION 12. BRINGING NEW PARTIES

PARTY COMPLAINT

Third

Distinguished from a Third-party complaint

Party Comptaint is a claim that a


defending party may, with leave of court, file
against a person not a party to the aciion for
gontribution, lndemnity, gubrogation or gny

other relief (CISA),

in

respect

of

purpose and function.

Tests to determine whether the third-party


complaint is in respect of plaintiff's claim

2.
3.

SECTION 1. CAPTION
The Caption contains the following:
1. The name of the court;
The title of the action; and
The docket number if assigned.

SECTION

of

court to file a third-party


be obtained by motion

15_

on third, fourth, etc.-party

defendant must be served for the court to


obtain jurisdiction over his person, since
he is not an original party.

Where the trial court has jurisdiction over


the main case, it also has jurisdiction over
the third-party complaint, regardless of the
amount involved as a third-party complaint
is merely auxiliary to and is a continuation
of the main action (Repu blic vs. Central
Surety & Insurance Co., G.R. A/o. L27802, act.26, 1968).

A third-party complaint is not proper in an


action for declaratory reliel (Commissrbner

of

Cusforns

TO

PARTS OF A PLEADING

claim.

Leave

13.

ANSWER
THIRD
(FOURTH, ETC.) - PARTY COMPLAINT

2.
3.

Whether the third-parg defendant may


assert any defenses which the third-party
plaintiff has or may have to the ptaintiffs

Summons

SECTION

the original defendant; and

under Rule

'

the
defendants in a counterclaim or cross-claim is
already a party to the action, then the other
necessary parties may be brought in under
this section.

same

transaction on which the plaintiff's claim is


based, or although arising out of another
or different transaction, is connected with
the plaintiffs claim;
Whether the third-party defendant would
be liable to the plaintiff or to the defendant
for all or part of the plaintiffs claim against

complaint may

to the main action. lf one or more of

his

opponent's claim. There could also be a


fourth, etc.; - party complaint with the same

1. Whether it aiises out of the

A third-party complaint is proper when not one


of the third-party defendants therein is a party

ys. Cloribet, G.R. /Vo.

21036, June 30, 1977).

L-

2.

THE BODY

The Body sets forth:


lts designation;

1.
2. The allegation of the party's claims and
defenses;
3. The relief prayed for; and
4. The date of the pleading.
Note:

lt is not the caption of the pleading but

the allegations therein which determine the


nature of the action and the court shall grant
relief warranted by the allegations and proof

even

if no such relief is prayed lor

(Riano,

2007, p.46).

{{"&ft ffiffiWf4

Brings into the action


third person who

was not originally

in its

party.

lnitiative is with the


person already a
party to the action.

28

Initiative

is with

non-party who seeks


to join the action.

be

9en Fe[a Gollege

ot

Ltr

2011 CENTRALIZED BAR OPERATIONS

Disciplinary action
following cases:

on

in

counsel

the

1. Deliberately filing an unsigned pleading;


2. Deliberately signing a pleading in violation
of the Rules;
3. Alleging scandalous or indecent matter in
the pleading; or
4. Failing to promptly report a change of his
address.
SECTION 4. VERIFICATION

Pleadings need NOT

How 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 personal knowledge or
based on authentic documents.

of the petitioi nave been made ii good


faith, or are true and correct, not merely
speculative (Sarmiento v. Zaratan, G.R.
No. 167471, February 5, 2A07).

List of pleadings that should be VERIFIED


(NOT EXCLUSTVE)

asserting claims

2.
3.
4.

6.

initiatory pleadings

for relief (including

permissive counter-claims). (See Sec.


Rule 7, Rules of Civil Procedure)

5,

Statement of Claim for Small Claims


Cases, as well as the Response thereto
(See Secs. 5 & 11, Rules of Procedure for
SmallClaims Cases)
Complaint for injunction (See Sec.
5fl Rules of Civil Procedure)

4, Rule

Application

receiver

for

appointment

Procedure)
Petition for

forcible entry

Rules of Civil Procedure)


12. Appeal by Certiorari under Rule 45, from
Appeals
Supreme Court
Court
(See Sec. 7, Rule 45, Rules of Civil
Procedure)
13. Petition for Certiorari (special civil ac{ion)
under Rule 64 (See Sec. 2, Rule 64, Rules
of Civil Procedure)
14. Petition for Certiorari (special civil action)
under Rule 65 (See Sec. 7, Rule 65, Rules
of Civil Procedure)
15. Petition for Prohibition under Rule 65
(See Sec.
Rule 65, Ru/es 'of Civil
Procedure)
'16. Petition for Mandamus under Rule 65
(See Sec.
Rule 65, Rules of Civil
Procedure)
guardian
appointment
17. Petition
(See Sec. 2, Rule 93, Rules of Court)
18. Petition for leave filed by guardian to sell
estate
encumber property
(See Sec. 1, Rule 95 Ru/es of Court)
19. Petition for declaration of competency of a
ward (See Sec. /, Rule 97, Rules of Court)
20. Petition for habeas corpus (See Sec. 3,
Rule 102, Rules of Court)
21. Petition for change of name (See Sec. 2,
Rule 103, Rules of Court)
22. Petition for voluntary judicial dissolution of
corporation (See Sec. 1, Rule 105,

to

of

or

3,
for

Rules

of

of an

or

of

Court; see also Sec.

Corporation Code)

1, Rule 59, Rules of Civil


Procedure)'
Application for support pendente lite
(See Sec. 1, Rule 69, Rules of Civil
(SeeSec.

Rules of Civil Procedure)

10. Petition for Review from RTC to Court of


Appeals (See Sec. 1, Rule 42, Rules of
CivilProcedure)
11. Petition for Review under Rule 43, from
CTA and other quasi-judicial agencies to
Court of Appeals (See Sec. 5, Rule 43,

2,

The purpose of requiring a verification is to


secure an assurance that the allegations

1. Civil complaints or

Petition for Review from the RTC to the


Supreme Court (See Sec. 2[c], Rule 41,

of

be verified

EXCEPT
when othenryise provided by the law or rules.

'l.
2.

9.

23. Petition for cancellation


entries in

119,

or correction of
Rule 108

See

unlaMul

detainer, the answers thereto, and the


answers to any compulsory counter-claim

and

cross-claim pleaded

in

the

answer (See Sec. 4, Rule 70, Rules of


CivilProcedure)
7.
8.

Petition for indirect contempt (See Sec. 4,


Rule 71, Rules of Civil Procedure)
Petition for relief from judgment or order.
(See Sec.
Rule 38, Rules of Civil
Procedure)

3,

29

REMEDIAL LAW
CIVIL PROCEDURE
TEST to determine the presence of forum
shopping: Whether in the two (or more) cases
pending, there is identity in terms of the
following:
Parties or identity of interests represented
(Cf. Fkst Phil. lntemational Bank, et at. vs.
C.A., G.R. No. 115849, January 24, 1996);
Rights or causes of action; and
Relief sought.

1.

2.
3.
. The. certificate is to be executed by
petitioner, and not by counsel, unless the
latrer is specifically authorized to do so.

Ratio: The party himself has actual knowledge


or knows better than anyone else, whether he

has initiated similar actions in other courts


agencies or tribunals (Riano, 2007, p. 56).

Three Ways of Gommifting

the case, without prejudice, unless othenrvise


provided, upon motion (not motu proprio) and
after hearing.

Effect of Submission of False Certification

or Non4ompliance with the Undertakings


Therein

1. lndirect contempt; and


2. Without prejudice to the filing

of

aCministrative and criminal actions against


the counsel.

Effect

of Willful and

Deliberate Forum

Shopping

1.

2.

Shall be ground for summary dismissal of


the case with prejudice; and

Direct contempt, as well as

a cause for

administrative sanctions.

Forum

Shopping:

'1.

2.
3.

Filing multiple cases based on the same


cause of action and with the same prayer,
the previous not having been resolved yet
(litis pendentia);
Filing multiple cases based on the same
cause of action and with the same prayert
the previous having been resolved with
finality (res judicata);
Filing multiple cases based on the same
causes of action but with different prayers
(splitting of cause of action, where the
ground for dismissal is also litis pendentia
or res judicata) (Ao-As vs. CA, et al., G.R.
No. 128464, June 20,2006).

Note: The certificate of non-forum shopping is

a mandatory requirement in filing a compliint

SECTION

I.

IN GENERAL

Every pleading shall contain in a methodical


and logical form a plain, concise and direct
statement of the ultimate facfs, omitting the
statement of mere evidentiary facts.

Ultimate Facts refer to those which directly


form the basis of the right sought to be
enforced or the defense relied upon. lf the
ultimate facts are NOT alleged, the cause of
action would be insufficient.

Evidentiary Facts refer to those which are


necessary to prove the ultimate fact or which

and olher initiatory pleadings assLrting a ctaim


or relief (Sec. 5, Rule 7, Rutes of Court).

furnish evidence of the"existence of some

f!e96

Test to Distinguish Conclusion of Law from


Statement

initiatory pteadings inctude not onty the


original complaint but also:

1.

other facts.

Permissivecounterclaim;

2. Cross-claim;
3. Third (fourth, etc.) - party cornptaint;
4. Complaint-in-intervention; and
5. Petition or application wherein the party
asserts his claim for relief.

The rule does not require a certificate against


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

lt is

Effect of Failure to Compty

A party

the
pleading but shall be cause for the dismissal of

as he

Not curable by mere amendment of

30

defenses
but each

Ssn Felu

@ollege ot 1[.ub

2011 CENTRALIZED BAR OPERATIONS

Facts that may be Averred Generally: (CGC


LeMJO)
L Gonditions precedent (BUT there must still
be an allegation that the specific condition

precedent

has been complied with,

otherwise, it will be dismissed for lack of

2.
3.

cause of action; Sec. 3);


Capacity to sue or be sued (Sec. 4);

Qapacity

to sue or be sued in

2.

By setting forth what is elaimed to be the


facts.

Where the actionable document is properly

alleged, the failure to specifically deny


under oath the same rcsults in:
1. The admission of the genuineness and
due execution of said document, EXCEPT
that an oath is not required:

a.
b.

representative capacity ( Sec. 4) ;

4. $gal existence of an organization

(Sec.

4),

Note: A party desiring to raise an issue as


to the legal existence or capacity of any

party to sue or be sued in a representative


capacity shall do so by SPEC|FtC DENIAL
which shall include supporting particulars
within the pleader's knowledge.

5.

Malice, intent, knowledge,

or

other

condition of the mind (Sec. 5);

Ratio: lt is dlfficutt to state the particulars

7.

party to the instrument; OR


When compliance with an order for an
inspection was refused.

2. The document heed not be formally


offered in evidence.

Genuineness means that the instrument is:

1.

Not spurious, counterfeit, or of different


import on its face from the one executed

2.

That the party whose signature

3,

by the party; or

it

bears

has signed it; and

That at the time it was signed, it was in


words and figures exactly as set out in the

constituting these matters.

6.

When the adverse party was not a

pleadings.

judgments of domestic or foreign courts,


tribunals, boards, of officers (no need to
show jurisdiction (for it is presumed; Sec.
6); and

Qfficial document or act (Sec. 9).

pacts inat must be Averred particularly:


The circumstances showing fraud or mistake
in all averments of fraud or mistake (Sec. 5).

Due Execution means that the

document

was:

1.

Signed voluntarily and knowingly by the

2.

That

3.

party whose signature appears thereon;


if signed by somebody else such

representative had the authority to do so;


and

That it was duly delivered, and that the


formalities were complied with. (Hibberd
vs. Rhode, G.R. No. 84"N8. Dec. S, 1915)

SECTION 7. ACTION OR DEFENSE BASED


ON DOCUMENT

to a written
instrument upon which the action or defense is
based.

Actionable Document refers

Two permissible ways

of

pleading

DEFENSES, not being


inconsistent with the genuineness and due
execution, are NOT WAIVED despite failure
to specifically deny under oath:

The following
(FEW MPM DiSC)

an

actionable document
1. By setting forth the substance of such
document in the pleading and attaching

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said document thereto as an exhibit


(contents of the document annexed are
controlling, in case of variance in the

2.

substance of the document set forth in the


pleading and in the document attached);
or
By setting forth said document verbatim in
the pleading.

SFCTION

8. HOW TO

CONTEST SUCH

DOCUMENT

BUT

1.

3.

The

an
its

How to Gontest an Actionable Document

1.

By specific denial under oath; AND

31

REMEDIAL LAW
CIVIL PROCEDURE

5.

At the time the document was signed, it


was not in words and figures exactly as
set out in the pleading.

Note: Failure to specifically deny under oath


the genuineness and due execution of an
actionable document generally implies an
admission of the same by the other party.
However, such IMPLIED ADMISSION lS
DEEMED WAIVED if the party asserting the
same has allowed the adverse party to present
evidence contrary to the contents of such
document without objection (Central Surefy rzs.
Hodges, G.R. No. 12730, August 22, 1960).

Exceptions:

1. Allegations

2.
3.

as to the amount of
unliquidated damages;
Allegations immaterial to the cause of
action; and
Conclusion of law.

Note: Admissions may be withdrarm by


amendments. The original pleadings .ue
superseded by the amended pleading (lnwlar
Veneer, lnc. vs. Plan, No. L40155, Sept. 10.
1976).

SECTION 12. STRIKING OUT OF PLEADING


OR MATTER CONTAINED THEREIN

SECTION 9. OFFICIAL DOCUMENT OR AGT


Allegations of merely evidentiary or immaterial
SECTION 10. SPECIFIC DENIAL

facts may be expunged ftom the pleading or


may be stricken out on motion.

Three Ways of Making a Specific Denial

Specific Absolute Denial


By specifically denying the averment and,
whenever practicable, setting forth the
substance of the matters relied upon for

1.

such denial;

NOT PLEADED

General Rule: Defenses and objections not


raised in a MOTION IO DISMISS or in the

Partial Specific Denial

2.

SECTION 1. DEFENSES AND OBJEGTIONS

Part admission and part denial; and

ANSWER are deemed waived.

Disavowalof Knowledge
By an allegation of lack of knowledge or
information sufficient to form a belief as to
the truth or falsity of the averment in the

Exceptions:

opposing party's pleading.

o
.

This does not apply where the fact as

to

which want

of

1. Lack of jurisdiction over the subject matter;


2. Litis pendentia;
3. Res judicata; and
4. Prescription of the action.
. The court shall dismiss the claim if any of
foregoing grounds appears from the

knowledge is

asserted is, to the knowledge of the


court, so plain and necessarily within

the defendant's knowledge that his


averment of ignorance must be

pleadings or the evidnce on record.

These defenses may be raised at any


stage of the proceedings even for the first
time on appeal EXCEPT that lack of

palpably untrue.

. A Negative pregnant is a form of


denialwhich at the same time involves

'

an affirmative implication favorable to


the opposing party. tt is in effect, an
admission of the averment to which it
is directed. lt is said to be a denial
pregnant with an admission of the
substantial facts in the pteading
responded to.

SECTION 11. ALLEGATION NOT


SPECIFICALLY DENIED DEEMED

ADMITTED

General Rule: Ailegatibns NOT specifically


denied are deemed admitted.

32

ba

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5fir Sell

Gollcge of

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2011 CENTRALTZED BAR OPERATTONS


SEGTION

3. DEFAULT;

DECLARATION OF

DEFAULT

It is the failure of the

defendant

to answer

within the proper period. lt is not his failure to


appear nor failure to present evidence.

Two Stages of Default:

1.
2.

Default

to file his

responsive

Rendered by the court


a default

order or after
received,

ex

Procedure

the plaintiff
may move to
declare the
defendant in

default

plaintiffs motion for following


failure of the defendant

Ordinary

After the lapse


of time to file
an answer,

Declaration or Order of default; and


Rendition of Judgment by default.

lssued by the court, on

tn

it

pat7e,

Motion granted:
Court issues order
of default and
renders judgment,
or require plaintiff
to submit evidence
ex pafte.

Before judgment by
default is rendered,
defendant may:
1. Move to set
aside order of
default upon

showing of:
FAME and

that he has a

2.

meritorious
defense;
Avail ot Rule
65 in proper
cases-

Court sets aside


order of default and
defendant is allowed

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33

REMEDIAT LAW

CIVIT PROCEDURE

Note: Failure of the defendant to attend the


pre-trial is a cause for the court to order the
plaintiff to present his evidence ex parte and
for the court to render judgment on the basis
thereof under the Rules. This consequence is
NOT to be called a declaration of default (Sec.
5, Rule 18).

General Rule: Default order and consequenfly


a default judgment are triggered by the fiailure

of the defending party to file the

required

answer (Sec. 3, Rule 9).

Effect of an Order of Default

1. The court shall

proceed

to

.erder

judgment granting the claimant such relief


as his pleading may warrant; OR in ils

2.
3.
4.

discretion

to

Shall require the claimant


submit
evidence;
Loss of standing in court of the defaulting
party (Cavile vs. Florendo G.R. No. 73039,
Oct.9, 1987); and
Defendant

is still

entitled

to

notices of

subsequent proceedings

Exceptions: A judgment by defautt may be


in the following cases despite an

Relief from Order of Default: filotion to


Order of Default

1. lf a

Requisites:

rendered

answer having been filed:

2.

party refuses

to obey an order

requiring him to compty with the various


modes of discovery gec. 3[c], Rute 29): or
lf a party or officer or managing agent'of a

party willfuily fails to appear before the


officer who is to take his deposition (Sec.
5, Rule 29) (Riano, 2007, p.297).

Elements of a Valid Declaration of Default:


1. The court must have vatidly ACQUIRED
JURISDICTION over the person of the

2.
3.
4.

defendant either by service of summons or


voluntary appearance;
The defendant FATLS TO ANSWER within
the time allowed therefore;
There must be a MOTION to declare the
defendant in default;
There must be NOTICE to the defendant
by
_serving upon him a copy of such
motion;

5. There must be pROOF of such failure to


answer; and
6. There must be a HEARING to dectare the
defendant in default;

1.

2.

particulars (Feria, 2001,

34

p. 1Se.

1.
2.
3.
4.

Note: A defendant declared in default cannot

take part in the trial, but he cannot be


disqualified from testifying as a witness in

favor of non-defaulting defendants (Cavite vs.


Florendo G.R. No. 73039,gcL 9, 19en.

lf the defendant was declared in default


upon an original complaint, the fiting of the
Hence

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to be fited;
.$ummary Procedure.

order denying motion to dismiss or for bill of

Meritoriousdefenses.

Rights of a Party in Default:


Entitled to notice of
Motion to declare him in default;
Order declaring him in default;
Subsequent proceedings; and
Service of final orders and judgments.

comment instead of an answer is required

again from the moment defendant receives the

mistake or excusable negligence; and

ln such a case, the order of default may be set

1 Annulment of marriage;
Qeclaration of nuilitybf mairiage;
?.
3. lggalseparation;
4. Special civil actions of certiorari,
prohibition and mandamus where

May a defendant be. declared in default


while a motion to dismiss or a motion for
bill_ of particulars remains pending and
undisposed of?
NO, because the filing of a motion to dismiss
or motion _for bill of particulars interrupts the
running of the period to answer. lt will run

Verified motion showing fraud, accident

aside on such terms and conditions as the


judge may impose in the interest of justice
(Rule 9 Secflon 3 (b) Rules of Court).

Wherb no Defaults are Ailowed: (ADLeS)

5.

Lift

are
RA
lnc.

complaint.
to

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2011 CENTRALIZED BAR OPERATIONS


Partial Default
1. The pleading asserting a claim states a
common cause of action against several
defending parties;

2. Some of the defending parties answer and


the others fail to do so; and
3. The answer interposes a common
defense.

Effect of Partial Default

The court will try the case against

ALL

defendants upon the answer of some except


where the defense is personal to the one who
answered, in which case, it will not benefit
those who did not answer.

The Extent of Relief to be awarded in

SECTION

1. AMENDiIENTS IN GENERAL

Pleadings may be amendedby:


1. Adding an allegation of a party;
Adding the name or substitution of a party;
Striking out an allegation of a party;
Striking out the name of a Party;

2.
3.
4.
5.
6.

Correcting

mistake in the name

of

party; and

Correcting a mistake or inadequate


allegation or description in any other
respect.

Judgment by Default shall not:

1. Exceed the amount prayed for; NOR


2. Be different in kind from that prayed for;
NOR
3. Award unliquidated damages.

Types of Amendments:

1. Amendment

as a matter of right

the

party has the unconditional right to amend

his pleading. The court has no right to


prevent him from amending. The'opposite

party has

Remedies from judgment by default (flow


chart)

no right to

oPPose the

amendment (lf the court refused to admit


the amended pleading as a matter of right,
it is correctible by mandamus.).

2.

Amendment as a matter of iudicial


discretion - the court may or may not

allow the amendment. The'other party has

Motion for new trial or reconsideration at


any time after service of judgment by
default and within 15 (30) days therefrom

the right to oppose (Amendment by leave


of coutt).

SECTION 2. AMENDMENTS AS A MATTER


OF RIGHT

Failure to file motion for new trial/


Denial of said motion

Perfect appeal from said judgment by


default within the balance of said
15 (30) - day period

is matter of right before a


responsive pleading /s SERVED, or in case of
a Reply, within 10 days after it was SERVED'

Amendment

Such right can only be exercised ONCE.


Subsequent amendments should be made
party

only by

S*d$i$ffiffio1"

Petition for relief frsm judgment within


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

Annulment of Judgment

under Rule 47

35

REMEDIAL LAW
CIVIL PROCEDURE
lnstances When Amendment is a Matter of
Right:

1. Amendment of

2.

complaint before an

answer is filed;

Amendment of answer before a reply is


filed or before the period for filing a reply
expires;

3.

Amendment

4.

days after it is served; and


Formal amendment.

of reply any time within

r The cause of

in

action stated
the
supplemental complaint must be the same
as that stated in the original complaint.
Otherwise, the court should not admit the

supplemental complaint
lrusf vs. G.R. No.

Privatization

(Assef

121171

Dec.29, 1998).
10

SECTION 3. AMENDMENTS BY LEAVE OF


COURT

Refers to '

AT
TIME of
existing

facts
THE
the

Refers to facts arising


AFTER THE FILING of
the original pleading.

mmmencement of

Leave of Court is required:


1. lf the amendment is substantial;AND
2. A responsive pleading had already been
served.

1.

Takes the place of


a

of right as
when no responsive
pleading has yet
matter

There must be a motion filed in court;

Taken together

with

the original pleading.

Can be made as

Requisites:

2, Notice to the adverse party; and


3. Opportunity to be heard afforded

the action.

Always with leave of


court.

been filed.

to the

adverse party.

lnstances when amendment by leave of


court may NOT BE ALLOWED:
1. When the cause of action, defense or
theory ofthe case is changed;
2. Amendment is intended to confer
jurisdietion to the court;

3. Amendment to cure a premature or nonexisting cause of action; and


4. Amendment for purposes of delay.
SECTION 4. FORMAL AMENDMENTS

SECTION 5. AMENDMENT TO CONFORM


TO OR AUTHORIZE PRESENTATION OF
EVIDENCE

When an
pleading

amended

is

filed,

new copy of

the

supplemental

pleading does not


require the filing of a

entire pleading must

new copy of the entire

be flled.

pleading.

7.

SECTION

FILING

OF

AMENDED

PLEADINGS

An amendment which merely

supplements

and amplifies facts originally alleged in the


complaint relates back to the date of the
commencement of the action and is not barred
by the Statute of Limitations which expired
after service of the originalcomplaint (Verzosa
vs. CA, G.R. No 119511-13, Nov.24, 1998).

sEcTroN

8.

EFFECT

OF AMENDED

PLEADING

When issues NOT RAISED in the pleadings


are tried with the express or implied consent of
parties:

1. They shall be treated

2.
3.

as if raised in the
pleadings;
Pleadings may be amended to conform to
the evidence; and
Failure to amend does not affect the result
of the trial of these issues.

Effect of
ame

rffi
ffi#?egFffi

SECTION 6. SUPPLEMENTAL PLEADINGS


ts

Supplemental Pleadings - those which aver


facts occurring after lhe filing of the original
pleadings and which are material to the

matured claims and/or defenses therein

alleged (Herrera vol.l p. 603).

36

may be

9m Felu Gollege ot 1[,cb


2O1t CENTRALIZED BAR OPERATIONS

not be offered in evidence pursuant to

counted from notice

Section 4 of Rule 129.

admifting the same.

of the court order

The Rule shall apply to the answer to an


amended counterclaim, amended cross-

claim, amended third

(fourth,etc.-party

complaint, and amended complaint-inSECTION 1. ANSWER TO THE COMPLAINT

2. ANSWER OF A DEFENDANT
FOREIGN PRIVATE JURIDICAL ENTIW

SECTION

ANSWER to a complaint

1.

Wthin 15 days after service of summons,


UNLESS a different period is fixed by the
Court;

2.

ln case the defendant is a foreign private


juridical entity:
a. lf it has a resident agent - Within 15

b.

days after Fervice of summons to him;


lf it has no resident agent, but it has
an agentor officer in the Philippines

Within 15 days after service of

c.

summons to said agent or officer;

lf it has no resident agent nor agent


nor officer - in which case service of
summons is to be made on lhe proper

government office (now the SEC)


which willthen send a copy thereof by
registered mail within 10 days to the

home office of the foreign private


corporation - within 30 days after
receipt of summons by the home

intervention).
lf NO NEW ANSWER lS FILED, answerto
original pleading shall be deemed as
answer to the amended pleading.

SECTION 4, ANSWER TO COUNTERCLAIM


OR CROSS.CLAIM

counterclaim

or

cross-claim must be

answered within 10 days from service.

sEcTroN 5. ANSWER TO THIRD (FOURTH,

COMPLATNT
The third-party defendant is served
ETC.)-PARTY

with

summons just like the original defendant.


Hence, he also has 15, 30, or 60 days from
service of summons, as the case may be, to

file his answer.


SECTION 6. REPLY

A reply may be filed within 10 days from


service of the pleading responded to.

SECTION 7. ANSWER TO SUPPLEMENTAL


COMPLAINT

office of the foreign private entity.

3. ln case of service of summons by


publication - Within the time specified in
the order granting leave to serye

Answer to a supplemental complaint must be


filed within 10 days from notice of the order
admitting the same unless a different period is
fixed by the court.

summons by publication, which shall NOT


be less than 60 days after nolice (Rule 14,
Sec. /5,); and

4.

ln case of a'non-resident defendant on


whom extraterritorial service of summons
is made, the period to answer should be at
least 60 days.

The court may extend the time to file the

pleadings BUT may NOT shorten them.


(ExcepF in Quo Warranto proceedings)

SECTION

3.

ANSWER

TO

rough

AMENDED

GOMPLAINT

1.
2.

lf the filing of an amended complaint is a


matter of right - Within 15 days from

service of the amended complaint.

lf the filing of the amended complaint is


NOT a matter of right - Within 10 days
37

REMEDIAL LAW
CIVIL PROCEDURE
lnstances When Amendment is a Matter of
Right:

1.

2.

Amendment

of

complaint before

an

answer is filed;

expires;

Dec.29,

4.

days after it is served; and


Formal amendment.

of reply any time within

COURT

Leave of Gourt is required:


1. lf the amendment is substantial;AND
2. A responsive pleading had already been
served.

Refers io -

AT
TIME of
existing

facts
THE
the

commencement of

Takes the place of


a

of right as
when no responsive
pleading has yet

There must be a motion filed in court;


Notice to the adverse party; and

afforded

to

Refers to facts arising


AFTER THE FILING of
the original pleading.

the action.

Can be made as

to be heard

121171,

19981.

matter

Requisites:

Opportunity

lrusf vs. G.R. No.

10

SECTION 3. AMENDMENTS BY LEAVE OF

1.

complaint

Privatization

Amendment

in

action stated
the
supplemental complaint must be the same
as that stated in the original complaint.
Otherwise, the court should not admit the
(Assef
supplemental

Amendment of answer before a reply is


filed or before the period for filing a reply

3.

2.
3.

. The cause of

Always with leave of


court.

been filed.

the

adverse party.

lnstances when amendment by leave of


court may NOT BE ALLOWED:
1. When the cause of action, defense or
theory of the case is changed;

When an
pleading

amended

is filed, a

new copy of

the

supplemental

pleading does not


require the filing of a

entire pleading must

new copy of the entire

be filed.

pleading.

7.

SECTION

FILING

OF

AMENDED

2- Amendment is intended to confer


jurisdiction to the court;
3. Amendment to cure a premature or non-

An amendment which merely

4.

and amplifies facts originally alleged in the


complaint relates back to the date of the

existing cause of action; and


Amendment for purposes of delay"

SECTION 4. FORMAL AMENDMENTS

SEGTION 5. AMENDMENT TO CONFORM


TO OR AUTHORIZE PRESENTATION OF
EVIDENCE

When issues NOT RAISED in the pleadings


are tried with the express or implied consent of
parties:

1.

2.
3.

PLEADINGS
supplements

commencement of the action and is not barred


by the Statute of Limitations which expired
after service of the origina{ complaint (Verzosa
vs. CA, G.R. No 119511-13, Nov. 24, 1998).

sEcTtoN

8.

EFFECT

OF AMENDED

PLEADING

Effect of

if raised in the
pleadings;
Pleadings may be amended to conform to
the evidence; and
Failure to amend does not affect the result
of the trial of these.issues.
They shall be treated as

SECTION 6. SUPPLEMENTAL PLEADINGS


ts

Supplemental Pleadings - those which aver


facts occurring after lhe filing of the original
pleadings and which are material to the

matured claims and/or defenses therein

alleged (Henera vot.l p. 603).

36

may be

$sn

Ftlr

@ollege ot

iltb

2O11 CENTRALIZED BAR OPERATIONS

not be offered in evidence pursuant to

counted from notice

Secfion 4 of Rule 129.

admifting the same.

of the court

The Rule shall apply to the answer to an


amended counterclaim, amended cross-

claim, amended third


SECTION 1. ANSWER TO THE COMPLAINT

SECTION 2. ANSWER OF A DEFENDANT


FOREIGN PRIVATE JURIDICAL ENTITY
ANSWER to a complaint

1.

Within 15 days after service of summons,


UNLESS a different period is fixed by the
Court;

2.

ln case the defendant is a foreign private


juridical entity:
a. lf it has a resident agent - Within 1b
days after gervice of summons to him.
b. tf ii has no resident agent, but it has
an agenlor officer in the philippines Within 15 days after service of

c.

summons to said agent or officer;


lf it has no resident agent nor agent

nor officer - in which case service of


summons is to be made on lhe proper

government office (now the SEC)


which will then send a copy thereof by
registered mail within 10 days to the

home office of the foreign private


corporation - within 30 days after
receipt of summons by the home

order

(fourth,etc.-party

complaint, and amended complaint-in-

intervention).
lf NO NEW ANSWER lS FILED, answer to
original pleading shall be deemed as
answer to the amended pleading.

SECTION 4. ANSWER TO COUNTERCLAIM


OR CROSS.CLAIM

counterclaim

or

cross-claim must be

answered within 10 days from service.

sEcTroN 5. ANSWER TO Tl{rRD (FOURTH,


ETC.)-PARTY COMPLATNT

The third-party defendant is served with


summons just like the original defendant.
Hence, he also has 15, 30, or 60 days from
serviee of summons, as the case may be, to
file his answer.
SECTION 6. REPLY

A reply may be filed within 10 days from


service of the pleading responded to.

SECTION 7. ANSWER TO SUPPLEMENTAL


COMPLAINT

office of the foreign private entity.

3. ln case of service of summons by


publication - Within the time specified in
the order granting leave to serve
summons by publication, which shall NOT
be less than 60 days after notice (Rute 14,

Answer to a supplemental complaint must be


filed within 10 days from notice of the order
admitting the same unless a different period is
fixed by the court.
SECTION 8. EXISTING COUNTERCLAIM OR

Sec.15); and

4.

ln case of a'non-resident defendant on


whom extraterritorial service of summons
is made, the period to answer should be at
least 60 days,

The court may extend the time to file the

pleadings BUT may NOT shorten them.


{Except: in Quo Warranto proceedings)

SECTION

3.

COMPLAINT

1.
2.

ANSWER

TO

rough

AMENDED

lf the filing of an amended cornplaint is a


matter of right - Within 15 days from

service of the amended complaint.

lf the filing of the amended comptaint is


a matter of right - Within 10 days

NOT

37

REMEDIAL LAW
CIVIL PROCEDURE
SECTION

1{.

EXTENSION OF TIME TO

SECTION

3.

GOMPLIANCE WTH ORDER

PLEAD
Requisites:
1. There must be a motion;
With service of such motion to other party;
and
On such terms as may be just.

2.
3.

Period to comply with order granting the


motion: Ten (10) days from notice of order
unless a different period is fixed by the court.

The Bill of Particulars may be filed either in a


separate or in an amended pleading, serving a
copy thereof on the adverse party.

SECTION

sEcTtoN

,t.

WHEN APPLIED

FOR;

PURPOSE

Bill of

Particulars

is a

more

definite

a.

Purpose: To aid in the preparation of a

2.

indefinite. The remedy of the defendant is

Galeon, G.R. No. L-30380, Feb. 28, 1973).

3.

May order the striking out of the


pleading or the portion thereof to

which the order is directed; or


Make such order as it may deem just.
lf the plaintiff fails to obey, his complaint
may be dismissed with prejudice UNLESS
otheruvise ordered by the courl (Rule 12,
Secfibn 4; Rule 17, Section 3);

b.

lf defendant fails to obey, his answer will

be stricken off and his counterclaim

dismissed, and he will be declared in


default upon motion of the plaintift (Rule

The motion for bill of particulars shail be filed


before responding to a pleading. Hence, it
must be filed within the period granted by the
Rules (Rule 11) for the fiting of a responsive

12, Section 4; Rule 17, Section 4; Rule

SECTION

2. The paragraphs wherein they are


contained; and
3. The details desired.
. The motion must comply with the

requirements for motions under Sec" 4, 5


and 6 of Rule 75. Otherwise the motion
will not suspend the period to answer

(Filipino Fabricator vs. Magsino, G.R. No.

47574, Jan.29, 1988).

Note: A motion for bill of particulars is not


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

SECTION 2. ACTION BY COURT

The court may either:

1.

Deny;

2. Grant it outright; or
3. Allow the parties the opportunity to be
heard.
38

9,

Section 3).

pleading.

The Motion shall point out


1. The defects complained of;

NON-

insufficient compliance therewith, the

responsive pleading.

to move for a bill of particulars or avail of


the proper mode of discovery (Galecin vs.

OF

court:

with sufficient defi n iteness or particularity.

An action cannot be dismissed on the


ground that the complaint is vague or

EFFEGT

Effect of Nonompliance:
1. lf the Order is not obeyed or in case of

statement of any matter which is not avened

4.

COMPLIANCE

5. STAY OF

PERIOD TO FILE

RESPONSIVE PLEADING

Effects of Motion

1.

lf the motion is granted,"in whole or in part,

the movant can wait until the bill of


particulars is served on him by the
opposing party and then he will have the
balance of the reglementary period within
such

$ln Selc

ollege of Lcb

2011 CENTRALIZED BAR OPERATIONS


SECTION 12. PROOF OF FILING

Filing is proved by its existence in the record


of the case.

Note:

This Rule is not arranged per section

but per topic.

1. lf filed personally:

SECTION 1. COVERAGE

SECTION

2,

lf it is not in the record, and

FILING AND

Proved by the written


or stamped acknowledgment of its filing by
the clerk of court on a copy of the same; or

SERVICE,

DEFINED

2.
to a

party who is duly


is a nullity, unless
service thereof on the party himself was
Notice given

represented by counsel

by registered mail: Proved by the


registry receipt AND the affidavit of the
person who did the mailing with a tull
lf .filed

statement of:

a.

ordered by the court or the technical defect


was waived.

b.
c.

Where party is represented by more than one


counsel of record, service of notice on any of

4.

days if undelivered.

PAPERS REQUIRED TO BE

FILED AND SERVED: (pAMNOJ-DORS)

1. Pleading subsequent
2. Appearance;
3. Written 4qotion;
4. Sotice;
5. Order;
6. judgment;
7. pemand;
8. Qffer of Judgment;
9. Resolution; or

to the complaint;
SECTION 5. i'IODES OF SERVICE

Personal Service (Section 6)

a.
b.

Filing is an act of presenting the pleading or

other paper to the clerk of court"

by

c.

Delivering personally a copy to the


party, who is not represented by a

counsel, or to his counsel; or


Leaving a copy in counsel's office with
his clerk or with person having
charge thereof; or
Leaving the copy between 8 a.m. and
p.m. at the party's or counsel's

residence, if known, with a person of

SECTION 3. MANNER OF FILING

Personal service

Service is the act of providing a party with a


copy of the pleading or paper concemed.

10. Similar papers.

1.

a sealed
envelope addressed to the court;
With postage fully paid; and
With instructions to the postmaster to
mail in the post office in

retum the mail to the sender after 10

the latter is sufficient.

SECTION

The date and place of depositing the

discretion then

presenting the

is found

original copies thereof, plainly indicated as


such, to the clerk of court; or

2.

Registered mail.

Filing

by mail

should

be through

the

REGISTRY SERVTCE which is made by


deposit of the pleading in the post office, and
not through other means of transmission.

lf a private carrier is availed of by the


party, the date of actual receipt by the
court of such pleading and not the date of

of court

delivery to the private carrier, is deemed to


be the date of the fiting of that pteading

(Benguet Electric Cooperative,

lnc.

ys.

NLRC, G.R. No. g9AT0 May 18, 1992).

39

REMEDIALLAW
CIVIL PROCEDURE

10.

SECTK)IiI
SERVICE

1.

COMPLETENESS OF

must be accompanied by a written explanation


why the seruice or filing was not done
personally.

PerconalService:

a. By handling a copy to defendant; or


b. Tendering him a copy if he refuses.

2.

Complete upon actualdelivery,

Service by Ordinary Mail:

Complete upon expiration of 10


days after mailing, unless the court
provides otherwise.

3.

Ssrvice by Registercd Mail:


. Complete upon actual receipt by the
addressee; or after 5 days from the
date he received the first notice of

the

postmaster.

SECTION 14. NOTICE OF LIS PENDENS

Lis Pendens is a notice of a pendency of the


action between the parties involving title to or
right of possession over real property.

Requisites:

1. Action

2.
3.
4.

Proof of Perconal Service


1 , Written admission of the party served; or
the date, place and manner of service.

Secflon 7, Rule 13.

Proof of service by registered mail:


1. Affidavit of mailer showing compliance of
Secfibn 7, Rule i3; and

2.

R:gistry receipt issued by the maiting

ofiice.

SECTION

9.

SERVICE OF JUDGMENT,
FINAL ORDERS, OR I{ESOLUTIONS

1. By personal service;
2. By registered mail; or
3. By publication, if party is summoned

Notice shall contain the name of the


of the action or
defense and a description of the property
parties and the object

affected thereby; and

Action

in rem (AFP Mutual Benefit

This serves as a warning to all persons

that

particular real property

is

in

litigation, and that one who acquires an


interest over said property does so at his
own risk, or that he gambles on the result
of the litigation over said property (Lee Tek
Sheng vs. CA, G.R. No. 115402, July 15,

2. Official return of the server; or


3. Affidavit of the party serving, containing
Proof of Service by Ordinary Mait: Affidavit
of the person mailing showing compliance of

or the right of

Association, lnc. vs. CA, G.R. No.l04769,


March 3,2000).

Note: Whichever date is earlier.


SECTION 13. PROOF OF SERVICE

affects the title

possession ofthe real property;


Affirmative relief is claimed;

1eeg).

The defendant may also record a notice of


lis pendens when he claims an affirmative
relief in his answer.

Note: Section 76 of P.D. /529 provides that


no action to recover possession of real estate,
or to quiet title thereto, or
remove clouds
upon the title thereof, or for partition, or other
proceedings of any kind in court directly

affecting the title to land or the use or


occupation thereof or the buildings thereon,
and no judgment, and no proceeding to vacate

by
publication and has failed to appear in the
action.

Note: No substituted service.

SECTION 11. PRIORITIES


SERVICE AND FILING

Personal service and

IN MODES OF

filing is the

general

rule, and resort to other modes of servi-ce and

filing is the exception.

Except papers emanating from the court, a


resort to modes other than by personal service
40

al

an

filing
notice

$sll ptls

@otlege of

{.elr

2O11 CENTRALIZED BAR OPERATIONS


cancellation may be authorized ONLY upon

order of court, after proper showing that:


1. The notice is for the purpose of molesting
the adverse party; or
lt is not necessary to protect the rights of
the party who caused it to be recorded.

2.

But where the defendant was declared in


default on the original complaint and the
plaintiff subsequently filed an amended
complaint, new summons must be served

on the amended
deemed withdrawn upon such
on the

defendant

complaint, as the original complaint was


amendment (Atkins vs. Domingo, G.R. No.
L-19565, March 24, 1923).

of

the person
the
defendant in a civil case is acquired either

Jurisdiction over

by his VOLUNTARY

SERVICE

OF SUMMONS upon

him

Summons is the writ by which the defendant


is notified of the action brought against him.

Purpose of Summons
A. Actions in Personam:
1. To acquire jurisdiction over the person

B.

is joined, summons must be served upon him.

APPEARANCE or

(Minucher vs. CA G.R. IVo.142963, Feb.


11,2003).

2.

General Rule: When an additional defendant

of the defendant in a civil case; and

To give notice to the defendant that an


action has been commenced against
him (Rtghf to due process).

Exceptions:

1.

2.

3.

a deceased
party defendant substitutes the deceased;
Where upon the death of the original
defendant his infant heirs are made
parties; and
ln cases of substitution of the deceased
under Sec. 16 of Rule 3.
When the administrator of

Note: ln these instances, the service

SECTION 1. CLERK TO ISSUE SUMMONS


Summons to be issued:
Upon the filing of the complaint; and
Payment of the requisite legal fees.

Actions in Rem and Quasi in Rem:

1.
2.

constitutional requirement of due process.

SECTION 2. CONTENTS

Not

to

acquire jurisdiction over the


defendant but mainly to satisfy the

Jurisdiction over

the defendant is

not
required and the court acquires jurisdiction
over an action as long as it acquires

jurisdiction over the res (Riano, 2007. P.


232).

Effect of Non-Service
Unless the defendant voluntarily submits to the
jurisdiction of the court, NON-SERVICE or
IRREGULAR SERVICE of summons renders
null and void all subsequent proceedings and

issuances in the action from the order of


default up to and including the judgment by
default and the order of execution.

of the

ORDER OF SUBSTITUTION is sufficient.

SECTION 3, BY WHOi'I SERVED


Summons may be served by:
1. Sheriff;
Sheriffls deputy; or
Other proper court officers; or

2.
3.
4.

For justifiable reasons, by any suitable

$.hffiffi#w e*ew

The non-service or invalidity of service of


summons may be a ground for dismissal, for

lack of jurisdiction over the person of the


defending party.

Note: Where the defendant has

the

of
already
original

been served with summons on the


complaint, no further summons is required on
the amended complaint if it does not introduce
new causes of action (Ong Peng vs. Cusfodio,
G.R. No. 14911, March 25, 1961).

servrce,

(Sec.6)
summons to

4L

REMEDIAL LAW
CIVIL PROCEDURE

Z
8.

Sbndering itto

$tcfituted

1.

Service

him.

(S*tion

T)

By leaving copies of the summons at

the defendant's residence with some


person of suitable age and discretion
residing therein; or

2.

By leaving the copies at defendant,s


office or regular place of business with
some competent person in charge
thereof.

For substituted service of summons to be


vali4 it is necessary to establish the following;
1. The impossibiliiy of the personal serviojof
summons within a reasonable time;
The efforts exerted to locate the person to
be served; and
Service upon a person of sufficient age

2.
3.

and discretion residing in the same plate


as defendant OR some competent person
in charge of his office or regular piace of

any action where the defendant is designated


as unknown owner, or the like, or whenever
his whereabouts are unknown and cannot be
ascertained by diligent inquiry. Thus, it now
applies to any action, whether in personam, in
rem or quasi-in rem.

. lf

property

17,1998I

Note: Summons is validly served if it is left


with some person of suitable age and
discretion then residing in the defendant's
residence, even if defendant was abroad at
that time. The fact that the defendant did not

actually receive the summons did not


invalidate the service of such summons
(Montalban ys. Maximo, G.R No. 22997,

business.

March 15,1968).

ln substituted service, the sheriffs return


must show that an effort or attempt was
exerted to personally serve the summons
on the defendant and that the same had
failed (Spouses Venturanza vs. CA, G.R.

Service of Summons on Different Entities


Upon any or all the defendants
being sued under common
name; or person in charge of the
office.
Minors and
lncompetents

Publication (Section 14)

(Section l0)

Requisites:

1. Defundant's identity or

where_

abouts are unknown and cannot be

^
z.

ascertiained by diligent inquiry; and


there must be leave of court.

pumnno-ns by way of pubtication may with


leave of court be availed of where a defendant
involved in any action (in rem, quasi in

an! in

personam)

is

designaied

im

as an

unknown owner or whenever his whereabouts

are unknown and cannot be ascertained. The


summons shallbe effected through publication
in a newspaper of general circrjtation.ano ln
such places and for such time as the court
sets.

ln

Sanfos

v,

?NAC

G.R. No. 17lg4g,

September 25, 20OS), the Supreme eourt held


that.the in rem/in personam distinction was
srgnrficant under the old rule because it was
silent as to the kind of action to which the rule
was applicable. Because of this silence, the
court limited the apptication of the old rule to in
rem actions only. This has been changed. The
present rule expressly states that it applied
to
42

attached and later the

(and voluntarily
submits to the jurisdiction of the court), the
case becomes mainly a suit rn personam
(Villareal vs. CA, G.R. No. 107314, Sept.

No.77760, Dec. 11, 1987).

C.

is

defendant appears

lN CASE OF MINORS: By
serving upon the minor,
regardless of age, AND upon his
legal guardian, or also upon
either of his parents.
IN CASE OF INCOMPETENTS;
By serving on him personally
AND upon his legal guardian,
but not upon his parents, unless
they are his legal guardians.
IN ANY EVENT, if thc

$ux Fell

@otlege of

1[sb

2011 CENTRALIZED BAR OPERATIONS


Foreign
private

Serve on the resident agent; or if


,none; on the government official
designated by law; or on any
officer or agent of the
corporation within the

juridical entity
(Section 12)

Public
corporations

the

defendant
from any
interest in
any property
within the

IN CASE DEFENDANT IS THE


REPUBLIC OF THE
PHILIPPINES - By serving upon
the Solicitor General
IN CASE OF A PROVINCE,
CITY OR MUNICIPALITY, OR
LIKE PUBLIC CORPOMTIONS
- by serving on its executive
head or on such oiher ofiicer or
officers as the law or the court
may direct.

(Section 13)

Phil;or

or

. Property

of

defendant
has been

gttached in
the Phil.

SECTION 14. SERVICE UPON DEFENDANT

under
service

15.

EXTRATERRITORIAL

SECTION 16. RESIDENTS TEMPORARILY


OUT OF THE PHILIPPINES

Resident
temporarily out
of the
Phitippines
t/Vith leave of

(Section 14)

Any action (rn


rem, in

personam or
quasi in rem)

ln rem or quasi
in rem. ll

either:{AREAI
r Affects the

personal
status of
plaintiff;
Relates to or
the subject
of which is

Not a resident

and is not
found in the
Philippines

(Sectian 15)

manner the
court deem
sufficient.

extraterritorial

ARE UNKNOWN

Resident but
identity or
whereabouts
unknown

c. Any other

Substituted
service or with
leave of court,
personal
servlce out of
the Phil. as

WHOSE IDENTITY OR WHEREABOUTS

SECTION
SERVICE

by
registered
mail to the
last known
address of
defendant;

property
within the
Philippines
in which
defendant
has a lien or
interest;
Demands a
relief which

consists
wholly or in
part in
gxcluding

Any action

(lt?

rem, in
personam or
quasi- in rem)

(Section 16)

Note: ln all
these cases, it
should be
noted that,
defendant
must be a
resident of the
Philippines.
Otherwise, an
adion in
personam

court, BY

cannot be

PUBLICATION

broughf

ina

because

newspaper of
general
circulation.

jurisdiction
over his
person is
essential to
make a
binding
decision

Service:
a. lA/ith leave

of c:ourt

serve
outside the
Phil. by
personal

tH ffiWWe

servi@; or
b.

Wth leave
of court
serve by
publication

ina
newspaper
of general
circulation,
in which
case copy
of the

summons
and order of
court must
also be sent

EBY
or

ness

or

affidavit a
attached;

43

REMEDIAL LAW
CIVIL PROCEDURE

2.

Affidavit showing the deposit of a copy of


the summons and order for publication in
the post office. (Henera vol.l p. 722)

SECTION 20. VOLUNTARY APPEARANCE

Any form of appearance in court, by

SECTION 3. CONTENTS

Contents of the Motion:

1. The relief sought to be obtained;


2. The ground upon which it is based; and
3. lf required by the Rules or necessary to
prove facts alleged therein, shall

the
defendant, by his agent authorized to.do so, or

by attomey, is

equivalent

to

service of

summons EXCEPT where such appearance is


precisely to object to the jurisdiction of the
court over the person of the defendant.
lnclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over
the person of the defendant shall NOT be
deemed a voluntary appearance.

SEGTION

other papers.

Requisites of a Motion: (Not made in open


courl or in the course of a hearing or trial):

1. lt must be in WRITING;
2. HEARING OF MOTION set bY the
applicant;
3. NOTICE OF HEARING shall be addressed

to all parties concemed. Date of hearing


must not be later than 10 days from the

4.

1, MOTION, DEFINED.

filing of the motion (Sec. 5);

Motion and notice of hearing must be


served at least 3 DAYS BEFORE THE

DATE

Motion is an application for relief other than by

OF

HEARING (THREE DAY

NOTICE RULE); and


PROOF OF SERVICE (Sec.6).

a pleading. A motion is not a pleading.

5.

Kinds of Motions

Exceptions to the Three Day Notice Rule:

1.

Motion EX PARTE is made without the


presence or a notification to the other
party because the question generally

presented is not debatable (Le. Motion for

2.

extension of time to file pleadings).


Motion OF COURSE is where the movant
is entitled to the relief or remedy sought as
a matter of discretion on the part of the
court.

3.

LITIGATED Motion is the one made with


notice to the adverse party to give an
opportunity to oppose (i.e. Motion to

4.

SPECIAL Motion is a motion addressed

dlsmLss).

to ihe discretion of the court.

General Rule:
judgment.

motion cannot pray for

Exceptions:

1.

2.
3.

Motion for judgment on the pleadings;


Motion for summary judgment; and

Motion

for judgment on demurrer to

evidence.

sEcTroN

2.

MOTION MUST

BE

IN

WRITING

General Rule: Motions musl be in writing.

Exceptions: Those made in OPEN COTJRT or


in the COURSE OF HEARTNG orTR|AL.

44

be

accompanied by supporting affidavits and

1. Ex-partemotions;
2. Urgent motions;
3. Motions agreed upon by the parties to be
,

4.

heard on shorter notice or jointly submitted


by the parties; and
Motions for summary judgment which
must be served at least 10 days before its
hearing.

Note: Any motion

that does not comply with


Secflons 4, 5 and 6 of this Rule (Requirements
4 and 5) is a mere SCRAP bf PaPeR.

r lt

does not interrupt the reglementary


period for the filing of the requisite
pleading.

5un Fe[e @otlegt of I.sb


2O11 CENTRALIZED BAR OPERATIONS
SEGTION

9.

Types of Dismissal of Action

MOTION FOR LEAVE

1.

SECTION 10. FORM

2.

A Motion to Dismiss is NOT a

responsive

pleading. lt is not a pleading at all.

3.

It is subject to the omnibus motion rule since it

Motion

to dismiss before answer

under

Rule 16;
Motion to dismiss underRule 17;
Upon notice by plaintiff;
Upon motion by plaintiff; or
Due to fault of plaintiff,

r
.
.

Motion

to dismiss called a demurrer to

evidence after plaintiff has completed the


presentation of his evidence under Rule
33; and
Dismissal of an appeal.

is a motion that attacks a pleading. Hence, it


must raise all objections available at the time

4.

of the filing thereof.

sEcTroN 1. GROUNDS (DILL-RPF-CUN)


1. No jurisdiction over the person of the

the following grounds are NOT


DEEMED WAIVED:
Lack of jurisdiction over the subject matter;
However,

1.
2. Litis pendentia;
3. Res judicata; and
4. Prescription (Sec.1 Rule 9).

3.

General Rule: A court may nol motu proprio


dismiss a case unless a motion to that effect is
filed by a party thereto.

2.
3.

defending party;
No jurisdiction over the gubject matter of
the claim;

lmproper venue;

4. No legal capacity to sue;


5. litis pendentia;
6. Res judicata;
7.
8.
9.

lrescription;

lailure to state a cause of action;


Qlaim or demand has been paid, waived,
abandoned, or otherwise extinguished;

Exceptions:

1.

2"

Those cases where the court may dismiss


a case motu proprio (Sec. 1, Rule 9);
Sec. 3, Rule 17 (Failure to prosecute)', and

Rule on Summary Procedure (Section

1991, Revised Rule

on

10. Claim is gnenforceable under the Statute


of Frauds; and
11.

lon-compliance

with

condition

precedent for filing claim.

4,

Summary

Procedure).

The language of the rule, particularly on


the relation of the words "abandoned" and

"otherwise extinguished" to the phrase


"claim or demand deemed set forth in the
plaintiffs pleading " is broad enough to
include within its ambit the defense of bar

by laches (Pineda v. Heirs of

Eliseo

Guevarra, G.R. No. 168557, February

19,

2007).
May be filed by any
defending party against

whom a claim is
asserted in the action.

May be {iled only by


the defendant against
the complaint of the
plaintiff.

Should be filed withiir


the time for but prior to
the filing of the answer
of the defending party
to the pleading
asserting the claim
against him.

May be filed only after


the plaintiff has
completed the
presentation of his
evidence.

lf denied, defendant
must file an answer, or
else he may be
declared in default.
lf granted, plaintiff may
appeal or ifsubsequent
case is not barred, he
may re-file the case.

lf denied, defendant
may present
evidence.
lf granted, plaintiff
appeals and the Order
of the dismissal is
reversed, the
defendant loses his
right to present
evidence.

the affiggf@W#dF# in

parties

it

may

be

which party

45

REMEDIAL LAW
CIVIL PROCEDURE

lt

Note: is applicable between the same


parties only when the judgment to be rendered
in the action first instituted will be such that
regardless of which parg is successRrt, it wiii
amount to res judicata against the second
action (HSBC vs. Aldecoa & Co., G.R. No. L8437, March 23,1915).

A motion to dismiss may be filed in either


suit, not necessarily in the one instituted
first.

Order granting motion


to dismiss is a final
order (without
prejudice).
Order granting motion
to dismiss (with
Preludice).
Order denying the
motion to dismiss is
interlocutory.

Requisites of Res Judieata

1. Previous final judgment or order;


2. Jurisdiction over the subject matter and

3.
4.

the parties by the court rendering it;


Judgment upon the merits; and

There must be identity

subject matter, and

action between
actions.

of

parties, of

17.

Prescription

motion

to

dismiss on the ground of

prescription will be given due course only if the


complaint shows on its face that the action has
already prescribed.

It is concerned with the


effect of delay.
It is a matter of time.

Prohibition may lie


under Rule 65.

second

Note: There could be res judicata without a


trial, such as in a judgment on the pleadings
(Rule 34);a summary judgment (Rute 3S); or
an order of dismissal under Secfion 3 of Rule

It is a mafter of

Non-Compliance

in the complaint.

Failure to State a Cause of Action and Not


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

46

Gondition

Non-compliance with P.D. 1548 (Katarungang


Pambarangay Law) may result in dismissal of
the case on the ground of non-compliance with
a condition precedent.
SECTION

2.

HEARING OF MOTION

SECTION

3.

RESOLUTION OF MOTION

The court may:


Dismiss the action;
Deny the motion; or
Order the amendment of the pleading

1.
2.
3.

Note: ln

is

resolution.

complaint states no cause of action, such fact


can be determined only from the facts alleged

with

Precedent

court

Gomplaint States No Cause of Action


When the ground for dismissat is that the

File answer and


proceed with the trial, if
decision is adverse,
appeal therefrom and
raise as error the denial
of the motion to dismiss.
lf there is grave abuse
of discretion.amounting
to lack or excess of

jurisdiction, Certiorari or

of cause of

the first and

Refile the complaint.

resolving motion to dismiss, the


required to give reasons for its

5m Felu ollege

of

i[,ab

2011 CENTRALIZED BAR OPERATIONS


Exception: The action cannot be re-filed if it

was dismissed on any of these

grounds:

EXGEPT:

Statute of

Frauds

3. Res judicata; and


4. !,xtinguishment of the claim or demand;
. ln these instances, the remedy of the plaintiff
is APPEAL.

SECTION

5.

confi rming the dismissal.

Such dismissal is WITHOUT PREJUDICE,

(PURE)

1. flrescription;
2. lnenforceability under the

The rule requires a COURT ORDER

1. Where the notice of dismissal

so provides;

or

2. Where the plaintiff has


dismissed the same case

competent jurisdiction

previously

in a court of

Owo

Dismissal

Rule).

o
PLEADING GROUNDS AS

AFFIRMATIVE DEFENSES

lf no motion to dismiss had been filed, any of


the grounds for dismissal provided for in Rule
16, INCLUDING IMPROPER VENUE, may be
pleaded as affirmative defenses in the answer
and a preliminary hearing may be had thereon

lf the plaintiff files a notice of dismissal


providing therein a reason that prevents
the refilling of the complaint, the dismissal
must be deemed one with prejudice. This
happens when the notice provides that the
plaintiff recognizes the fact of prescription
or extinguishment of the obligation of the
defendant or for reasons stated in Sec. 5
of Rule 16 (Riano, 2007, p. 225).

in the discretion of the court.

SECTION 2. DISMISSAL UPON MOTION OF

Note: lf the defendant

would want to file a


counterclaim, he should NOT file a motion to
dismiss. lnstead,.he should allege the,grounds
of a motion to dismiss as affirmative defenses
in his answer with a counterclaim. A
preliminary hearing may be had thereon, and
in the event the complaint is dismissed, the
defendant can PROSECUTE his counterclaim.

The

ld

of

paragraph
Secfion
clearly
provides that the dismissal of the complaint is
without prejudice to the prosecution of the
counterclaim.

PLAINTIFF

of the
complaint is subject to the DISCRETION of the
court and upon such terms and conditions as
may be just.
Under this section, the dismissal

lf a counterclaim has been pleaded by the


defendant PRIOR TO THE SERVICE upon
him of the plaintiff's motion for dismissal, the
dismissal shall

be

LIMITED

TO THE

COMPLAINT.

Such dismissal shall be without prejudice to


the right of the defendant to either:

SECTION 1. DISMISSAL UPON NOTICE BY


PLAINTIFF

Dismissal

is effected not by motion but

1. Prosecute his counterclaim in a separate


action;OR
2. To have the same resolved in the same

by

mere NOTICE of dismissal which is a matter of


right BEFORE the SERVICE of:
1. The answer; or
A motion for summary judgment.

2.

Note: The dismissal as a matter of right


ceases when an answer or a motion for
summary judgment is SERVED on the plaintiff

and NOT when the answer or the motion is


FILED with the court. Thus, if a notice of
dismissal is filed by the plaintiff even after an
answer has been filed in courf but before the
responsive pleading has been served on the
plaintiff, the notice of dismissat is STILL A
MATTER OF RIGHT (Riano,2007, p.224).

to

The

ry in the

47

REMEDIAL LAW
CIVIL PROCEDURE

Dismissal is at the
instance ofthe
plaintiff.

SECTION 4. DISMISSAL OF
COUNTERCLAIM, CROSS.GLAIM, OF
THIRD.PARTY COMPLAINT

Dismissal is not
procured by plaintiff
though justified by
causes imputable to

dismissal or discontinuance of an action


operates to annul orders, rulings or judgments

him.

previously made in the case, as well as all


proceedings had in connection therewith and
renders all pleadings ineffective (Servicewide
Specia/rs[ lne. vs. CA, G.R. No. 110597, May
8,1996).

Dismissal is a matter
of procedure, without
prejudice unless
otherwise stated in the
order of the court or on
plaintiffs motion to
dismiss his own
complaint"

Dismissal is a matter
of evidence, an
adjudication on the
merits.

Dismissal is without
prejudice to the right of
the defendant to
prosecute his
counterclaim in a
separate action unless
Min 15 days from
notice of the motion he
manifests his intention
to have his
counterclaim resoived
in the same action.

Dismissal is without
prejudice to the right of
the defendant to
prosecute his
counterclaim on the
same or separate
action.

Prc-Trial is a mandatory ennference and


personal confrontation before the judge
between the parties and their respective
counsel.
SECTION 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.

SECTION 3. DISMISSAL DUE TO FAULT OF

PLAINTIFF

Causes for Dismissal


1. Plaintiff fails to appear for no justifiabte
cause on the date of the presentation of

2.
3.
.

his evidence in chief on the complaint;

Plaintiff fails to prosecute his action for an


unreasonable length of time (NoIIe
Prasequi);and
Plaintiff fails to comply with these Rutes or
any order of the court.

The plaintiffs failure to appear at the trial


. after he has presented his evidence and
rested his case DOES NOT WARRANT
the dismissal of the case on the ground of
failure to prosecute. lt is merely a waiver
of his right to cross-examine and to object
to the admissibility of evidence (Jatover vs.

Ytoriaga, G.R.

No. L-359A9, Oct.

28,

1977).

Complaint may be dismissed:

.
2.
1

Upon motion of the defendant; or


Upon the court'F own initiative.

Dismissal shall have

the effect of

an

ADJUDICATION UPON THE MERTTS (RES


JUDICATA), unress otherwise dectared by the

couft or

if the court has not yet acquired

jurisdiction over the person of the defendant


(Henera, voL 1 p.798).
48

Specifically, the motion is to be filed within


5 days after the last pleading joining the
issue has been served and filed

(Administrative Circular No. 3-99 January


15, 1999). lf the plaintiff fails to file said
motion within the given period, the branch
clerk of court shall issue a NOTICE OF
PRE- TRIAL (A.M. No. 03-109-SC, July
1s,2004).

Note: The "LAST PLEADING' need not be


literally construed as the qctual filing of the last
pleading. For purposes of the pre-trial, the
expiration of the period for filing the last
pleading is sufficient (Sarmiento vs. Juan,

9m

ffie[u Gollege of Lsb

2OT 1 CENTRALIZED BAR OPERATIONS

Note: The

of

prooess
securing
admissions, whether of facts or evidence,
is essentially voluntary. When the parties

are unable to arrive at a stipulation of


agreed facts, the court must close the pretrial and proceed with the trial of the case

(Filoil Marketing Corp. vs. Dy Pac & Co.,


G.R. No.29636, Sepf. 30, 1982).

5.
6.
7.

The limitation of the number of witnesses;


The advisability of a preliminary reference
of issues to a commissioner;
The propriety of rendering judgment on the

pleadings,

or summary judgment, or of
the action should a valid

dismissing

SECTION

5.

EFFECT OF FAILURE TO

APPEAR
Effect of Non-Appearance of Plaintiff:
Cause for the dismissal of the action. This
dismissal shall be with prejudice except when
the court orders othenrrrise.

Effect of Non-appeanance of Defendant:


Cause the plaintiff to present evidence ex
parte and for the court to render judgment on
the basis thereof.
Note: The non-appearance of the defendant in

the pre{rial is not a ground to declare him in


default.

ground therefor be found to exist;

8. The advisability or necessity of


suspending the proceedings; and
9. Such ofher mafters as may aid in the
prompt disposition of the case.

SECTION 6. PRE.TRIAL BRIEF

Contents of.the Pre-Trial Brief


1. A statement of their willingness to enter
into amicable settlement or alternative

SECTION 3. NOTICE OF PRE.TRIAL

The notice of pre-trial shall be served

on

counsel, or on the party who has no counsel.

The counsel served with such notice is


charged with the duty of notifying the party
represented by him.
SECTION 4. APPEARANCE OF PARTIES

BOTH the parties and their counsel must


appear at the pre-trial.

When non-appearance of a party may be


EXGUSED:
lf a valid cause is shown therefor; AND

1.
2. lf a representative shall appear in his
behalf fully authorized in writing to:
a. Enter into an amicable setflement;
b. Submit to alternative modes of dispute
resolution; and
c. Enter into stipulations or admissions of

modes of dispute resolution, indicating the


desired terms thereofi
summary
admitted facts and
proposed stipulations of facts;
The issues to be tried or resolved;
The documents or exhibits to be presented
stating the purpose thereof;
A manifestation of their having availed or

2. A
3.
4.
5.

of

to avail themselves of
discovery procedures or referal to

their intention

6.
'

commissioners; and

The number and names of the witnesses,

and the substance of their

respective

testimonies

Note: Failure to file pre-trial brief has the


same effect as failure to appear at the pre-trial.

Principles lnvolved

in

Agreements

facts and of documents.

Written authority must be in the form of


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

Note: The mere presentation of such written


authority is not sufficient, but must be

complemented by a showing of valid cause for


the non-appearance of the party himself.

49

REMEDIAL LAW
CIVIT PROCEDURE

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


Legal;
4. Number of witnesses; and
5. The dates of trial.
r The proceedings in the pre-trial shall be
recorded.

The contents of the PRE-TRIAL order shalt


control the subsequent course of the action,
UNLESS:
1. Modified before trial to prevent manifest
injustice (Rule 18, sec.7);
lssues impliedly included therein or may
be inferable therefrom by necessary
implication (Vetasco vs. Apostol, G.R. No.
44588, May g, 1989); and
Amendment to conform to evidence (Rule
l4 sec. O.

2.
3.

party

is

deemed

to

lntervention is a legal proceeding by which a

third person is permitted by the court to


become a party by intervening in a pending
action after meeting the conditions and
requirement set by the Rules of Court.
SECTION 1. WHO MAY INTERVENE

1.

2.
3.
4.

One who has a legal interest in the matter


in litigation;
One who has
legal interest in the
success of either of the parties;
One who has an interest against both
parties; or
One who is so situated as to be adversely
affected
distribution
other

by a

disposition

have waived the

delimitations in a pre.trial order if he failed to


object to the introduction of evidence on an
issue outside of the pre-trial order, as well as
in cross-examining the witness in regard to
said evidence.

or

of property in the custody of

the court or of an officer thereof.

Note: Intervention is never an independent


proceeding but is ancillary and supplemental

to an existing litigation.

Hence, the final


disrnissal of the principal action results in the
denial of a pending motion for intervention.

Exception: When intervention has

been

allowed and the complaint in intervention has


already been filed before plaintiffs action had

been expressly dismissed (Metro Bank vs.


RTC-Manila, Br. 39, G.R. No. 89909, Sept. 21,

l- Setttement
"J"_J

1990).

I Agreerens
by
I made
I parties;
I Amendments to
I pbaflins;

Schedule

of motion to intervene does not


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

constitute

oftrial

(Asuncion vs. Pinedq G.R. No.L-47924,

I
I

July 31, 1989).

I
I

Factorc to be Considered by the Gourt


will unduly

I
I

delay
I

i
direct
and

lf evidence is
insufiicient to prove
plaintitrs cause of
action or defendant's
counterclaim, lhe
court rules in favoi of
either one or
dismisses the case.

50

r legal
in the
which
pla
1989):

5sn Felu

@ollege of

Lab

2011 CENTRALIZED BAR OPERATIONS

Proper in any of the


four situations
mentioned in this Rule.

The action is against


either or both the
original parties to the

Remedies for the Denial of lntdrvention:


1. APPEAL;or
2. MANDAMUS, if there is grave abuse of

Presupposes that the


plaintiff has no interest
in the subject matter of
the action or has an
interest therein, which
in whole or in part, is
not disputed by the
other parties to the
action.

discretion.

. lf there is
intervention,

improper granting of
the remedy of the party is

certiorari.

SECTION 1. CALENDAR OF CASES

Defendants are being


sued precisely to
implead them.

Prefercnce shall be given to:

1.

Habeas corpus cases;

2. Election cases;
3. Specialcivilactions; and
4. Those so required by law.

SECTION 2. TIME TO INTERVENE

The motion to intervene must be filed at any


time BEFORE REND|T|ON OF JUDGMENT
by the trial court.

SEGTION 2. ASSIGNMENT OF GASES

Note:

Note: After rendition of judgment, a motion to


intervene is barred, even if lhe judgment itself

Assignment of cases is required to be

done exclusively by raffle.

recognizes the right of the movant.

The REMEDY of the movant is to file


separate action.

Exceptions:

1. With

respect to indispensable parties,


intervention may be allowed even on

2.

appeal (Falcasantos ys. Falcasanfos, G.R.


No. L-4627,. May 13, 1952).
When the intervenor is the Republic (Lim

vs. Pacquing, G.R No. 115044, Jan.

3.

27,

1995).

lntervention may be allowed after


judgment where necessary to protect
some interest which cannot otherurrise be
protected, and for the purpose of
preserving the intervenor,s right to appeal

An order to appear
and testify or to

An order to answer
complaint.

produce books and


documents.

Needs tender of
kilometrage,
attendance fee and
reasonable cost of

Does not need tender


of kilometrage and
other fees.

SECTION 1. SUBPOENA AND SUBPOENA

(Herrera vol.1 p. 847).

sEcTtoN

3.

PLEADINGS.IN-

INTERVENTION

1.

2.

Complaint-in-intervention

an
by
his

- lf

the
intervenor asserts a claim against either or
all of the original parties.
Answer-in-intervention - lf the intervenor

unites with the defendant in resisting a

with

claim against the latter.

SECTION 4. ANSWER TO

lll{ilTERVENTION

COMPLAINT.

Wthin 15 days from notice of the


adni&r the same.

order

Who

1. Court
51

REMEDIAL LAW
CIVIL PROCEDURE

2. Court of the place where the deposition is


to be taken;
3. fficer or body authorized by law to do so
in connection with investigations
conducted
, Any Justiceby said officer or body; oi
4.
of the SC or of the CA in any
case or investigation pending within thi

sEcTtoN 6. SERVTCE
Service of subpoena shall be made in the
same manner as personal or substifuted

service of summons.

1.

Philippines.

Subpoena to a Prisoner

It must be for a valid

purpose.

lf

prisoner

required to appear in court is sentenced to


death, reclusion perpetua or life imprisonment
and is confined in prison - must be authorized

by the SC.
SECTION 3. FORM AND CONTENTS

2.
.
3.

Shall state the name of the court and the

title of the action or investigation;

shall contain a reasonable description of

the books, documents or things demanded


which must appear to the court to be prima
facl'e relevant.

A. Subpoena Duces Tecum may


quashed upon: (Mpura)
flotion prompfly made;AND

SECTION 7. PERSONAL APPEARANGE IN


GOURT

General Rule:

Proofthat:

or

c. The person asking for

the

cost for the production

the

subpoena does not gdvance the

of

B. Subpoena Ad Testificandum mav be


quashed if the witness is not bbund
thereby.

EITHER CASE,

the subpoena may

and kilometrage allowed by the Rules

sEcTtoN
DEPOStTtOtTtS

5.

The court which issued the subpoena may


issue a WARRANT FOR THE ARREST
OF THE WITNESS and make him pay the
cost of such warrant and seizure, if the
court should determine
his
disobedience was willful AND without just
cause(Sec. 8).

SUBPOENA

2.

The refusal to obey a subpoena without

adequate ctuse shall

be

CONTEMPT of the court issuing


e).

deemed

it

(Sec.

SECTION 10. EXCEPTIONS

compelling of

his

be

quashed for failure to tender ine witnesi'fees

52

be tendered.

that

produced do not appear prima


facie to be relevant to'the issues;

ln

of

the subpoena is duces tecum, the


reasonable cost of producing the books,
documents, or things demanded shall also

be

lt is gnreasonable and oppressive;


3
b. The articles sought to be

articles desired.

to the place

4. lf

1.

SECTION 4. QUASHING A SUBPOENA

Tendering to him the fees for one day,s


attendance or kilometrage allowed by the
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
attendance; and

2. lt shall be directed to the person whose


attendance is required; and
3. ln the case of a subpoena duces teeum, it

1
2.

whom it is served;

preparation and travel

A subpoena:

1.

The original shall be exhibited and a copy


thereof be delivered to the person on

FOR

not to

9er Fels

Gollrgc of Lsb

2011 CENTRALIZED BAR OPERATIONS

without formal interrogation and

SECTION 1. HOW TO COMPUTE TIME

opportunity

Any extension of time to file the required

pleading should be counted from the

expiration of the period regardless of the


fact that the said due date is a Saturday,
Sunday, or legal hotiday (A.M. No. 0O-214-SC, as explained in Luz vs. National
Amnesty Commission, G.R. No. lSgTO2g,
Sept.24, 2004).
RULES OF DISCOVERY

Discovery is a device employed by a party to


obtain information about relevant matters on

the case from the adverse party in


preparation fortrjat (Riano, 2007, p.

the

31 0).

Purpose: To enable the parties to obtain the


fullest possible knowledge of the issues and
evidence long before the trial to prevent such

trialfrom being carried on in the dark.

Modes

of

Discovery under the Rules of

Court (D-DIAPP)

1. Depositions pending action (Rute 23);


2. Depositions before action or pending
, appeal (Rule 24);
3. lnterrogatories to parties (Rute 2S);
4. {dmission by adverse party (Rute 26);
5. lroduction or inspection of documents, or
things (Rule 27);and
6. f;hysical and mental examination of
persons (Rule 28).

Modes of Discovery are intended to be


CUMULATIVE, and not alternative nor

for

cross-examination.

Affidavits are NOT admissible in evidence


except in cases governed by the Rule on
Summary Procedure or in ordinary cases
subject to cross-examination.

SEct'IoN 2. EFFEcT oF INTERRUPTIoN

Depositions are different from affidavits


since the latter are ex pafte statements

Depositions are intended as a means to


compel disclosure of facts resting in the
knowledge of a party or other person, which
are relevant in a suiU proceeding.
Classifi cation of Depositions

1. Depositions on oral examination and


Depositions upon wrifte n i nte rrog atorie s;
2- Depositions de bene esse - Those taken

3.

for purposes of a pending action (Rule 23);


and
Depositions in perpetuam rei memoriam

to

perpetuate evidence for


purposes of an anticipated dction or
further proceedings in a case on appeal

Those taken
(Rute 24).

SECTION

1-

DEPOSITION PENDING

ACTION, WHEN MAY BE TAKEN

When Taken:
A. With Leave of Court

1. After jurisdiction

has been obtained

over any defendant or over the


property which is the subject of the
action but BEFORE an answer has
been filed.

Ratio: Leave of court

is

necessary

because the issues are not yet joined


and the disputed facts are not yet
clear-

confined

in

mutually exclusive.

Note: Discovery is NOT MANDATORy but


failure to avail carries sanctions in Rules 25
and 26.
out of
safe

of an

Deposition is a written testimony of a witness


given in the course of a judicial proceeding in
advance of the trial or hearing upon oral

or in

response to written
interrogatories and where an opportunity is

examination

ex
may
court
1, June

given for cross-examination.

53

REMEDIAL LAW
CIVIL PROCEDURE

5.

SECTION 2. SCOPE OF EXAMINATION

Scope of Examination in Depositions


1. Matter which is relevant to the subject of
the pending action;

2. Not privileged; and


3. Not restricted by a

protective order

(Secfibns 16 and 18).

Upon application and notice, that such


exceptional circumstances exist as to
make it desirable in the interest of justice.

Note: Gertiorari will not lie against an order


admitting or rejecting a deposition in evidence.
The remedy is an appeal ftom the final
judgment.

SEGTION 3. EXAIIIIINATION AND CROSS.


EXAilINATION

Ratio: Because it is merely an error of law not


grave abuse of discretion.

SECTION 4. USE OF DEPOSITIONS

SECTION 5. EFFECT OF SUBSTITUTION OF


PARTIES

Where the witness is available to testify and


the situation is not one of those excepted
under Secfibn 4, his deposition is inadmissible
in evidence and he should be made to testify.

SECTION 6. OBJECTIONS TO
ADMISSIBILITY

SECTION

7.

EFFECT

OF

TAKING

DEPOSITIONS
By any party for
contradicting or
impeaching the
testimony of deponent
as witness.

A party or any one


who at the time of the
deposition was an

By an adverseparty
for any purpose.

Exception: lf a party offers the deposition in


evidence, then he is deemed to have made
the deponent his witness (Sec.8).

OFFICER,
DIRECTOR, oT

MANAGINGAGENT

Exception to the exception: UNLESS the


deposition is that of an opposing party OR the
deposition is used to impeach or contradict the
deponent (Sec. 8).

of a public or private

corp., partnership, or
association which is a
party.

\Mtness, whether or
not a party.

By any party for any


purpose if the court
finds the 5 instances

SECTION 9. REBUTTING DEPOSITION

SECTION 10 AND 11. PERSONS BEFORE


wHoM DEPOSTIONS MAY BE TAKEN
Depositions can be used as evidence by a
("for any purpose") under the specific
conditions in Section 4.
party_

Five lnstances Where Deposition of

.any

Witness may be Used for any purpose (DR.

usE)

1. The witness is dead;


2. The witness -gesides more than 100
kilometers from

3.
.
4.

54

A party shall not be deemed to make a person


his own witness for any purpose by taking his
deposition because depositions are taken for
discovery and not for use as evidence.

the place of trial

or

hearing, or is out of the philippines. Unless


it appears that his absence was procured
!y the party offering the deposition;
The witness is gnable to teitify because of
age, sickness, infirmity, or imprisonment;
The party offering the deposition has been
unable to procure the attendance of the
witness by gubpoena; OR

Within the Philippines:

Sm Fela

Gollege of

llb

2011 CENTRALIZED BAR OPERATIONS


SECTION 12. GOMMISSION OR LETTERS
ROGATORY

SECTION {7. RECORD OF EXAMINATION;


OATH; OBJECTIONS

Gommission is an instrument issued by a

SECTION {8. i'OTION TO TERMINATE OR


LIMIT EXAMINATION

any other act by authority of such court or

May be Filed:

court of justice, or other competent tribunal, to


authorize a person to take depositions or do
tribunal.

Letterc Rogatory is an instrument sent in the


name and by the authority of a judge or court
to another, requesting the latter to cause to be
examined, upon interrogatories filed in a case
pending before the former, a witness who is
within the jurisdiction of the judge or court to

1. Any time during the taking of

.
2.
3.

the
deposition;
On motion or petition of any party or of the
deponent; and

Upon showing that the examination is


conducted in:
Bad faith;

a.
b.

whom such letters are addressed (Feia, 2001,

p.518).

deponent or party.

.
lssued to a non-judicial
foreign officer who will
directly take the
testimony.

lssued to the
appropriate judicial
officer of the foreign
country who will direct
somebody in said
foreign country to take
down testimony.

Applicable rules of
procedure are those of

Applicable rules of
procedure are those of
the foreign court
requested to act.

the requesting court.


Resorted to if
permission of the
foreign country is
given.

Resorted to if the
execution ofthe
commission is refused
in the foreign cluntry.

13.

INTEREST

When the constitutional privilege against


self-incrimination is invoked by deponent
or his counsel, the trial court may stop the

examination (lsabela Sugar Co. ys.


Macadaeg, G.R. No. L-5924, OcL 28,
1953).

Provides protection to

Provides such protection

the party or witness


before the taking of

during the taking of

Motion is filed with the


court in which the action

DISQUALIFICATION BY

NO deposition shall be taken before a person


who is:
1. A relative within the { degree of affinity or

Motion or petition is filed


in the court in which the
action is pending OR the
RTC of the place where
the deposition is being
taken.

SECTION 19. SUBMISSION TO WTNESS;


CHANGES;SlcNlNG

consanguinity;

.**ft

2. An employee or caunset of any of the


parties;
3. A relative within the same degree, or
employee of such counsel; and
4. Financially interested in the action.

gJS;!*t+t

OF

SECTION 14. STIPULATTONS REGARDING


TAKING OF DEPOSITONS

SECTION 15. DEPOSITION UPON ORAL

notice

EXAMINATION; NOTTGE; TIME AND PLACE

SECTION 16. ORDERS FOR THE


PROTECTION OF PARTIES AND

deposition.

deposition.

is pending.

Leave of court is not

SECTION

ln such manner as unreasonably to


annoy, embarass, or oppress the

of
and his
counsel

DEPONENTS

55

REMEDIAL LAW
CIVIL PROCEDURE
SEGTION 25. DEPOSITION UPON WRITTEN
INTERROGATORTES; SERVTCE OF NOTTCE
AND OF INTERROGATORIES

conclusive proo{ either of the existence of


any right or even of the facts to whicfr they
relate, as it can be controverted at the tial
the same manner as though no
perpetuation of testimony was ever had.

SECTION 26. OFFICERS TO TAKE AND


PREPARE RECORD

in

SECTION 27, NOTICE OF FILING AND


FURNISHING OF COPIES

SECTION 28. ORDERS FOR THE


PROTECTION OF PARTIES AND
DEPONENTS

SECTION

29. EFFECT OF ERROR

IRREGULARITIES IN DEPOSITIONS

1. As to

notice

objection

is

- Waived
prompfly

party giving the notice.

2. As to

SECTION

unless written

of

officer
Waived unless made before the taking of

the deposition begins or as soon thereJfter


as the disqualification becomes known.

3. As to

4.

6.

1,

DEPOSITION BEFORE

AGTION; PETITION
A petition may be filed by any person:

1. Who wants to

2.

perpetuate his own


testimony; or
Who wants to perpetuate the testimony of
another person.

competency and relevancy of


evidence - NOT waived by failurb to
make them before or during the taking of
the deposition unless the ground of tne
objection is one which might have been
obviated or removed if presented at that

For example, the petitioner has a cause of


action which has not yet accrued. In such a
case, inasmuch as he cannot bring the action

As to oral examination

perpetuate his testimony

time.

- Waived unless

reasonable objections thereto is made at

5.

However, in the absence of any objeciion to its


taking, and even if the deponent did not testify
at the hearing, the perpetuated testimony
constitutes prima facie proof of facts referred
to in the deposition.

AND

served upon the

disqualification

Depositions under this Rule do not prove

the existence of any right and the


testimony perpetuated is not in itself

the taking of the deposition.

As to fonn of written interogatories


Waived unless served in writing upon the
party propounding them within the time
allowed.

As to manner of prcparation

Waived
unless a motion to suppress the deposition

or

some part thereof

is

made

Note: This may be availed of ONLY in civil


cases and NOT in criminal cases.

until the cause of action arcrues, he may


or that of another
person (Feria, 2001, p. 534).
SECTION 2. CONTENTS OF PETITION

The petition shall be verified and shail be filed

in the place of residence of any

expected

adverse party. lt shall contain the matters set


forth in Sec. 2 of Rule 24.

wiEt

reasonable promptness after sucfr defect


is, or with due diligence might have been,

SECNON 3. NONCE AND SERVICE

ascertained.

deposition before action

and

deposition pending appeal are refened to


as perpetuation of testimony or peryetuam
rei memoriam because their objective is to
perpetuate the testinrony of a witness for

future use.
Depositions under this Rule are also taken
conditionally, to be used at the trial only in
case the deponent is not available.

55

of
notice

$en

Fell Golhgp sJTffi

2011 CENTRALIZED BAR OPERATIONS


SECTION 6. USE OF DEPOSITION

lf deposition is taken under this Rule, it may be

used

in any

SUBJECT

action invotving the SAME


MAfiER subsequentty brought.

SECTION

7.

DEPOSITIONS PENDING

APPEAL
Depositions are taken pending appeatwith the
view to their being used in the event of further

proceedings

in the COURT OF ORtGtN or

APPELLATE COURT.

For example,

party may perpetuate the

testimony of a witness which was objected by


the adverse party and ruled out by the court. lf
the appellate court should reverse the
decision/order of the lower court, it could admit
the deposition as ADDITIONAL EVIDENCE or

remand the case back to the lower court for


such ADMISSION in accordance with Secfrbns
4 and 5 of Rule 23 (Feria 2001,

p.

SECTION

1.

INTERROGATION TO

PARTIES; SERVICE THEREOF

A party may serve written interrogatories:

1. Without

Leave of Gourt - After answer


has been served, for the first set of

2.

interrogatories.

Wth Leave of Court


been served.

537).

Before answer has

Reason: At that time, the issues are not


yet joined and the disputed facts are not
yet clear.

Purpose of Written lnterrogatories: To elicit


facts from any adverse party (answers may
also be used as admissions of the adverse
party).

Written interrogatories and the answers


thereto must both be FTLED and SERVED.
Hence, the answers may constitute as
JUDICIAL ADMTSSTONS (Sec.
Rute

2.

SECTION
INTERROGATORIES

the person making them.

matters of proof which


may later be made a
part of the records as
evidence.

\Mth' intervention of the


officer authorized by
the court to take

A party may properly

Answers cannot be made by an agent or


attomey; answers not made by the parties
are nullities (Herrera vol2 p.44).

.
A party may properly
seek disclosure of

TO

The interrogatories shall be answered fully in


writing and shall be signed and sworn to by

12e).

ANSWER

A judgment by Cefautt may be rendered


against a party who fails to answer written
interrogatories.

seek disclosure only of


matters which define
the issues and become
a part of the pleadings.

No intervention.

Written interrogatories
are directed to the

57

REMEDIAL LAW
CIVIL PROCEDURE

for

necessary
intenogatories.

5.

SECTION

sets

of

SCOPE AND USE

OF

succeeding

3.

Under this rule, a matter of fact not related


to any documents may be presented to the
other party for admission or denial.

INTERROGATORIES

The SCOPE of interrogatories shall be the


matters mentioned in Sec. 2 Rule 23. The
answers may be USED for the same purpose
provided in Sec. 4 of the same Rule.

Since answers to interrogatories may be

for the

used
same purposes as
depositions, they may also be the basis of
a summary judgment under Rule 35.

SECTION

6.

EFFECT OF FAILURE TO

Proper when the


genuineress of an

Must be attached to the


complaint or copied

evidentiary document
is sought to be
admitted. lf not
denied under oath, its
genuineness is
deemed impliedly
admitted. Essentially
a mode of discovery.

therein. lts
genuineness and due
execution is deemed
impliedly admitted
unless specifically
denied under oath by
the adverse party.

SERVE WRITTEN INTERROGATORIES

party had been served wriften


interrogatories, he may not be compelled by
Unless

the adverse party:


1. To give testimony in open court; or
Give a deposition pending appeal.

2.

The only EXCEPTION is when the court


allows it. for GOOD CAUSE shown and to
prevent a failure of justice.

Note: The sanction adopted by the Rules is


not one of compulsion in the sense that the
party is being compelled to avail of the
discovery mechanics, but one of negation by
depriving him of evidentiary sources which
would otherwise have been accessible to him.

SECTION

2. IMPLIED ADM|SSION

Each of the matters of which an admission is


requested shall be deemed admitted UNLESS
the party to whom the request is direcled files

and serves upon the party requesting the


admission a sworn statement either denying
specifically the mafters of which an admission

is requested or setting forth the reasons why


he cannot either admit or deny those mafters.

The REMEDY of the party, in this case, is

to file a motion to be relieved of the


consequences of the imPlied
admission.

amendment of the
nnot set aside the legal

The

complaint per se

effects of the request for admission since


its materiality has not been affected by the
amendment.

sEciloN
SECTION

1.

REQUEST FOR ADMISSION

Purpose of wriften rcquest for admission:


To expedite trial and relieve the parties of the

3. EFFECT

Or iOmlSStOr.r

Use: An admission under this Section is for


the purpose of the PENDING ACTION ONLY

of proving facts which will not be


disputed on trial and the truth of which can be
ascertained by reasonable inquiry.
costs

When rcquest may be made: At any time


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

What request may include:

1. Admission of the

genuineness of any
material and relevant document described

2.

58

in and exhibited with the request;

Admission of the truth of any material and


relevant matter of fact set forth in the
request; or

action and

9m Fell

othge of Lelr

2011 CENTRALIZED BAR OPERATIONS


must be only those within lhe possession,

insane person, while the physical condition

of the party is

control, or custody of a party.

generally involved

in

PHYSICAL INJURIES cases.

Since the results of the examination are


intended to be made public, the same are

not covered by the physician-patient


privilege (Sec. 24b, Rule 130).
A means of compelling
production of evidence

SECTION 2. ORDER FOR EXAMINATION

The Rules is limited to


the parties to the
action.

It may be directed to a
person whether a party
or not.

Examination:

The order under this


Rule is issued only
upon motion with
notice to the adverse

It may be issued upon


an ex parte application.

SECTION

1. MOTION FOR

PRODUCTION

OR INSPECTION; ORDER

of documents affords more


for discovery than a subpoena
duces tecum. However, the rule is not
intended for use as a dragnet or any fishing
Production

opportunity
expedition.

1.

Should not be priviteged; and

Should constitute or contain evidence


material to any matter involved in the
action, and which are in his (the party
ordered) possession, custody, or control.

ln a petition for the production of papers

and documents, they must be sufficienfly


described and identified. Othenrvise, the

petition

nnot prosper.

or

deprive

1. A MOTION must be filed for the physical


and mental examination;

2. The motion must show GOOD CAUSE for


the examination;
3. NOTICE to the party to be examined and
to all other parties; and
4. The motion shall SPECIFY the time, place,
manner, conditions, and scope of the
examination and the person or persons by
whom it is made.

SEGTION 3. REPORT OF FINDINGS

report of the examining physician.

After such request and delivery, the party


causing the examination to be made shall be
entitled upon request to receive from the party

examined
previously

a like report of any examination,


or thereafter made, of the

the person

same

mental or physical condition.

sEcTroN 4. wAtvER

This mode of discovery does not authorize


the opposing party or the clerk or other
funclionaries of the court to distrain the

articles

to Obtain an Order for

lf requested by the party examined, the party


causing the examination to be made shall
deliver to him a copy of a detailed written

The DOCUMENTS to be produced:

2.

Requisites

or pnluleer

Where the party examined requests and


obtains a
e results of the

who

produced the same of their possession,

even temporarily (Tanda vs. Atdaya, L13423, Nov.23, 1959).

He
the
and
tn

SECTION 1. WHEN EXAMINATION MAY BE


ORDERED

same
of any
him or

This mode of discovery is available in an


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

The mental condition of a party is in


controversy in proceedings for
GUARDIANSHtp over an imbecile or
59

f,

REMEDIAT LAW
CIVIL PROCEDURE

Refusal to

Admit under
Rule 26 (Sec.4)

1.

Refusal to
answer any

question

The court, may, upon proper


application, compel a
refusing deponent to answer
(Sec.1).
a. If granted and refusal to
answer is without substantial
justification, court may rcquire
the refusing pafty to pay the
proponent the amount of the
re a son ab le expenses i nc u rred
in obtaining the order, including
attorney's fees.
b. lf denied and filed
without su b sta nti a I justification,
auft may require the proponent
to pay the refusing pafty the
amount of the reasonable
expenses incuned in obtaining
the order, including attomey's

Failure of Pafi
to affend or
serye answers

to written
interrogatories
(Sec.5)

after
being directed by the court
to do so may be considered
as contempt ofcourt (Sec.

Refusal to

answer
designated
questions or
refusal to
produce
documents or
to submit to
physical or

Dismiss the action or


proceeding or any part
thereof;
Enter a judgment by default
against disobedient party;
Order payment of
reasonable expenses
incurred by the other

and despite an order compelling him

to

3(c) will apply (Zepeda v. China Banking


Corpontion, G.R. rVo. 172175, October 9,
2006).

The court may make the


following orders:
1. Prohibit the disobedient
party to introduce evidence
of physical or mental
condition

Expenses and aftomey's fees are not to be


imposed upon the Republic of the Philippiries
under this rule.

disobedient party to support


or oppose claims or
defenses
3. Strike out pleadings or parts

Trial is the judicial process of investigating


and
starting

by the

thereof
4. Stay further: proceedings
5.

Rdgf,ftLffi#ffi,"

Dismiss the action or


proceeding or any part

thereof
6. Render a judgment by

default against disobedient


party
7.

Direct the anest of any


party or agent of a party
disobeying any of such
orders except an order to
submit to a physical or
mental examination

1.

2.

I
4.
5.

6.
7.

60

3.

Party;

answer, still refuses to obey the order, Section

Cite the disobedient deponent in


Contempt of court

mental

examination
(Sec.3/

2.

lf a party refuses to answer the whole written


interrogatories, Secflon 5 of Rule 29 applies.
Where a party refuses to answer a particular
question, in the set of written intenogatories

2. A refusal to answer

Refusal to be

The court, on motion and notice,


may:
1. Strike out all or any part of
any pleading of disobedient

4.

fees.

Swom (Sec.2J

The court, upon proper


application, issue an order
requiring the other party to pay
him reasonable expenses
incurred, including aftorney's
fees.

REMEDIAL

tAW

CIVIL PROCEDURE

Refusal to

Admit under

1.

Refusal to
ansuter any

question

The court, may, upon proper


application, compel a
refusing deponent to answer
(Sec.1).
a. lf granted and refusal to
answer is without substanilal
justifrcation, court may require
the refusing pafty to pay the
proponent the amount of the
rea son a b I e expenses i nc u rred
in obtaining the order, inctuding
attomey's fees.
b. lf denied and fited
without substa ntial j ustification,
aurt may require the proponent
to pay the rcfusing pafty the
amount of the reasonable
expenses incuned in obtaining
the order, including attomey,s
fees.

2.

A refusal to answer affer


being directed by the court
to do so may be considered
as contempt of court (Sec.

Refusal to be

Swom (Sec.2/

Refusal to

answer
designated

questions or
refusal to
produce
documents or
to submit to
pftysical or
mental

enrnination

Cite the disobedient deponent in


Contempt of court
The court may make the
following orders:
1. Prohibit the disobedient
party to introduce evidence
of physical or mental
condition
2. Refuse to allow tre
disobedient party to support
or oppose claims or
defenses
3. Skike out pleadings or parts

Failure of Party

to attend or
serve answens

to written
interrogatories
(Sec.5)

him reasonable expenses


incuned, including attorney's
fees.
The court, on motion and notice,
may:
1. Strike out all or any part of
any pleading of disobedient
party;
2. Dismiss the action or
proceeding or any part

thereot
J. Enter a judgment by defaull
4.

against disobedient party,


Order payment of
reasonable expenses
incurred by the other
fiaes.

lf a party refuses to answer the whole written


interrogatories, Secfibn S of Rute 29 applies.
Where a party refuses to answer a particular
question, in the set of written interrogatories

and despite an order compelling him

to

No. 172175, October

g,

answer, still refuses to obey the order, Section


3(c) wtll apply (Zepeda v. China Banking

Coryoration, G.R.
2006).

Expenses and attomey's lrees are not to be


imposed upon the Republic of the philippines
under this rule.

Trial is the judicial process


and determinino the

thereof

4.
5.

Stay further prooeedings


Dismiss the action or
proceeding or any part

thereof

6.

fsec. 3,

7.

lLi

Rule 26 (Sec.4)

The court, upon proper


application, issue an order
requiring the other party to pay

Renderajudgmentby
default against disob6dient
party
Direct the anest of any
qarty or agent of a party
disobeying any ofsuch
orders except an order to
submit to a physical or
mental examination

RurS'f,ftffi#ffi,"

5en Felu Gollege of Lab


2011 CENTRALIZED BAR OPERATIONS
SECTION

1.

4. REQUISITES OF MOTION TO
POSTPONE TRIAL FOR ILLNESS OF

NOTICE OF TRIAL

SECTION

PARTY OR COUNSEL
Reception of evidence
and other processes:
the period for the
introduction of evidence

confined in trial but


embraces several
stages of litigation,
including the pre-trial

Requisites:

1. A motion for postponement

2.

2.

POSTPONEMENTS
and to any stated time, as the expeditious and
convenient transaction
business may
require.

of

However, the court has no power to adjourn a


trial for:
1. A period longer than one month for each
adjournment; OR
More than 3 months in all, except when
authorized
writing
the court
administrator, Supreme Court.

2.

in

POSTPONE TRIAL FOR ABSENCE OF


EVIDENCE

2.

b.

The presence of

such

party

for

and

That the character of his illness is


such as to render his non-attendance
excusable.

Postponements are addressed to the


sound' discretion of the court. ln the
absence of grave abuse of discretion, it
cannot be controlled by mandamus (O/sen
v. Fresse/ & Co., G.R. No. 12955, Nov. 8
1917).

SECTION 5. ORDER OF TRIAL

Defendant presents
evidence to support
his defense/

Third-party complaint

postponement stating the

ground relied upon must be filed; AND

The motion must be supported by


affidavit showing:
a.

an

. The materiality and relevancy of such

b.

evidence; and

That due diligence has been used to


procure it.

lf the adverse party admits the facts to


be given in evidence, the trial will not
be postponed even if he objects or
reserves the right to object to their
admissibility (Feria, Civit procedure
Annotated, Vot. 1, p. 565).

Note: This section DOES NOT appty

or

counsel at the trial is indispensable;

counterclaim/
crossclaim/

Requisites:

motion

an

by

SECTION 3. REQUISITES OF MOTION TO

1. A

a.

ADJOURNMENTS AND

A court may adjourn a trial from day to day,

The motion must be supported by


affidavit or sworn certification showing:

Does not necessarily


imply presentation of
evidence in open court
but the parties are
afforded the opportunity
to be heard.

SECTION

stating the

ground relied upon must be filed; and

ffi

{P

u*^.},3-\"?.#

to

criminal cases as the rule on postponenrents


in.cdminal cases is governed by Sbc. 2, Rule
119.

Qral
.

arguments
Submission of
memoranda

REMEDIAL LAW
CIVIL PROCEDURE

Note:

SECTION 8. SUSPENSION OF ACTIONS

Reverse Order of Trial

Under, ARTICLE 2030 of the Civil Code: Every


civil action or proceeding shall be suspended:
possible
willingness
discuss
cornpromise is expressed by one or both

evidence ahead of the plaintiff.

2.

Subject to Secflon 2 of Rule 37 and


unless the court for special reasons, othenruise
directs, the trial shall be limited to the issues
stated in the pre-trial order.

ln this situation, the defendant presents

1. lf

require proof (Sec. 2, Rute 129).

Note:

parties;OR

lf it appears that one of the parties, before


commencement of the action or

the

the offer.

SECTION

Ratio: Plaintiff need not have to present


evidence since judicial admissions do not
Evidence offered

in rebuttal is

not

automatically excluded just because it would


have been more properly admitted in the case
in chief (Regalado, Remedial Law
Compendium, Volume

SECTION

I,

gth

Ed., p.375).

6. AGREED STATEMENTS OF

FACT

proceeding, offered to discuss a possible


compromise but the other party refused

When Proper:
lf the defendant in his answer relies upon an
affirmative defense, a reverse order of trial is
proper.

to

9. JUDGE TO

REGEIVE

EVIDENCE; DELEGATION TO CLERK OF


GOURT.

General Rule: The judge shall personally


receive and resolve the evidence to be
adduced by the parties.

HOWEVER, the reception

of such

may be delegated under the

evidence
following

conditions:

1. The delegation

may be made only ln

defaults or ex-pafte hearings, and in any


This is known as Stipulation of Facts and is
among the purposes of a pre-trial. Under the
Rules, it must be in writing. But it may also be

verbally made in open court.

Note: lf NO EVTDENCE tS PRESENTED


and the case is submitted for decision on an
agreement of the parties, the court should
render' judgment

in

accordance with said


agreement. The court cannot impose upon
the parties a judgment different from their
compromise agreement.

2.

3.
4.

case where the parties agree in writing;

The reception of evidence shall be made


only by the clerk of that court who is a
member of the bar;
Said clerk shall have no power to rule on
objections to any question or to admission
of evidence or exhibits; and

He shall submit his report and transcripts

of the proceedings,

hearing.

However, the compromise agreement must


not be contrary to law, morals, good customs,

public order and pubtic poticy (phitippine Bank

of Communications v. Echiveni, G.R. No. L41795, Aug.29,1980).

Stipulations gf Facts (SOF) are not


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

May be signed by the


counsel alone who has
a special power of
May be made verbally

or in writing.

Must be signed both by


the counsel and the
accused.
Strict; lt must always be
in writing.

SECTION 7. STATEMENT OF JUDGE


62

together with the

objections to be resolved by the court,


within 10 days ftom the.termination of the

of duty

$un Fete

@stlege of

i[eb

2011 CENTRALIZED BAR OPERATIONS

2.

Filed with different branches of the same

RTC and one

of such cases has

NOT

been partially tried.

Purpose: To avoid multiplicity of suits, guard


against oppression or abuse, prevent delay,
clear congested dockets, simplify the work of
the trial court and save unfiecessary costs and
expenses.

Requisites for Consolidation:


1. Actions which involve a common question
of law or fact; and

2. There must be at least 2 actions pending


before the same court.
. lf filed with DIFFERENT courts, an
authorization from the SUPREME COURT
is necessary.

Three (3) Ways of Gonsolidating Cases


1. By recasting the cases atready instituted Reshaping of the cases by amending the
pleading and dismissing some caseJ and
. retaining only one case. There must be
joinder of causes of action and of parties;

2. By

consolidation

proper or

consolidating the existing cases

by

lt is a

joint trial with joint decision, the cases


retaining their original docket numbers;

3.

and

Reference to a commissioner may be had


by the written consent of both parties.

General Rule: Trial by commissioner depends


largely upon the discretion of the court; BUT

the following are

instances when such

appointment is mandatory:
1. Expropriation (Rule 67);
Partition (Rule 69);

2.
3. Settlement of Estate of a Deceased
Person in case of contested claims; and
4. Submission of accounting by executors or
administrators.

Note: An irregularity in the appointment of a


commissioner must be seasonably raised in
the trial court where the defect could still be
remedied. lt can be WAIVED by consent of
the parties, express or implied.
SECTION

2.

REFERENCE ORDERED ON

MOTION

Situations when reference to a Commissioner


may be made ON MOTION: IETC-AI

1. lxamination of a long account;


2. Taking of an account is necessary;
3. Garrying a judgment or order into effect; or
4. Question of fact, other than upon the
pleading arises.

By fesl-case method - by hearing only the


principal case and suspending the hearing

SECTION

cases retain their originat docket numbers.

Requisites of the Order of Reference:

on the other cases until judgment has


been rendered iri the principal case. The

Consolidation of clses on appeal and


assigned to different divisions of ine SC anO

the CA is also authorized.

Note: The consolidation of civil with criminal


is allowed. This is now sanctioned
under Section 2(d, Rute 1'lt of the Rulei of
Criminal Procedure (Canas v. peralta, G.R.

cases

No. L-38352, Aug. 19, 1982).

3.

bT

ORDER
REFERENGE"
POWERS OF THE COMMISSIONER

1. lt must state the purpose;


2. lt must be in writing; and
3. lt may'specify or limit the power of the
commissioner.

Powerc of

the

SECTION 2. SEPARATE TRIALS

SECTION

1.

REFERENCE BYCONSENT

Gommissioner - a person to whom a case


pending in court is referred, for him to take

testimony, hear the parties and report thereon


to the court, and upon whose report, if
confirmed, judgment is rendered (2 Martin, p.
142).

63

BEMEDIAT

TATTY

CIVIL PROCEDURE
SECTION 5. PROCEEDINGS BEFORE THE
COMMISSIONER

SECTION

6.

FAILURE OF PARTIES TO

APPEAR BEFORE COMMISSIONER


Where the order was merely to examine the
accounts involved in the counterclaim without

of law shall

thereafter

be

considered.

SECTION

13.

COMPENSATION

OF

COMMISSIONER

to

any

direction
hold hearings, the
commissioner do not need the presence of the
parties (Froilan v. Pan Oriental Shipping, G.R.
No. L-6060, September 30, 1 954).

SECTION 7. REFUSAL OF WTNESS

Disobedience
commissioner

to a subpoena issued by the


is deemed a contempt of the

court which appointed the latter.

SECTION

questions

8.

SECTION 1. DEMURRER TO EVIDENCE

Demurrer to Evidence is a motion to dismiss


based on the ground of insufficiency of
evidence and is presented after the plaintiff
rests his case.

Nature: There is only a one-sided trial, i.e., it

COMMISSIONER SHALL

is

only the plaintiff who has

presented

AVOID DELAYS

evidence.

SECTION 9. REPORT OF COMMISSIONER

Purpose: To discourage prolonged litigations.

Clerk of court must be


a lawyer.

Commissioner need not


be a lawyer.

Clerk of court cannot


rule on objections or on
the admissibility of
evidence.

Commissioner can rule


on objections or on
admissibility of
evidence.

Delegation is made
during trial.

Commissioner can be
appointed even afrer
the case has become

of the

report

of

Rule 16.

the

commissioner:
1. The parties shall be notified by the clerk;

2.

AND

The parties shall be allowed 10 days


within which to bbject to the findings of the
report.

Note: Objections to the report based upon


grounds which were available to the parties

during the proceedings before

the

commissioner shall not be considered by the


court, UNLESS they were made before the
commissioner.
SECTION 11. HEARING UPON REPORT

SEGTION

12.

STIPULATIONS

AS

TO

FINDINGS

When the parties stipulate that


commissioner's finding shall
64

be final,

Presented before a
responsive pleading
(answer) is made by
the defendant.
It may be based on anY
of those enumerated in

SECTION 10, NOTICE TO THE PARTIES OF


THE FILING OF REPORT

Upon the filing

It is presented after the


plaintiff has rested his
case.

only

lf the motion is denied,


the defendant may
present his evidence.
lf the motion is granted,
the complaint is
dismissed. The
REMEDY of the plaintiff
is APPEAL.

lf the motion to dismiss


is denied, the

defendant may file his


responsive pleading.
lf

$e

motion to dismiss

is granted, lhe
complaint is dismissed

and depending on the


ground, the complaint
mav be re-filed.

5sn Frle olhge of {lb


2O11 CENTRALIZED BAR OPERATIONS

Denial is
INTERLOCUTORYSec. 1, Rule 36 (That
judgment should state
clearly and distincfly
the facls and the law
on which it is based),
will not apply.
The denial is NOT
appealable.

present his evidence


and submits the case
for decision based on
the prosecution's
evidence.

Order of the court is


An ADJUDICATION

ON THE MERITS.
Hence, the
requirement in Sec. /,
Rule 36 should be
complied with.

Judgment on Demurrer

to

Evidence is a

judgment rendered by the court dismissing a


case upon motion of the defendant, made after
plaintiff has rested his case, on the GROUND
that upon the facts presented and the law on
the matter, plaintiff has not shown any right to
relief.

Defendant need not ask


for leave of court.

May be filed with or


without leave of court.
Leave of court is
necessary so that the
accused could

present his evidence

Note: The requirement under this

Rule

would apply if the demurrer is granted, for in


this event, there would in fact be adjudication
upon the merits of the case, leaving nothing
more to be done (Nepomuceno v. COMELEC,
G.R. No. L-60601, Dec.29, 1983).

if the demurrer is

Ifthecourtfinds

.-

plaintiffs evidence
insufficient, it will grant
the demurrer by
dismissing the
complaint.

The judgment of
dismissal is appealable.
lf plaintiff appeals and
judgment is reversed by
the appellate court, it
will decide the case on
the basis of the
plaintiff s evidence with
the consequence that
the defendant already
loses his right to
present evidence;
There is no res judicata
in dismissal due to
demurrer.
The plaintiff files a
motion to deny motion
to demurrer to
evidence.

denied"
lf the court finds the
prosecution's evidence
insufficient, it will grant
the demurrer by
rendering judgment
acquitting the
accused. Judgment of
acquittal is not
appealable; double
ieopardy sets-in.
Judgment of acquittal
is not appealable;
double jeopardy setsin.

Judgment on the Pleadings is a judgment


rendered by the court if the answer fails to
tender an issue, or otherwise admits the
material allegations of the adverse party's
pleading.

It is rendered without a trial, or even without a


pre-trial.

SECTION

1.

JUDGMENT

PLEADINGS

ON

THE

judgrnent on the pleadings must be on

motion of the claimant. HOWEVER, if at the


pre-trial the court finds that a judgment on the

pleadings

is

proper,

it

may render

such

18).

One

fiFJii#ffiffi

The court may motu


propio deny the
motion.

to
to
,ANT

rty and
lf court denies the
demurrer, defendant will
present his evidence.

It court denies the


demurrer:
lf demurrer was with

GR No.

leave, accused may


present his evidence.
lf demurrer was

without leave,
accused can no lonoer

by Filing

of
1.

lneieva

2.
6s

REMEDIAL LAW
CIVIT PROCEDURE

Allegations of damages in the complaint.

Grounds for Judgment on the pleadings


-issue
'l . The answer fails to

tender an

because of.

,
2.

Based on the
pleadings,
depositions,
admissions
and affidavits.

a. General denial of the material


allegations of the complaint;
b. lnsufficient denial of the material

allegations of the complaint; OR


The answer admits material allegations of

the adverse party,s pleading.

Note: By moving for judgment on the


pleadings, plaintiff waives -his claim for
unliquidated damages. Claim for such

damages must be alleged and proved.

No Judgment on the Pleadings in Actions


for:
't. Declaration of Nullity of Marriage;
2.
3.

Annulment of marriage; and


Legal Separation.

Filed by a defendant to
a complaint,
counterclaim, crossclaim or 3d-party
complaint.

Fibd by the plaintiff if


the answer fails to
tender an issue

Ngte: lf the comptaint

states no cause of

actlon, a motion to dismiss should be filed


and
not a motion for judgment on the pleadingi.
for Judgment on the pteadings
fInat
{etion
rs considered ex pafte

is one

Based solely
on the

pleadings.

Available to
both plaintiff
and
defendant.

Generally
available only
to the plaintiff,
unless the
defendant
presents a
counterclaim.

Available to
plaintiff.

There is
no genuine
issue between
the parties,
r.e. there may
be issues but
these are
irrelevant-

The answer
fails to tender
an issue or
there is an
admission of

No issue as
no answer is
filed by the
defending

43886, Juty 19, 1989).

1O-day notice
required,

3-day notice
required.

3day notice

May be
interlocutory
or on the
merits.

On the merits.

On the merits.

Available only
in actions to
recover a
debt, or fora
liquidated sum
of money or
for declaratory
relief.

Available in

Available in

any action
except
annulment of
maniage or
legal
separation
cases.

any action
except
annulment of
marriage or
legal
separation
cases,

There is

There is no
answer filed.

lf filedby

already an
answer filed.'

*wa

adefendanffi
ffiay

ffi

Summary Judgment is a judgment rendered


ny a court without trial if it is clear that

efq

a
tlhn

ffi
W

d}

F^ftr4fr

*ei ;ffiffi&;
(

W
for

ff^u. EncSncair

ffir

tru
ffi_
,&

66

rule applies.

ffiffi.ffi&
ffi$yeirh*t "trffiffi {pffi *" &wv

exists NO GENUINE ISSUE or: controoerw-a"


to any materiat fact, EXCEPT as to tn!-am6uilt
of damages.

so as not to constitute a genuine issue for


trial.

film

be
time eveffi

fiffiffie lhere,is"

there

Genuine lssue is an issue of fact which calls


for the presentation of eviOence .
as
distinguished from an issue which l.
,fl"r,
fi ctitious,. contrived, a n d patenily,
"
n.u U.i.nli"f

paily.

material
allegations.

lf filed by
plaintiff, it
must be filed
at any time
after an
answer is
served;

becauie upon
fa.cts thus presented, the ptaintiF is
ryf:ul"i
enmted_to judgment, or motu proprio
under
fyP_18 (2s) (Dino v. vatencii, Gi. N".-r_

Based on the
complaint and
evidence, if
presentation
is required.

made
action

5m Fclc

6o[eqe of

Irb

2011 CENTRALIZED BAR OPERATIONS

1 & 2. SUMMARY JUDGMENT


FOR CLAIMANT; SUMMARY JUDGMENT

SECTIONS

FOR DEFENDING PARTY

1. Plaintiff: May file the motion

after the
answer has been served, and therefore,

2.

1. AFFIDAVITS made on

2.

llYho can file:

must wait until the


joined.

Bases of Summary Judgment

issues have

been

3.

4.

Defendant: He can move for summary

judgment at any time.

Test: Whether or not the pleadings, affidavits


and exhibits in support of the motion are
sufficient to overcome the opposing papers
and to justify the finding that, as a matter of
law, there is no defense to the action or claim
is clearly meritorious (Estrada v. Consolacion
et al., G.R. No. L-40948, June 29,1976).

DEPOSITIONS of the adverse party or a


third par$ under Rule 23

ADMISSIONS of the adverse party under


Rule 26; and
ANSWERS to interrogatories under Rule
25. All intended to show that:
a. There is no genuine issue as to any
material fact, except damages which

b.

must always be proved; and

The movant is entitled to a judgment


as a matter of law.

SECTION 3. MOTION AND PROGEEDINGS


THEREON

Even if the answer does tender an issue,


and therefore a judgment on the pleadings
is NOT proper, a summary judgment may
still be rendered if the issues tendered are
NOT genuine, are sham, fictitious,
contrived, set-up in bad faith, and patently
unsubstantial (Vergara
No. L-74766, Deeember

The motion mustalso satisfy the requirements


under Rule f5.

SECTION

4. CASE NOT

vs. Sue/fo,
2l, 1 987).

G.R.

FULLY

ADJUDICATED ON ITIIOTION

This authorizes rendition of partial summary


judgment but such is interlocutory in nature
and is not a final and appealable judgrnent
(Guevana v. CA, G.R.'No. L-49017, eug. SO,
1e83).

SECTION

personal

knowledge

Judgment

is the final consideration

determination

of a

court

and
competent

of

jurisdiction upon the matters submitted to it in


an action or proceeding.

Parts of a Judgment

5. FORM OF AFFIDAVITS AND

SUPPORTING PAPERS

Requisites of Affidavits

1. Based on personal knowledge;


2. Set forth facts as would be admissibte in

1. The opinion of the court -

2.
3.

Contains the
findings of facts and conclusions of law;
The disposition of the case
The final
and actual disposition of the rights litigated
(the dispositive part); and
Signature of the'judge (Herrera, p. 145)

evidence;

Affiant is competent to testify on matters


stated therein; and

Certified copies of all papers must be '


attached thereto and served on the
opposing party.

SECTION 6. AFFIDAVITS IN BAD FAITH

Sanctions:

1.

2.

Pay to the other party the amount of the


reasonable expenses including attomey,s
fees; and

After hearing, adjudged offending party


guilty of contempt.
the facts

67

tAW

REMEDIAT

CIVIL PROCEDURE

Allegations of damages in the complaint.

Grounds for Judgment on the pleadings

1. The

answer fails
ot

because

to tender

-irsu"

"n

a. General denial of the material


allegations of the complaint;
b. lnsufficient denial of the material

2.

allegations of the complaint; OR


The answer admits material allegations of

the adverse party's pleading.

{otei By moving for judgment on the


pleadings, plaintiff waives nis claim ior"
unliquidated damages. Claim for such

oamages must be alleged and proved.

No Judgment on the pleadings in Actions

Declaration of Nultity of Marriage;


1 Annulment
of marriage; and
?
3. Legalseparation.

N9!e: lf the comptaint

states no cause of

tor

Judgment on the pteadings is


fl{o!1on
rnar ls considered ex parte becauie one
upon
fa.cts thus presented, tne piaintif;-is

!:f'gll"l judgment, or
enuiled-to
motu propio under
N;.-iry!91s (29) (Dino v. vatencia,

ci.

43886, Juty 19, 1989).

Based on the
complaint and
evidence, if
presentation
is required.

Available to
both plaintiff
and
defendant.

Generally
available only
to the plaintiff,
unless the
defendant
presents a
counterclaim.

Available to
plaintiff.

There is

The answer
fails to tender
an issue or
there is an
admission of

No issue as
no answer is

exists NO GENUTNE TSSUE ol: *ntrou"i.u-",

any materiat fact, EXCEPT as to


of damages.
to-

t"-Jri6.,it

Genuine lssue is an issue of fact which


calls
-ls

f9r.. th9, presentation

of

eviOence
distinguished from an issue whicn
,n"il

fic{itious,. contrived, and patenty

l.
"
;fi;"ianli;i

so as not to constitute a genuine issue


for

triii

material
allegations.

3day notice

May be
interlocutory
or on the
merits.

On the merits.

On the merits.

Available only
in actions to
recover a
debt, or for a
liquidated sum
of money or
for declaratory
relief.

Available in

Available in

any action
except
annulment of

any action
except
annulment of

rule applies.

maniage or

lf filed by

plaintifi it
must be filed
at any time
after an
answer is
served;
lf filed
^&

rlefo..t.'^ffi
mal be fitfiffitr

maniage or

legal
separation
cases,

legal
separation
cases.

There is
already an
answer filed.

There is no
answer filed.

time everS efd


ffi
ffiffi."ffi&
,&frffie
there"is-

ffib$vef-F*-{ .#4$ffi {#W

*_

ffi
-{s&

ewv

nnffin p^*dl

be

oeffiffi ;i&;U

:":ffi
ffi
speffi;1
tnffiv

noW,

for

F,,q

ffiffi

dtmffi

;ru ffi--{"{j

ffi
66

defending
party.

3-day notice
required.

bv

Judgment is a judgment rendered


lummary.
oy a court without trial if it is clear
that there

filed by the

1O-day notice
required.

Filed by the ptaintiff if


the answer fails to
tender an issue

actton, a motion to dismiss should


be filed and
not a motion for judgment on the pfeaOffi- '

Based solely
on the
pleadings.

no genuine
issue between
the parties,
r.e. there may
be issues but
lhese are
inelevant.

fior:

Filed by a defendant to
a complaint,
counterclaim, cross_
claim or 3d-party
complaint.

Based on the
pleadings,
depositions,
admissions
and affidavits.

made
action

$en Felu 6o[ege of llf


2011 CENTRALIZED BAR OPERATIONS

1 & 2. SUMMARY JUDGMENT


FOR CLAIMANT; SUMMARY JUDGMENT
SECTIONS

FOR DEFENDING PARTY

1. Plaintiff: May file the motion after the

3.

answer has been served, and therefore,

2.

1. AFFIDAVITS made on

2.

llVho can file:

must wait until the


joined.

Bases of Summary Judgment

issues have

4.

been

Defendant: He can move for summary

judgment at any time.

Test: Whether or not the pleadings, affidavits


and exhibits in supporl of the motion are
sufficient to overcome the opposing papers
and to justify the finding that, as a matter of
law, there is no defense to the action or claim
is clearly meritorious (Estrada v. Consolacion
et al., G.R. No. L-40948, June 29,1976).

FULLY

Judgment

This authorizes rendition of partial summary


judgment but such is interlocutory in nature
and is not a final and appealable judgment
(G-uevana v. CA, G.R. No. L-49A17,'eig. SO,

of a

court

and
competent

of

jurisdiction upon the matters submitted to it in


an action or proceeding.

Parts of a Judgment

1.

5. FORM OF AFFIDAVITS AND

2.

SUPPORTTNG PAPERS

Requisites of Affidavits:

1
2.

is the final consideration

determination

1effi).

SECTION

Even if the answer does tender an issue,


and therefore a judgment on the pleadings
is NOT proper, a summary judgment may
still be rendered if the issues tendered are
NOT genuine, are sham, fictitious,
contrived, set-up in bad faith, and patenfly.
unsubstantial (Vergara vs. Sue/fo, G.R.
No. L-74766, December21, I987).

The motion must.also satisfy the requirements


under Rule 75.

4. CASE NOT

must always be proved; and

The movant is entitled to a judgment


as a matter of law.

THEREON

SECTION

DEPOSITIONS of the adverse party or a


third party under Ru/e 23
ADMISSIONS of the adverse party under
Rule 26; and
ANSWERS to interrogatories under Rule
25. All intended to show that:
a. There is no genuine issue as to any
material fact, except damages which

b.

SECTION 3. MOTION AND PROCEEDINGS

ADJUDICATED ON MOTION

personal

knowledge

3.

Based on personal knowledge;

Set forth facts as would be admissibte in

The opinion of the court Contains the


findings of facts and conclusions of law;
The disposition of the case
The final
and actual disposition of the rights litigated
(the dispositive part); and
Signature of the'judge (Herrera, p. 145)

evidence;

MENTS

Affiant is competent to testify on matters


stated therein; and

Certified copies of all papers must be


attached thereto and served on the

oT'

opposing party.

SECTION 6. AFFIDAVITS II.I BAD FAITH

Sanctions:

1.

2.

Pay to the other party the amount of the


reasonable expenses including attomey,s
fees; and

After hearing, adjudged offending party


guilty of contempt.

the facts

67

REMEDIAL LAW
CIVILPROCEDURE

7. lt should contain a dispositive

part and

B.

should be signed by the judge and fited

Judgment by Gonfession

It is one rendered by the court when a


party expressly agrees to the other party's
claim or acknowledges the validity of the
claim against him.

with the clerk of court.

Kinds of Judgments

1. Judgment upon compromise;


2. Judgment upon confession;
3. Judgment upon the merits;
4. Clarificatory judgment;
5. Judgment non pro func (Now for then);
6. Judgment sin perjuicio;
7. Judgment by default (Sec. 3, Rule 9);
8. Judgment on the pleadings (Rute 34);
9. Summary judgment (Rute 3S);

Two Kinds of Judgment by Confession


1. Judgment by COGNOVIT ACTIONEM
The defendant after service instead of
entering a plea, acknowledged and
confessed that the plaintiffs cause of
action was just and rightful.

?.

10. Several judgment (Sec. 4, Rute 36);


11. Separate judgment (Sec. 5, Rule 36);
12. Specialjudgment (9ec.11, Rute 39);
13. Judgment for specific acts (Sec. 10, Rute
3e);

both

or

14. Judgment on demuner to evidence (Rute

or

allegations, whereupon judgment was


entered against him without

33);

15. Conditional judgment;


16. Finaljudgment;
17. Amended judgment; and
'1
8. Supplemental judgment

A.

Judgment by CONFESSION RELICTA


VERIFICATIONE
After pleading and before trial, the
defendant
confessed the
plaintiffs cause of action and withdrew
abandoned his plea
other
proceeding to trial.

Note: Remedy against judgment

then if denied file the

Judgment upon a Compromise


It is one rendered by the court on the basis

41).

between the parties.

It is covered by Artictes 2028 to 2046 of

the New CivilCode.

Note: Judgment upon a compromise is


immediately executory upon the signing of

the compromise agreement in the absehce

of a motion to set aside on the ground of

fraud, mistake, etc. Hence, it haslhe effect


of res judicata (World Machine Enterprises
v. lAC, G.R. No. 72019, Dec. 20, 199e.

. The parties may submit to

c. Judgment upon the Merits is one that is


rendered after consideration of the
evidence submitted by the parties during
the trial of the case.
D.

Clarificatory Judgment is rendered to


clarify an ambiguous judgment or one
difficult to comply with. .

Where the judgment

even without approval of the court.

cannot be annulled unless

it

is

difficult to

execute because of ambiguity in its


terms, the
is to file a motion

and not to

compromise agreement at any stage

of the case, even if judgment has


already become final and executory,

appropriate

PETITION UNDER RULE 65 (Sec.l Rule

of a compromise agreement entered into

r lt

by

consent, confession or compromise is to


first file a MOTION TO SET lT ASIDE,

sef{

ffiffiffie
ffirffitrukc.!"&eA

is

vitiated with enor, deceit, violence or

of documents.(Morales ys.
Fontanos, 64 phil. 19; Articb 2a3g,

forgery

CivitCode)

Advantage of Approval of Court: The


court could render a judgment based upon

a compromise and in case of breach of

any of the conditions, the party may ask


the court for Execution of Judgment under
Rule 39.

68

toa
to its
only
and
fact and

Sm Fell

Gollege sf

{.sb

2011 CENTRALIZED BAR OPERATIONS


G. Gonditional Judgment is one wherein the

effectivity

of which depends upon the

The power to amend a judgment is


inherent to the court before judgment

occurrence or non-occurrence of an event.

As a general rule, judgments of such kind,


conditioned upon a contingency, are held
to be NULL and VOID. (Cu Unjieng y Hijos
vs. Mabalacaf Sugar Co., 70 Phil. 380)
H.

lncomplete Judgment is one which


leaves certain matters to be setfled in a
subsequent proceeding (lgnacio ys.
Hilario, 76 Phil. 605). There is a decision
but there are Still other matters to be
incorporated later in such decision.

becomes final and executory.

General Rule: After judgment has become


final and executory, the court cannot amend
the same.

Exceptions:
1. To make corrections of clerical errors, not

substantial amendments,

2.
3.
'

The

provisions

and

An affirmative and

terms are settled and voluntary act of the


agreed upon by the defendant himself. The
parties to the action, and

court exercises a certain

which is entered in the amount


record by the consent of

the court.

of supervision
over the entry of

judgment.

as by

an
amendment non pro tunc;
To clarify an ambiguity which is borne out
by and justifiable in the context of the
decision; or
ln judgments for support, which can
always be amended from time to time.

Rule: The validity of a judgment or order of a


court cannot be collaterally attacked.

Exceptions:

1. Lack of jurisdiction; and


2. lrregularity of its entry apparent from the
face ofthe record.

Promulgation refers to the process by which

a decision is published, officially

announced,

made known to the public or delivered to the


clerk of court for filing, coupled with notice to
the parties or their counsel.

o fi judge permanently transferred to


another COURT OF EQUAL
.

court which was TOTALLY HEARD by him


and submitted for decision, with the parties
(Valentin vs.
having argued the
Sta" Maria, G.R. No. L-30158, Jan. 17,

Memorandum Decision is a decision of the


appellate court which adopts the findings and

case

the conclusion of the trial court.

Promulgation of Judgment

JURISDICTION (coordinate court) can


render a decision on a case in his former

1974).

Minute resolutions of the Supreme Court


denying petition to review the decision of

the Court of Appeals are not decisions


within the requirement of Sec. 1, Rule 36
(Commercial Union Assn. Ca., Ltd. V.
Co., G.R.

Court renders decision

File an appeat within


15/30 days from notice
ofjudgment.
Losing Party

File a motion

for

t*k

reconsideration or
motion for new trial
within 15/30 days from
notice ofjudgment.

Accepts
decision
without further

{.}tr"

fi"*s4b.d

contest.

lf no appeal
is taken or
did not avail
of remedies,
judgment
becomes
final and
executory.

lf

granted,
the court:
1. Modifies
decision; or
2. Grants
new trial

lf

denied,

losing

party may appeal


within a fresh 1S
day period.
(Neypes vs. Court

some
S-year
6, Rule
Remedial

af Appeals.)

69

REMEDIAL LAW
CIVIT PROCEDURE

7. lt should contain a dispositive

part and

B.

should be signed by the judge and fited

It is one rendered by the court when a

with the clerk of court.

party expressly agrees to the other party's


claim or acknowledges the validity of the
claim against him.

Kinds of Judgments

1. Judgment upon compromise;


2. Judgment upon confession;
3. Judgment upon the merits;
4. Clarificatory judgment;
5. Judgment non pro func (Now for then);
6. Judgment sin perjuicio;
7. Judgment by default (Sec. 3, Rule 9);
8. Judgment on the pleadings (Rule 34);
9. Summary judgment (Rule 35);
10.
11.
12.
13.

Judgment by Gonfession

Two Kinds of Judgment by Confession


1. Judgment by COGNOVITACTIONEM
The defendant after service instead of
entering a plea, acknowledged and
confessed that the plaintiffs cause of
action was just and rightful.

2.

Several judgment (Sec. 4, Rule 36);


Separate judgment (Sec. 5, Rute 36);
Specialjudgment (5ec.11, Rute 39);

both

Judgment for specific acts (Sec" 10, Rute

allegations, whereupon judgment was


entered against him without

33);

15. Conditional judgment;


16. Finaljudgment;
17. Amended judgment; and
18. Supplemental judgment

proceeding to trial.

Note: Remedy against judgment

then if denied file the

upon a Compromise

41).

between the parties.

Judgment upon the Merits is one that is

It is covered by Articles 2028 to 2046 of

rendered after consideration

the New CivilCode.

of

the

evidence submitted by the parties during


the trial of the case.
is

immediately executory upon the signing of


the compromise agreement in the absence

of a motion to set aside on the ground of

fraud, mistake, etc. Hence, it has the effect


of res judicata (Warld Machine Enterprises
u. lAC, G.R. No. 72019, Dec.20, 1990).
a

compromise agreement at any stage

of the case, even if

judgment has
already become final and executory,
even without approval of the court.

r lt

cannot be annulled unless it is


vitiated with enor, deceit, violence or
forgery of documents.(Morales ys.
Fontanos, 64 phil. 19; Articte 2058,
CivitCode)

Advantage of Approval of Courtr The


court could render a judgment based upon

a compromise and in case of breach of


any of the conditions, the party may ask

the court for Execution of Judgment under


Rule 39.
68

appropriate

PETITION UNDER RULE 65 (Sec.l Rule

of a compromise agreement entered into

. The parties may submit to

by

consent, confession or compromise is to


first file a MOTION TO SET lT ASIDE,

It is one rendered by the court on the basis

Note: Judgment upon a compromise

or

or

3e);
14. Judgment on demurrer to evidence (Rule

A. Judgment

Judgment by CONFESSION RELICTA


VERIFICATIONE
After pleading and before trial, the
confessed the
defendant
plaintiffs cause of action and withdrew
other
abandoned his plea

D.

Clarificatory Judgment is rendered to


clarify an ambiguous judgrnent or one
difficult to comply with."

Where the judgment is difficult to


execute because of ambiguity in its
terms, the
is to file a motion
and not to

'#*ef$ ffitr#ilt&
WffiSfuhcWtd

toa
to its
only
and
fact and
bsequent

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2011 CENTRALIZED BAR OPERATIONS
(J.

Conditional Judgment is one wherein the


effectivity of which depends upon the

The power to dmend a judgment is


inherent to the court before judgment

occurrence or non-occurrence of an event.

As a general rule, judgments of such kind,


conditioned upon a contingency, are held
to be NULL and VOID. (Cu tJnjieng y Hgos
vs. Mabalacat Sugar Co., 70 phit. 390)

H.

lncomplete Judgment is one which


leaves certain matters to be setfled in a
subsequent proceeding (lgnacio ys.
Hilario, 76 Phil. 605/. There is a decision
but there are still other matters to be
incorporated later in such decision.

becomes final and executory.

General Rule: After judgment has become


final and executory, the court cannot amend
the same.

Exceptions:

1.

To make corrections of clerical errors, not

substantial amendments,
amendment non pro tunc;

2.

as by

an

To clarify an ambiguity which is borne out

by and justifiable in the context of

the

decision; or

3. ln judgments for support,

which can

always be amended from time to time.

The

provisions

terms are seftled

and

and
agreed upon
the
parties to the action, and
which is entered in the

by

record by the consent of

the court.

An afflrmative and
voluntary act of the
defendant himself. The

Rule: The validity of a judgment or order of a


court cannot be collaterally aftacked.

court exercises a certain

amount of supervision
over the entry of

judgment.

Promulgation refers to the process by which

a decision is published, officially

announced,

made known to the public or delivered to the


clerk of court for filing, coupled with notice to
the parties or their counsel.

Exceptions:

1. Lack of jurisdiction;and
2. lrregularity of its entry apparent from the
face ofthe record.

o I judge permanently transferred to


another COURT OF EQUAL

JURISDICTION (coordinate court) can


render a decision on a case in his former

court which was TOTALLY HEARD by him


and submitted for decision, with the parties
having argued the
(Valentin vs.

Memorandum Decision is a decision of the

case

appellate court which adopts the findings and

the conclusion of the trial court.

Sta. Maria, G.R.

Promulgation of Judgment

No.

L-3015e, Jan. i7,

1e74).

Minute resolutions of the Supreme Court


denying petition to review the decision of

the Court of Appeals are not decisions


within the requirement of Sec. 1, Rule 36
(Commercial Union Assn. Co., Ltd. V.

Court renders decision

File an appeal within


15/30 days from notice
ofjudgment.
Losing Party

File a motion

for

reconsideration or
motion for new trial
within 15/30 days from

Accepts
decision
wilhout further

notice of judgment.

contest.

lf no appeal
is taken or
did not avail
of remedies,
judgment
becomes
final and

lf

granted,
the court:
1. Modifies
decision; or
2. Grants
new trial

lf

denied,

some
S-year
6, Rule

losing

parly may appeal


within a fresh 15
day period.

3e)

relief

(Neypes vs. Court

of Appeals.)

executory.

59

REMEDIAL LAW
CIVIL PROCEDURE
SECTION 3. JUDGMENT FOR OR AGAINST
ONE OR MORE OF SEVERAL PARTIES
SECTION 4. SEVERAL JUDGMENTS

Several Judgment is one rendered by a court


against one or more defendants and not
against all of them leaving the action to

B.

AFTER the finality of the judgment

or

final order:
Relief from judgment or final order;
An annulment of judgment;
3. A petition for certiorari; and
Collateral attack of a judgment.

1.
2.
4.

proceed against the others.

Several judgment is PROPER where the


liability of each part is clearly separable and

An order denying the


motion for new trial

distinct from his co-parties such that the claims


against each of them could have been the
subject of separate suits, and the judgment for
or against one of them will not necessarily

affec{ the other.

motion for new trial based on


grounds not existing or available
when the 1s motion was filed

2no

A several judgment is NOi

PfOPER in action against solidary debtors

(Fernandez y. Sfa. Maria, G.R. No. 16A730,

Dec.10, 2004|

Appeal from the judgment or final


order and assign as one of the
enors the denial of the motion for
new trial

SECTION 5. SEPARATE JUDGMENTS

Separate Judgment is one rendered by a


court disposing of a claim, among several

others, presented in a case after determination


of the issues material to a particular claim and
all counterclaims arising out of transaction or
occurrence, which is the subject matter of said
claim.
lt is proper when more than one claim for

relief is presented in an action and a


determination as to the issues material to

the claim has been made. The action shall


proceed as to the remaining claims.

Fresh Period Rule


The aggrieved party has a "fresh period" of {5

days within which to file his appeal. This


applies to Rules 40, 41, 42, 43 and 45
(Neypes vs. CA, GR 141524, September

14,

2005).

The fresh period

of 15 days becomes

significant only when a party opts to file a


motion for new trial or reconsideration (Riano,

It is an entirely new It does not supersede


decision
and the original decision.
supersedes the original

judgment.

Court makes a thorough


study
the original
judgment and renders
amended and
clarified judgment onlv
after considering all th6
factual and legal issues.

of

Civil Procedure, 2007 Editi6n,

denying the

but to

from the

Serves to bolster or add


to the original judgment.

Remedies Against Judgments

A.

#{#ffi

or

{:k g".eldv

Final

BEFORE finatity of judgment or final order:


1. A motion for reconsideration;
A motion for new trial; or
An appeal.

and
or

2.
3.

new
taken.

70

355).

The fresh period rule does not refer to the


period within which to appeal from the order

the

Orders

p.

or
steps are

5an Fels Gollege of Lffi


2011 CENTRALIZED BAR OPERATIONS
Note.' Rule 9 Sec 3(b) on the rules from order
of default and Rule 37 on motion for new trial
have the same grounds- FAME. Rule 3T could
also be a remedy in case the defendant who is
declared in default failed to avail of the remedy
in Rule 9 Sec 3(b) and as a result, a judgment
has already been rendered. This is because
Rule 37 is broader.

One remedy available to a party declared in


default is, lf the judgment has already been
rendered when the defendant discovered the

default, but before the same has become final


and executory, he may file a mo6on for new
trial under Secfion 1 (a) of Rule 37 (Cerezo

the time the l"tmotion


was made.

only to final ordqrs or


judgments; hence, it
is allowed in
interlocutory orders.)

lf a new trial is
granted, the original
judgment or final
order is vacated. The
case stands for trial
de novo and will
tried anew.

lf the court finds that


excessive damages
have been awarded
or that the judgment
or final order is
contrary to the
evidence or law, it
may amend such
judgment or final
order accordingly.

be

vs. Tuazon).

Available even on

Rule 9 sec3(b) v. Rule 37


o Rule 9, Sectr'on 3 [b]- after notice of the
order of default but before judgment
c Rule 37- if there is already a judgment but

Available against the


judgments or final
appeal but only on the
ground of newly
orders of both the trial
discovered evidence.
and appellate courts.
Both are prohibited motions under

not yet final and executory. During the


period of filing an appeat.

Motion for a New Trial


When to file: Within the period for taking an
appeal.

Where

to file:

With the triat court which

rendered the questioned judgment.

Note: The motion for reconsideration under


Rule 37 is one that is directed against a

judgment or final order, not of an interlocutory


order which for instance, precedes a petition
for

eftionri.

Fraud

Fraud as

ground

for new trial must

be

Motion for Reconsideration

extrinsic.

When to file: Within the period for taking an

Extrinsic Fraud connotes any faudulent


scheme executed by the prevailing party

appeal.

Where

to file:

With the trial court which

rendered the judgment or final order sought to


be reconsidered.

Grounds: fraud,

arcident, mistake or
excusable negligence
or newly discovered
evidence which could
not, with reasonable
diligence, have been
discovered and
produced at the trial,
and which if
presented would
probably alter the
result.
Second motion may
be allowed so long as
based on grounds not
existing or available at

oulside of the trial against the losing party who


because of such fraud is prevented .from

presenting his side of the case (ex. prevent


wrfness tro m te dify in g).

Grounds: damages
awarded are
excessive, that the
evidence is
insufficient to justify
the decision or final
order, or that the
decision or final order
is contrary to law.

Second motion from


the same party is
prohibited. (Ihe
prohibition applies

77

REMEDIAL LAW
CIVIL PROCEDURE
Rule-' Negligence of counsel is binding on the
client.

Exception:,Such negligence of counsel may

be a ground for new trial if it was so great that

the party was prejudiced and preueiteJ

rarny presenting his case.

lro*

Requisites of Newly-Discovered Evidence


(Berry Rute)
1. lt must have been discovered after the
trial;

SECTION 2. CONTENTS OF MOTION FOR


NEW TRIAL OR RECONSIDERATION AND

NOTICE THEREOF

A motion for new trial, based on FAME must


include an affidavit of merit, which states:
1. The nature or character of FAME;

2.
3.

if his motion is granted.

2. lt could not have been discovered


3.

and
produced at the trial even with the
exercise of reasonable diligence; and

The evidence is of

affidavits

Newly discovered evidence need not be


newly created evidence. lt may anO Ooes

commonly refer to evidence already in


existence prior or during triat Out wiricir

could not have been secured


presented during the trial despite
"nO

on the part of 'the


(Tumans
vs.
Court of epi"iii,
[ig^anj
reasonabLe diligence

G.R. Nos.82 346-47, Aprit

Evjdence was noiavailable to a party


during the trial, and
was discovered onlv
thereafter.

7,

gilgi.

Evidence was atieaOy


available to a party and
was not able to present
it through inadvertence
or negligence of
counsel; not a ground
for new trial.

duly

not supported by the evidence or


contrary to law.

These standards, also known as the ,,Bern,,

ca;-if

or

motion for reconsideration must


point out the findings or conclusions

merely
collateral, cumulative or corroborative.

to the f ASf

witnesses

. A

must be material and not

rule, trace their origin

of

authenticated documents.

the action; and

Berry vs. State of Georgia.

A motion for new trial, based on newly

discovered evidence, must contain

,"(ni in"t
"rcn'

if
admitted, would probably alter ilie resutt of

4. lt

The facts constituting the movant,s good


and substantial defense or valid cause of
action;and
The evidence which he intends to present

N-ote: A motion suspends or tolls the running


of the reglementary period for appeal except

when the same is pro-forma.

An AFFIDAVTT OF |UER|TS is one

which

recites the nature and character of FAME on

which the motion

is based and stating the


movant's good and substantial cause of action
or defense and the evidence he intends to
present
the motion
granted, which

if

is

evidence should be such ls to warrant


reasonable belief that the result of the case
wotd probably be otherwise (paz vs. lnandan,
75 Phil. 608; Manita Surety vs. Det Rosario,
101 Phil.412).

Without an affidavit of merits, the motion for


new trial is a mere pro-forma motion

Note: New trial should be distinguished


from
the exercise of the discretionary
h;";;ith"
court to REOPEN a triatfor the'iniroduction
ot

additionat evidence,

to ctariff its OJrlis

on
material points. This discretion".V-por"r-i"
gubject to no rule other than tne'pirimount
interest of justice and wiil not U"
ieGweJin
appeal unless the exercise thereol,
i" ;il";;
(Arce vs. Arce, L-13O35, Nov.

new

ia,leisl----'

is not
* one
or

2.A
72

tn

a ground
motion

Sm

Frll

6ollrgr

of

Lnh

2O11 CENTRALIZED BAR OPERATIONS

lndications ol a Pro-Forma Motion


1. lt is based on the same ground as that

2.
3.

raised in a denied motion under Ru/e 3Z;


lt contains the same arguments in the
opposition to a granted motion to dismiss
The new ground alleged in the second
motion for new trial already existed, was

available and could have been alleged in

the first motion for new trial which was

4.
5.
6.

issues, shall be used at the new trial taking the


same.

Specifically mentioned
in the Rules.

Not mentioned in the


Rules but is
nevertheless a
recognized
procedural recourse
deriving validity and
acceptance from long
established usage.
Note: lt is actually
mentioned in the
Rules of Criminal
Procedure (Ra/e
119,5ec. 24) and as
a prohibited pleading
in the 1991 Revised
Rules on Summary
Procedure (Sec.

Proper only after


promulgation of
judgment.

May properly be
presented only after
either or both the
parties have formally
offered and closed
their evidence before
judgment.

Based upon specific


grounds set forth under
Rule 37 in civil cases
and Rule 121 in
criminal cases.

Controlled by no
other rule than the
paramount interests
ofjustice, resting
entirely on the sound
discretion of a trial
court, the exercise of
which discretion will
not be rwkwed on
appeal UNLESS a
dear abuse thereof is
shown.

denied;
lt is based on the ground of insufficiency of
evidence or that the judgment is contrary
to law but does not specify the supposed
defects in the judgment;
lt is based on FAME but does not specify
the facts constituting these grounds andior
is not accompanied by an affidavit of merit;
and

Non-compliance with the requirements of


Rule 15.

Note: A motion for reconsideration, if based


on the same grounds as that of a new trial, is
considered a motion for new trial and has the
same effect (Rodriguez v. Rovira, G.R. No.
45252, 5ept.24,1936).

19c).

SECTION 3. ACTION UPON MOTION FOR


NEW TRIAL OR REGONSIDERATION
SECTION 4. RESOLUTION OF MOTION

SECTION
TRIAL

5. SECOND MOTION FOR

NEW

"Single motion" Rule - a party shall not be


allowed to file a second motion for
reconsideration of judgment or a final order.
(Riano,2009)

While a second motion for reconsideration is


not allowed, a second motion for new trial is
authorized by the rules. A motion for new trial

shall include

all

grounds then available

otheruvise they are deemed waived. A second

motion for new trial, based on a ground not


existing nor available when the first motion

was made within the period allowed but


excluding the time during which the first
motion had been pending.

SECTION

6.

EFFECT OF GRANTING OF

MOTION FOR NEWTRIAL

When motion is granted, the originaljudgment


is thereby vacated and the action stands for
trial de noyo, but the recorded evidence taken
upon the former trial so far as the same is

material and competent

to

establish the

ORDER
OR
REC

Not

the denial

judgment or

appeal from

appeal from the

73

REMEDIAL LAW
CIVIL PROCEDURE

Denial of the motion; the "fresh period"


rule- if the motion is denied, the movant
has a fresh period offifteen (15) days from
receipt or notice of the order denying or
dismissing the motion for reconsideration
within which to file a notice of appeal. This
"fresh period" rule applies not only to Rule
41, but also to Rule 40, Rule 42, Rule 43
and Rule 45. (Neypes vs Court of Appeals,
G.R. No. 141524, September 14,2005).

Available BEFORE

Available AFTER
iudgment becomes final judgment has become
and executory.
final and executory.
Applies to
Applies to judgments, final
JUDGMENTS oT FINAL orders and other
proceeding;
ORDERS only.
Land Registration;
Special Proceedings;
Order of Execution.
GROUNDS:

GROUNDS:
a. FAME

a. FAME; and
b. Newly discovered
evidence.

Note: This is not applicable to the Supreme


Court because it is not a TRIER of FACTS.

Filed within the time to


appeal.

judgment and
Within 6 months from

SECTION 1. PETITION FOR RELIEF FROM

JUDGMENT, ORDER
PROCEEDING

OR

entry of judgment.

OTHER

This remedy presupposes that judgment has


already become final and executory.

Filed within 60 days fom


knowledge of the

lf denied, the order of


denial is NOT
appealable, hence
remedy is appeal from
the judgment.

lf denied, the order


denying a petition for relief
is NOT appealable; the
remedy is appropriate civil
action under Rule 65.

Nature: Not an independent action but a


CONTINUATION of the otd case. tt is fited with
the same court which decided the case.
Grounds:

1.

When judgment or final order is entered


into or any other proceeding is thereafter

taken against the petitioner through


FAME.

The phrase "other proceeding', includes an


order or writ of execution, or an order
dismissing an appeat (Medran v. CA, g3
Phit 164)

2.

When petitioner has been prevented from


taking an appeatby FAME.

A party who has filed a timely motion for new


trial and/or reconsideration cannot file a
petition for relief after his motion has been
denied. These remedies'are exclusive of each
other. lt is only in appropriate cases where a
party aggrieved by the judgment has not been
motion for new trial and/or
reconsideration that a petition for relief can be
filed (Francisco vs. Puno, G.R.No. L-55694,
October 23, 1981).

able to file

SECTION 3. TIME FOR FILING PETITION;


CONTENTS AND VERIFICATION

Note:

A petition for relief has been held to be


applicable to all kinds of speciat proceedings,
such as land registration, intestate setfleme-nt
and guardians[ip proceedings (Regatado,
RemedialLaw Compendium, Vot. t, dh-fa., p.

A:

432).

SECTION 2. PETITION FOR RELIEF FROM


DENIAL OF AN APPEAL
The petitioh is, in effect, a second opportunity
for an aggrieved party to ask for a'new triai.
Hence, the grounds mentioned have the same
concepts that they have in motion for new trial.

74

Lines,

$er Bela CoIIege

ot

Lsb

201 1 CENTRALIZED BAR OPERATIONS

3.

6.

The affidavit of merit accompanying the

SECTION

facts
constituting the petitioner's good and
substantial cause of action or defense as
the case may be.

ANSWER IS FILED

petition must also show

the

Affidavit of Merit is one which recites the


nature and character of fraud, gccident,

gqistake or g,xcusable Negligence (FAME) on


which the motion is based.

It serves as the jurisdictional basis for the


court to entertain a petition for relief. However,
it is not a fatal defect to warrant denial of the
petition so long as the facts required to be set
out also appear in the verifled petition.
lnstances When an Affidavit of Merit is NOT
Necessary

1.

Where there

2.
3.
4.
5.

is no jurisdiction over the


subject matter;
Where judgnnent was taken by default;
Where judgment was entered by mistake
or was obtained by fraud; or
Other similar cases.

is no jurisdiction over the

defendant;

Where there

SECTION

4.

PROCEEDINGS AFTER

Two Hearings under Rule 38

1. Hearing to

2.

determine whether the

judgment should be set aside; and


lf in the affirmative, a hearing on the merits
of the case.

7.

SECTION

PROCEDURE WHERE THE

DENIAL OF AN APPEAL IS SET ASIDE

Remedies

it Rule 38 No Longer Available

1. Petition for Annulment of Judgment under


Rule 47; and
2. A direct or collateral attack if judgment is
void ab initio for lack of jurisdiction.

Note: Under A.M. No. 08-8-7 SG, otherwise


Known as the RULE OF PROCEDURE FOR
SMALL CLAIMS CASES, a Motion fOr New
Trial or Reconsideration (Ru/e 37),' and a
Petition for Relief ftom Judgment (Rule 38) are
prohibited pleadings.

Both remedies, likewise, are

prohibited

pleadings under the RULE ON SUMMARY


PROCEDURE.

ORDER TO FILE AN ANSWER

This remedy precludes the issuance

of
summons upon its filing. lf the petition is
sufficient in form and in substance, the court
shall issue an order requiring the adverse
parties to answer within 1S days from receipt
thereof.

Failure

Execution is a process provided by law for the


enforcement of a finaljudgment.

Against Whonr lssued: Execution can only

to file

answer does not warrant

declaration of default.

SECTION

5.

PRELIMINARY INJUNGTION

issue against a party and not against one who


has not had his day in court.

Writ of Execution is judicial writ issued to an

PENDING PROCEEDINGS

Rule: Execution of judgment is not stayed


a writ of preliminary injunction is

UNLESS

issued by the court.

Upon Filing of the Petition:


1. The court in which the petition is filed may
grant such PREL|MINARY TNJUNCTTON
as may be necessary for the preservation
o-f the right of the parties, upon the fiting by
. the petitioner of a bond in favor of ,the

2.

adverse party.

Such injunction shail NOT DTSCHARGE


ANY LIEN which the adverse party may
have acquired upon the property of thi

R$ffieffi#tftritof
;.

Of

or
the

which

or
or
court
been

petitioner.

75

REMEDIAL LAW
CIVIL PROCEDURE
Test to Determine Whether a Judgment or
Order is Final or lnterlocutory
lf the judgment or order leaves nothing more
for the court to do with respect to the merits of
the case, it is a FINAL ORDER. Otherwise, it
is an INTERLOCUTORY ORDER.

3. lquitable grounds like a change in


situation of the parties which makes
execution inequitable; (Supervening fact

4.

Classes of execution

A. As to their nature:
1. Compulsory execution Execution

(Section 1)

2.
B.

as a

Execution is gnjoined

e.g. Petition for Relief from Judgment or


Annulment of Judgment with TRO or writ
of prel i m i n ary inj u n ctio n

known as

Matter

of

Right

Discretionary execution
known as
Execution Pending Appeal (section 2)

2.

EXECUTTON

5.

Judgment has become dormant; except:

6.

support which can be executed by motion


Execution is gnjust or impossible.

Note: lssuance of'the corresponding writ of


execution upon a final and executory judgment
is a ministerial duty of the court to execute
which is compellable by mandamus. (Ebero
vs. Cafiizares,79 Phil. 152)

As to how it is enforced (Section 6):


'1. Execution by motion
Execution by independent action

SEGTlOirl 1.

doctrine)

JUDGMENTS AND FINAL ORDERS.

Take note that for the supervening event to


apply, the supervening event must happen

Execution as a Matter of Right

executory.

1.

UPON

after the judgment has become final and

On motion;

2. Upon a judgment or order that disposes of


the action or proceeding;
3. Upon expiration of the period to appeal
therefrom and NO appeal has been duly
perfected.

lnstances where execution is a matter of


right:
1. Secfircn 1, paragraph I - no appeal;

2.

Execution of Judgment

3.
Execution is a

matter of right after


expiration of period
to appeal and no
appeal is perfected.

Discretionary
execution upon

judgment becomes final;

Section 1, paragraph

2 - there is

final;

Section 4 - Judgment in an action for


injunction, receivership, accounting,

support, judgment declared

good reasons stated


in a special order
afterdue hearing.

4.

an

appeal; once the CA judgment becomes

to

be
immediately executory; and
Rule 70 - Judgments in Forcible Entry and
Unlawful Detainer cases.

Quashal of Writ of Execution When Proper:

(c-wwDss)
1. A ghange in the situation of the parties

Sheriff enforces writ of execution.

renders execution inequitable;


party is made to indemnify thru:
Payment with interest;
Levy and sale of personal property;
Levy and sale of ieal propertyi
Delivery of personal and real-property.

losilg

1.
?
9
4.

to

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

of the

of the winning party. The court cannot refuse


execution.

Unless: (l- NEED - U)


1. Where the judgment turns out

2.
76

lncomplete or conditional;
Judgment govated by parties;

to

of
be

for

a decision

9il

Fets

@otbge ot

Lsb

2011 CENTRALIZED BAR OPERATIONS


decidendi (Mutual Security Ins. Corp. vs.

CA, GR /Vo. L-47018, September

2.

11,

1987); and

Where extensive and explicit discussion


and settlement of the issue is found in the
body of the decision (Witson Ong Ching
Kian Clzung, et al vs. Chinese National
Cereals Oil and Foodstuffs lmport and
Export Corp., et at., GR No 131502, June

8,20Aq.

Note: When the writ of execution varies the


terms of the dispositive portion, the defeated
party CAN FILE:

1. Motion to quash the writ of execution, if


denied; and
2. File petition for certiorari under Ru/e 65
with prayer for TRO (Atbano, Remediat
Law Reviewer).
SECTION 2. DISCRETIONARY EXECUTION

"The requirement of good reason is important


and must not be overlooked, because if the
judgment is executed and, on appeal, the
same
reversed, although there are
provisions for restitution, qftentimes damages
may arise which cannot be fully compensated.
Accordingly, execution should be granted only
when these considerations
clearly
outweighed
superior circumstances
demanding urgency, and the above provision
requires a statement of those circumstances

is

are

by

as a securig for their existence." (City of

Bacolod vs. Enriquez, 101 Phil. 644)


Examples of good reasons:

1.

When there is danger of the judgment


becoming INEFFECTU AL. (Scottish Union
vs. Macadaeg, 91 Phil. 891);
OLDAGE;
Where the appeal is for the purpose of

2.
3.
DELAY;
4. When the successful party files a'BOND
(but is not by itself alone, a good reason);

May issue before the


lapse of period to
appeal, and even
Discretionary upon the
court, there is inquiry
on whether there is
GOOD REASON for
execution.

Period to appeal has


already lapsed and no
appeal is perfected.
Ministerial duty of the

court PROVIDED there


are no supervening
events.

Execution Pending Appeal


By the Appellate Gourt
It can order the execution of judgment pending
appeal for good reasons.

An award for actual and

compensatory
damages may be ordered executed pending

appeal, but not

an award for moral

or

exemplary damages.

Ratio: Moral and exemplary damages are


dependent on the outcome of the appeal.
While the amounts of actual damages are
fixed and certain (Radio Communications of
the Phils., lnc. v. Lantin, G.R. No. L-59311,
January 31, 1985).

SECTION

3. STAY OF DISCRETIONARY

EXECUTION

The party against whom an execution is

By the Trial Gourt


May also do so in the exercise of its residual

jurisdiction under Rule 41 and 42.

Grounds:

1. lnsolvency of the judgment debtor; and


2. Wastage of asset by judgment debtor.
The court may, in its discretion, order an
execution before the expiration of the time

within which to appeat, pROVtDED:


1. There is a motion for execution filed by the
winning party;
There is notice of said motion to the
adverse party; and
There are good reasons stated in a special
order after due hearing.

2.
3.

is NOT

77

REMEDIAL LAW
CIVIL PROCEDURE
Test to Determine Whether a Judgment or
Order is Final or Interlocutory
lf the judgment or order leaves nothing more
for the court to do with respect to the merits of
the case, it is a FINAL ORDER. Otherwise, it
is an INTERLOCUTORY ORDER.

3. lquitable grounds like a change in


situation of the parties which makes
execution inequitable; (Supervening fact

4.

Glasses of execution

A. As to their nature:
1. Compulsory execution Execution

known as

Matter

of

Right

Discretionary execution
known as
Execution Pending Appeal (Section 2)

1.
2.

EXECUTION

UPON

Execution as a Matter of Right

2.
3.

Execution of Judgment

matter of right after


expiration of period
to appeal and no
appeal is perfected.

6.

support which can be executed by motion


Execution is unjust or impossible.

Note: lssuance of'the corresponding writ of

Take note that for the supervening event to


apply, the supervening event must happen
after the judgment has become final and
executory.

On motion;
Upon a judgment or order that disposes of
the action or proceeding;
Upon expiration of the period to appeal
therefrom and NO appeal has been duly
perfected.

Execution is a

Judgment has become dormant; except:

vs. Cafiizares,79 Phil. 152)

JUDGMENTS AND FINAL ORDERS.

1.

5.

exeeution upon a final and executory judgment


is a ministerial duty of the court to execute
which is compellable by mandamus. (Ebero

As to how it is enforced (Section 6):


Execution by motion
Execution by independent action

SEGTION 1.

Execution is gnjoined

e.g. Petition for Relief from Judgment or


Annulment of Judgment with TRO or writ
of pre li m in ary i nju n ctio n

(Section 1)

2.
B.

as a

doctrine)

lnstances where execution is a matter of


right:
1. Secfion f, paragraph I - no appeal;

2.
3.

Discretionary
execution upon

judgment becomes final;

Section 1, paragraph

2 - there is

final;

Section 4 - Judgment in an action for


injunction, receivership, accounting,

support, judgrnent declared

good reasons stated


in a special order
after due hearing.

4.

an

appeal; once the CA judgment becomes

to

be

immediately executory; and


Rule 70 - Judgments in Forcible Entry and
Unlawful Detainer cases.

Quashal of Writ of execution When Proper:

(c-wwDss)
1. A ghange in the situation of the parties

Sheriff enforces writ of execution.

renders execution inequitable;


Losing party is made to indemnify thru:

1.
?.
3
4.

Payment with interest;


Levy and sale ofpersonal property;
Levy and sale ofreal propertyl
Delivery of personal and real property.

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


of the winning party. The court cannot refuse
execution.

Unless: (l- NEED - U)


1. Where the judgment turns out

2.
76

lncomplete or conditional;
Judgment qovated by parties;

to

yof
be

for

9m Bela @olbgr ot Leb


2011 CENTRALIZED BAR OPERATIONS
decidendi (Mutual Security lns. Corp. vs.

CA, GR No. L-47018, September

2.

'The requirement of good reason is important


and must not be overlooked, because if the
judgment is executed and, on appeal, the

11,

1987); and

Where extensive and explicit discussion

same

is

reversed, although there are

and settlement of the issue is found in the


body of the decision (Wilson Ong Ching
Kian Chung, ef al ys. Chinese Nationat
Cereals Oil and Foodstuffs lmport and
Export Corp., et at., GR No 131502, June

provisions for restitution, ofientimes damages


may arise which cannot be fully compensated.
Accordingly, execution should be granted only

8,2000).

demanding urgency, and the above provision


requires a statement of those circumstances

when these considerations are clearly


outweighed by superior circumstances

Note: When the writ of execution varies the


terms of the dispositive portion, the defeated

Bacolod vs. Enriquez, 101 Phil. 644)

1.

Examples of good reasons:

as a security for their existence." (City of

party CAN FILE:

2.

Motion to quash the writ of execution, if

1.

denied; and

File petition for ceftiorai under Ru/e 65


with prayer for TRO (Albano, Remedial

When there is danger of the judgment

becoming INEFFECTU AL. (Scattish Union


vs. Macadaeg,91 Phil. 891);
OLDAGE;
Where the appeal is for the purpose of

2.
3.
DELAY;
4. When the successful party files a BOND

Law Reviewer).
SECTION 2. DISCRETIONARY EXECUTION

(but is not by itself alone, a good reason);


May issue before the
lapse of period to
appeal, and even
during appeal.

Period to appeal has


already lapsed and no
appeal is perfected.

Discretionary upon the


court; there is inquiry
on whether there is
GOOD REASON for
execution,

court PROVIDED there

Ministerial duty of the


are no supervening
events.

Execution Pending Appeal


By the Appellate Gourt
It can order the execution of judgment pending
appeal for good reasons.
By the Trial Court

An award for actual and

compensatory
damages may be ordered executed pending

appeal, but not

an award for moral

or

exemplary damages.

Ratio: Moral and exemplary damages are


dependent on the outcome of the appeal.
While the amounts of actual damages are
fixed and certain (Radio Communications of
the Phils., lnc. v. Lantin, G.R. No. L-59311,
January 31, 1985).

SECTION

3. STAY OF

DISCRETIONARY

EXECUTION

The party against whom an execution


directed may

is

fi[,-_

May also do so in the exercise of its residual


jurisdiction under Rule 41 and 42.

Grounds:

1. lnsolvency of the judgment debtor; and


2. Wastage of asset by judgment debtor.
The court may, in its discretion, order an
execution before the expiration of the time

within which to appeat, pROV|DED:


1. There is a motion for execution filed by the
winning party;
There is notice of said motion to the
adverse party; and
There are good reasons stated in a special
order after due hearing.

2.
3.

is NOT

77

REMEDIAL LAW
CIVIL PROCEDURE
Exceptions:
1. When the terms of the judgment are not

2.

very clear; and

When the order of execution varies with

the tenor of the judgment.

SECTION 4. JUDGMENTS NOT STAYED BY

APPEAL

Exceptions: lnstances when judgment


immediately executory: 0RASO)
lnjunction;

declared

to be

favorable to the ptaintiff (Sec- 19 Rute 70).

The REASON for the non-stay of judgment for

is because support is immediately


needed and its delay may unduly prejudice the
one in need of it. .
support

Note: The rule on immediate execution of

judgment in an injunction case does not apply

judgment in an action for prohib'ition


(Embroidery & Apparet Controt Board v.
Cloribel, June 2A 1967).

SECTION

5.

DORMANT judgment

o A revived judgment

is a new judgment
thus another five or ten (5/10) - year
period lo execute and revive is given the

The five (5) - year period is to be counted not


from the date the judgment became final in the
sense that no appeal could be taken therefrom
but when it became executory in the sense
that it could already be enforced (Tan Ching Ji
v. Mapalo, G.R. No. 21933, Feb.22, 1971).
SEC.6 DOES NOT APPLY IN:
1.

Judgments for support;

2.

Contempt Orders in unauthorized reentry


on the land by an ejected defendant;
lssuance of Writs of Possession; and
Special Proceedings (i.e. land registration
cases)

3.

4.

EFFECT OF REVERSAL OF

lf reversed totally or partially, or annulled (Rr,r/e


47), on appeal or otherwise, the trial court
may, on motion, issue orders of restitution or
reparation of damages as equity and justice
may warrant under the circumstances.

6. EXECUTION BY MOTION

INDEPENDENT ACTION

OR

Modes of Enforcement
1. By motion within S years from date of its
entry;

2. By

independent action

for revival of

judgment after five (5) years from entry


AND before it is barred by statute of

is ten (10i years from


of Civit Code
is a person al one and not

limitations which

entry under Arf. 1144 (3)

(This action

quasiin rem.).

Note: The independent action

to

revive

judgment will not necessa;ily be filed


with the
78

not

Five (5) - year period may be extended if


delay is traceable to the f;autt of the

EXECUTED JUDGMENT

SECTION

is one that was

executed within five (5) years.

party. That second revived judgment can


again be enforced under Sec. 6.

ordered by the trial court. e.g. A judgment


in forcible entry or untawful detaineiwhen

to_

judgment debtor.

is

immediately executory unless otherwise

venue in Rule 4.

Rule: Judgment is stayed by appeat

1.
2. leceivership;
3. {ccounting;
4. $upport;and
5. Such gther judgments

same court that decided the case. lt shalt be


filed in the RTC as one incapable of pecuniary
estimation. lt must also satisfo requirements of

It is canied out through


the filing of a motion in

court.Assumes that there is no


execution within the first
five (5) years.

Assumes that a
judgment is executed
within the first five (5)

$sn Eels Oolleqe of fub


2011 CENTRALIZED BAR OPERATIONS

B. ln case of death of

JUDGMENT

The sheriff can validJy levy any property of

disposed of for value but not exempt from


execution. The judgment obligor has the
option to choose which property to levy
upon.
lf he does not exercise the option, the
officer shall FIRST levy on the personal
properties, if any, and then on the real
properties if the personal properties are

OBLIGOR

1.

BEFORE LEW:
Execution will issue if the action is
for the recovery of real or personal
property or any lien thereon.
Execution will NOT issue if the
action is for the recovery of a sum
of money. ln this situation, the

o
.

judgment obligee should file a


claim against the estate of the
judgment obligor under Rule 86.

2.

'
o

AFTER LEVY

valid levy, the property is


already separated from the estate of the
deceased and is deemed tN CUSTODIA
LEGlS.

SECTION

8.

ISSUANCE, FORM AND


CONTENTS OFA WRIT OF EXECUTION

.
.

Note: Appeal is the remedy for an order


DENYING the issuance of a writ of execution,
However, an order GRANTING the issuance
of a writ of execution of a final judgment is not
appealable under Ru/e 41; lhe remedy is to file
an appropriate special civil action under Rule
65.

SECTION 9- EXECUTION OF JUDGMENTS


FOR MONEY, HOW ENFORCED

lf Award is for Payment of Money:

The judgment obligor shail pay in cash, or


bertified bank ;heck payable to the judgment

or any other form of

to

answer for the judgment

(Sec 9[b]).
Real or personal property or any interest in
either may be levied upon in like manner

attachment.
Real Propefi: by filing with the Register of
Deeds a copy of the order together with
the description of the property and a notice
that it is attached (Secfion 7(a) Rule 57).
Personal Property: lf capable of. manual
delivery, by taking and safely keeping it in'
the custody of the sheriff after isuuing the
conesponding receipt therefor (Secfibn
7(b) Rule 57).

Garnishment
It is an act of appropriation by the court when
the property of debtor is in the hands of a third
person.

A specie of attachment for reaching

The sheriff may levy on debts due the


judgrnent obligor and other credits,

any
property or credits pertaining or payable to
a judgment debtor.

including bank deposits, financial interests,


royalties, commissions and other personal
property not capable of manual delivery in
the possession or control of third parties

1. lmmediate payment on demand;


2. Satisfaction by levy;
3. Garnishment of debts and credits.
obligee

insufficient

be

and with like effect as under a writ of

Execution will issue in any case.

Ratio: After

the judgment obligor which may

(Sec.

payment

acceptable to the obligee (Sec 9[a/).

Levy

It is an act by which an officer sets apart or


a part of the whole property of
the judgment debtor for purposes of the
appropriates

execution sale.

Levy is a pre-requisite to the auction sale. ln


order that an execution sale may be valid,

there must be a previous valid levy. A sale not

a valid levy is void and the


purchaser acquires no title. (Valenzuela vs. De
Aguilar, L-18083-84, May 31, 1963)
preceded by

79

REMEDIAL LAW
CIVIL PROCEDURE
SECTION 10. EXECUTION OF JUDGMENTS
FOR SPECIFIC ACT

1.

the judgment shall be attached to the writ.

5.

Conveyance, delivery of deeds, or other


specific acts, vesting tiile;
Sale of real or personal property;
Delivery or restitution of real property;
Removal of improvements on property
subject of execution;
Delivery of personal property.

A.

lf the party REFUSES TO VACATE THE

2.
3.
4.

PROPERTY:

The remedy is NOT CONTEMpT. The


Sheriff must oust the party. But if
demolition is involved, there must be a
specialorder.

B.

lf the party REFUSES TO DELTVER:

A writ of execution direciing the sheriff to


cause the defendant to vacate is in the
nature of a habere facias possessionern
and authorizes the sheriff to break open
the premises where there is no occupant
therein (Arcadio v. ytagan, A.C. No. 2754,
July 30, 1986).

C.

judgments for specific act, a certified copy of

When the party REFUSES TO COMpLy:


.The court can appoint some other person
at the expense of the disobedieni party
and the act done shall have the same
effect as if the required party performed it.

The writ of execution shall be served upon the


party required to obey the same and such
party may be punished for CONTEMPT if he
disobeys.

Note: A specialjudgment may be enforced by


contempt if the defendant refuses to comply

with the judgment. But if it is an ordinary


judgment and the defendant refuses to
comply, it is not a ground for contempt.

SECTION 12. EFFECT

OF LEVY ON

EXECUTION AS TO THIRD PERSONS

The levy on execution creates a lien in favor of


the judgment obligee over the right, title and

in

of the judgment obligor such


property at the time of the levy, subjec-t to liens
and encumbrances then existing.
interest

SECTION

{3.

PROPERTY EXEMPT FROM

EXECUTION

EXCEPT as othenrise expressly provided by


law, the following property, and no other, shall
be exempt from execution:

1.

The judgment obligor's famity home as


provided by law, or the homestead in
which he resides, and land necessarily
used in connection therewith;

General Rute: The judgment debtor CANNOT


be
.cited in contempt of court. Generally,

2.

Ordinary tools and implements personally


used by him in his trade, employment, or

judgment.

3.

Three horses, or three cows, or three

contempt

is not a

remedy

to

enforce a

Exceptions:
1. Refusal

^
2.

to perform a particular act or


Special Judgments under Sec. 11 where
he may be cited in contempt;and
ln case of the provisio-nal remedy of
support,pendente lite under Ru/e 6t; the
judgment debtor may stilt be cited for
contempt even

if the

decision

is not

livelihood;
carabaos, or other beasts of burden, such
judgment obligor may select
necessarily used by him in his ordinary
occupation;

as the

4.

His necessary clothing and articles for

specialjudgment and requires the latter to

pay money.

SECTION 11. EXECUTION OF SPECIAL

JUDGMENTS

Specialjudgment is one which can only be


complied yit! by the judgment obiigor
oecause of his personal qualifications -or
circumstances.

When judgment requires the performance of


any act other than judgment for money and
80

other

not

5sr

Seta Gollegr of {.sb

2O11 CENTRALIZED BAR OPERATIONS

selected

lawful use of which he earns his livelihood'

Filipino, or any major regional language


published, edited and circulated or, in the

So much of the salaries, wages, or"


personal services within the

preceding the tevy as are necessary for


10. Monies, benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance;
11.

to receive legal support, or


or property obtained as such

The right
money

support, or any pension or gratuity from

general

circulation in the province or city).

months

the support of his family;


Lettered gravestones;

English,

absence thereof, having

earnings of the judgment obligor for his

9.

by raffle (whether in

pesos owned by a fisherman and by the

Note: lN ALL CASES, a written notice of the


sale shall be given to the judgment obligor, at
least three (3) days before the sale, except as
provided in par (a,) hereof where notice shall
be given at any time before the sale.

SECTION 16.

PROCEEDINGS WHERE
PROPERTY CLAIMED BY THIRD PERSON

the Government; and

12. Properties specially exempted by law.

Remedies of a third-party claimant


1. Summary hearing before the court which

But no article or species of property mentioned

in this section shall be exempt from execution


issued upon a judgment recovered for its price

or upon a

judgment

of

foreclosure

of

mortgage hereon.

SECTION 14. RETURN OF THE WRIT OF


EXECUTION

The lifetime of such writ corresponds to the


period within which the judgment may be
enforced by motion, that is, within 5 years from
entry thereof.

SECTION

15.

NOTICE

OF SALE

2.
3.

4.

authorized the execution;

TERCERIA or third-party claim filed with


the sheriff;
Action for damages on the bond posted by
judgment creditors, or
lndependent reivindicatory action.
The remedies are cumulative and
may be resorted to by the third party
or
claimant independently
separately from the others.

of

lf the winning party files a bond, it is


only then that the sheriff can take the
properly in his possession. lF THERE

lS NO

OF

BOND,

the sale

cannot

proceed.

PROPERTY ON EXECUTION

Notice Requirement

A.

lf perishable property:
By posting written notice of the time and
place of the sale in three (3) public places,
preferably in conspicuous areas of the
municipal or city hall, post office and public
market where the sale is to take place, for
such time
may
reasonable,
considering the character and condition of
the property;

as

Note: The officer shall not be liable for


damages to any third-party claimant if such
bond is filed for the taking or keeping of the
property.

However, the judgment obligee can claim


damages against

third-party claimant who

be

B. Other personal property:


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

C. lf real property:
By posting for 20 days in three (3) pubtic
places particularly describing the property

and stating where the property is to be


sold, and if the assessed value of the

property exceeds P50,000, by publishing a

copy of the notice once a week for two (2)


consecutive weeks in one (1) newspaper

81

REMEDIAL

tAW

CIVIL PROCEDURE

SECTION 17. PENALTY FOR SELLING


WTHOUT NOTICE, OR REMOVING OR
DEFACING NOTICE
Title acquired after the

The following are liable for actual and

expiration of the
redemption period
when final deed of
conveyance is
executd

punitive damages:

'1. An officer selling without the

2.

notice
prescribed by Sec. 15;' and
A person willfully removing or defacing the

notice posted, if done before the sale, or

before the satisfaction

of judgment

if

satisfied before the sale.


SECTION 18. NO SALE IF JUDGMENT AND
COSTS PAID

At any time before the sale of property

on

execution, the judgment obligor may prevent


the sale BY PAYING the amount required by
the execution and the costs that have been

SECTION 20. REFUSAL OF PURCHASER


TO PAY
The officer may AGAIN SELL the property to
the highest bidder and shall not be responsible
for any loss occasioned thereby.
But the court may order the refusing purchaser

to pay to the court the amount of such loss,


with costs, and may punish him for contempt if

incurred therein.

he disobeys the order.

SECTION ,l9. HOW PROPERry SOLD ON


EXECUTION; WHO MAY DTRECT MANNER
AND ORDER OF SALE

SECTION

All sales of property under execution must be


made:
1. At public auction;
To the highest bidder;

2.
3.

notice.

After sufficient property has been sold


to satisfy the execution, NO more shall
be sold and any EXCESS shall be

promptly delivered

obligor or

representative,

to the judgment

his

authorized
unless otherwise

directed by the judgment or order of


the court.

Need not be confirmed


by the court

be confirmed by
the court in order to
divest the rights in the
property of the parties
and to vest the rights in
There is no riqht of

redemption, exceptby
Right of redemption
exists

82

21. JUDGMENT

OBLTGEE AS

PURCHASER

When the purchaser is the judgment obligee,

and no third party claim has been filed, he


need not pay the amount of the bid if it does
NOT exceed the amount of his judgment. lf it
does, he shall pay only the excess.

To start at the exact time fixed in the

Title acquired upon the


confirmation and
registration of the
foreclosure sale

the mortgagor where


the mortgagee is a
bank or a banking
institution

SECTION 22. ADJOURNMENT OF SALE

lF with written consent of the judgment

obligor and obligee: To any date and time


agreed upon.
lF without such agreement: From day to

day if it becomes necessary to do so for


lack of time.
SECTION
PURCHASER

23.

CONVEYANCE TO
OF PERSONAL PROPERTY

9en Fele Gollege

of

Ldo

2011 CENTRALIZED BAR OPERATIONS


SECTION 25. CONVEYANCE OF REAL
PROPERTY; CERTIFICATE THEREOF
GIVEN TO PURCHASER AND FILED WTH

the judgment debtor of any further rights to the


property.

REGISTRY OF DEEDS

Right of Redemption:

1.

CONTENTS of the certificate of sale:


1. A particular description of the real property

2.

sold;

2. The price paid for each distinct tot or


parcel;
3. The whole price paid by him; and
4. A statement that the right of redemption
expires one (1) year from the date of the
registration of the certificate of sale.

v.

NONE; Sale

Real Property

-'

There

is a right of

1.

2.

Judgment obligor, or his successor rn


interest, in the whole or any part of the
property;OR
Redemptioner who is a creditor having a

lien by virtue

of an ATTACHMENT

JUDGMENT oT MORTGAGE on the


property sold, SUBSEQUENT to the lien

is

under which the pi'operty was sold.

Sunico, G.R. No. 8241, Sept.

May the validity


attacked?

General Rule:

of an auction sale be

Note: lf his lien is PRIOR to the judgment, he


is not a redemptioner because his interests in
his lien are fully protected (relate to'Section
12).

NO

of

because
the
presumption of regular performance of duty by
the sheriff.

When can redemption be made (Sec.28):

Exception:

B.

1.

is

Who may redeem (Sec.27):

Confirmation of the sale is not needed


unlike in judicial foreclosure of mortgage. The
certificate
sale
merely provisional

of

Property

redemption.

Note:

(Raymundo
27, 1913).

Personal

ABSOLUTE.

When from the nature of the irregularity or


resulted
therefrom (Navano vs. Navarro, 76 phil.

from intrinsic facts, injury


122).

2. When the price obtained is

shockingly
inadequate and it is shown that a better
price can be obtained at a resale (Barrozo
vs. Macadaeg, 83 Phit. 378).

Exception to the Exception: The rule that


you can question the validity of the auction
gle if the price obtained is shockingly
inadequate does not apply when the property

sold is realproperty.

SECTION 26. CERTIFICATE

A.

BY THE JUDGMENT OBLIGOR:

Within one (1) year from the date of


registration of the certificate of sale.
BY THE REDEMPTIONER:

Within one (1) year from the date of


registration of the certificate of sale if he is
the first redemptioner; or

Within sixty (60) days from the last


redemption, if he be a subsequent
redemptioner, provided that the judgment
debtor has not exercised his right of
redemption.

BUT, in all cases the judgment obligor shall


(1) year from the
to redeem

have the entire

date of

*
OF

SALE

WHERE PROPERW CLAIMED BY THIRD

ffiffi

&*eaW{

PERSON

The certificate of sale to be issued shall make


express mention of the existence of such thirdparty claim.

not
may,

SECTIONS 27 &28= REDEMpTtoN

This right of redemption is transferable and


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

83

REMEDIAL LAW
CIVIL PROCEDURE
Redemption Price (Sec.28)

A.

8y The Judgment Obligor:

1. Purchase price;
2. 1% interest thereon, up to the time of
redemption;
3. Any amount of assessments or taxes

4.

TO WHOiI

Redemption

thereon after purchase and interest on


such last named amount at the same

foreclosure sale by the judgment mortgagor


eliminates from his title thereto the lien created
by the levy on attachment or the registration of
the mortgage thereon (Javellana v. Mirasol,
G.R. No. L-14881, February 5,1920).

rate; and

lF the purchaser be also a creditor


having a prior lien to that of the

made, the amount of such other lien,


with interest.
By The Redemptioner:
1. Amount paid on the last redemption;
2% interest thereon;
3. Any amount of assessments or taxes
which the last redemptioner may have
paid thereon after redemption by nim
with interest on such last-named
amount; and
Amount of any liens held by said last
redemptioner prior to his own, with
interest.

2.

4.

'

RECORDED THEREUPON;

PAYMENTS ON REDEMPTION MADE

which the purchaser may have paid

redemptioner, other than the judgment


under which such purchase was

B.

SECTION 29. EFFECT OF REDEMPTION BY

JUDGMENT OBLIGOR, AND A


CERTIFICATE TO BE DELIVERED AND

The redemption price for subsequent

redemption shall

SECTION

30.

PROOF REQUIRED

OF

Redemptioner must produce to the officer, or


person from whom he seeks to redeem, and
serve with his notice to the officer:
1. A copy of the judgment or final order
certified by the clerk of court wherein the
judgment or final order is entered; OR
2. lf he redeems upon a mortgage or other
lien, a memorandum of the record thereof,
certified by the RD; OR
3. An original or certified copy of any

assignment necessary

4.

to establish his

claim;OR
An affidavit executed by him or his agent
showing the amount then actually due on
the lien.

SECTION

31.

MANNER

PREMISES PENDING

May redemption be paid in any form other


than cash?

WASTE RESTRAINED

YES. The rule is construed liberally in allowing


redemption (to aid rather than def6at the rightJ

SECTION

and it has been allowed in the case ol a


cashieds check, certified bank checks and

property sold under a

REDEMPTION

be the

same
(redemption price becomes higher and
higher).

of the

OF

USING
REDEMPTION;

32. RENTS, EARNINGS AND


OF PROPERTY PENDING

INCOME

REDEMPTION

even checks.

Rights of the judgment debtor: (RE-UNUC)

The offer to redeem must be accompanied


with a bona fide tender or delivery of the

2.

redemption price.

HOWEVER, a formal offer to redeem with a


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

Note: The periods for redemption in Sec. 2g


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

84

1.

Remain in possession of the property;

5sn Prtu Gollege of {lh


201 1 CENTRALIZED BAR OPERATIONS
SECTION 33. DEED AND POSSESSION TO

BE GIVEN AT

EXPIRATION

REDEMPTION PERIOD;

BY

2.

OF

WHOM

EXECUTED OR GIVEN

The

PURCHASER

is

entitled

to

ls evicted due to:

a. lrregularities in the proceedings


concerning the sale; or
b. Judgment has been reversed or set
aside; or
c. The property sold was exempt from
execution; or
d. A third person has vindicated his claim

CONVEYANCE AND POSSESSION of the


property if there is no redemption made within
1 year from date of the registration of the
certificate of sale, or LAST REDEMPTIONER
whenever 60 days have elapsed and no other

When the sale was not effective under the

redemption has been made.

circumstances

to the propefi.

in this section, the

purchaser may:
He is substituted to and acquires all the rights,
title, interest and claim of the judgment obligor
to the property at the time of levy.

Two (21 documents which the sheriff


executes in case of real property:

1.

2.

CERTIFICATE OF SALE. After the auction


sale, he will execute in your favor the
certificate of sale under Section 25, by the
time you register that, you start counting
the one year. "
DEED OF CONVEYANCE. tf after one (1)

is no redemption, a deed of

year there

conveyance is executed. (Section 33)

The deed of conveyance is what operates


to transfer to the purchaser whatever

rights the judgment debtor had in the


property. The certificate of sale after

execution sale merely is a memorial of the

fact of sale and does not operate as a

conveyance.

The purchaser acquires no better right

1.

File a motion in the same action or file a

2.
3.

judgment creditor the price paid;


File a motion for revival of judgment in his
name against the judgment debtor; or
Bring an action to recover possession of

the
property executed prior to the levy and no
longer has an interest in the property, the
execution purchaser acquires no right
(Pacheco
CA, G.R. No. L-48689,

v.

to

recover from the

property.

SECTION 35. RIGHT TO CONTRIBUTION


OR REIMBURSEMENT

Contribution and reimbursement may be


obtained in a separate action, unless crossclaims have been filed and adjudicated in the
same action, in which case, execution may
issue to compel contribution or reimbursement
(Feia, Civil Procedure Annotated, Vol. 2, 2001
Ed., p. 108}
Remedies of the Judgment Greditor in aid
of execution or if Judgment is not fully
Satisfied

1.

than what the judgment debtor had in the


property levied upon" Thus, if the judgment

debtor had already transferred

separate action

2.

lf the execution is retumed unsatisfied, he

may cause examination of the iudgment


debtor as to his property and income'
(Sec. 36)

He may cause exalnination of the debtor

of

the

as to any debt
of the

August31,1987).
When a third person is in possession: The
procedure is for the court to order a hearing

and determine the nature of such adverse

:in
the
the

possession.

34. RECOVERY OF PRICE IF


SALE lS NOT EFFECTIVE; REVTVAL OF
SECTION

JUDGMENT
The purchaser may necover the purehase
price when:
1. The purchaser or his successor-in-interest
FAILS TO RECOVER pOSSESSTON of
the property; or

of the
sufficient

85

REMEDIAL !.AW
CIVIL PROCEDURE

7.

8.

exempt from execution or forbid a transfer


or disposition or interference with such
property. (See.41)
lf the court finds that the judgment debtor
has an ascertainable interest
real
property either as mortgagor, mortgagee,
or otherwise, and his interest can be
ascertained without controversy, the court
may order the sale of such interest. (Sec.

in

property, or denies the debt, the court may


authorize the judgment-creditor to institute
an action to recover the property, forbid its
transfer and may punish disobedience for
contempt. (Sec.43)

The inalterability of

SEGTION 46. WHEN PRINCIPAL BOUND BY


JUDGMENT AGAINST SURETY

The principal is bound by the same jpdgment


from the time he has notice of the action or
proceeding and has been given an opporlunity
at the surety's request, to join the defense.

SECTION 47. EFFECT OF JUDGIUENT OR


FINAL ORDERS

This refers to judgments which are considered


as conclusive and may be rebutted direcfly by
means of relief from judgment or annulment of

judgment

or

indirecily

by offering them

in

evidence under the parole evidence rule.

lt

Public Policy Principle:

final and executory

judgment. The decisions of the court must be


immutable at some definite period of time, no

matter how erroneous a judgment may be.


Otherwise, there would be no end to litigation.
Res Judicata (A Matter Adjudged)

It is a rule that a finaljudgment rendered by a


court of competent jurisdiction on the merits is
conclusive as to the rights of the parties and
their privies, and, as to them, constitutes an
absolute bar to a subsequent action involving
the same claim, demand or causes of action
(Black's Law Dietionary).

Requisites:

1. A FINAL judgment or order;

2.
3.
4.

the subject matter


and the parties by the court rendering it;
Judgment UPON THE MERITS;
Between the two cases:
There is identi$ of PARTIES; and
ldentity of SUBJECT MATTER; and
ldentity of CAUSE OF ACTION.
JURISDICTION over

a.
b.
c.

THERE IS IDENTIry OT CNUSC OF ACTION


when the two actions are based on the same
delict or wrong committed by the defendant
even if the remedies are different.

Two Parts

Res Judicata * also known as Bar by


Former Judgment or Direct Estoppel by
Judgment. lt covers paragraphs (a) and
(b) of Section 47.

The decision is
conclusive upon title of
the thing, the will or
administration or the
condition, status or
relationship of the
person.

of

paragraph (c).

SECTION 45. ENTRY OF SATISFACTION


I'IIITH OR WTHOUT ADMISSION

The judgment or final


order is conclusive
between parties and
their successors in
interest, litigating for
the same thing and
under the same title
and in the same
caDacitv.

86

of Judgment also
known as Estoppel by Verdict, or Estoppel
by Record, or Collateral Estoppel by
Judgment or Preclusion of lssues or Rule
covers
Auter Action Pendant.
Conclusiveness

lf the person alleged to have the property


of the judgment debtor or be indebted to

SECTION 44. ENTRY OF SATISFACTION


OF JUDGi,IENT BY CLERK OF COURT

1.

2.

42)

him, claims an adverse interest in the

e.9. accrcn
reinvindicatoria

e.g. Iand registration


cases

5en Fele

@ollege of

Lslr

2011 CENTRALIZED BAR OPERATIONS


Under the doctrine of res judicafa, no matter
how erroneous a judgment may be, once it

SECTION

48. EFFECT OF

FOREIGN

JUDGMENT OR FINAL ORDERS

becomes final, it cannot be corrected.

Gonclusiveness of judgment
The issues actually and directly resolved in a
former suit cannot again be raised in any

future case between the same

parties

involving a different cause of action.

r lt has the effect of preclusion only of


issues.
. The parties in both actions may be the
same but the causes of action are

Public Policy Principle: A judgment by a


court is enforceable only within its territorial
jurisdiction.

Effect of Foreign Judgments

Provided that
jurisdiction:

1. ln

2.

different.

the foreign tribunal

case of judgment against

had

specific

thing, the judgment is conclusive upon the


title to the thing; or
ln case of a judgment against a person,
the judgmenlis presurnptive evidence of a
right as between the parties and their
successors-in-interest by a subsequent
title.

There is identity of
parties, subject matter
and causes of action.

There is ONLY
identity of PARTIES
AND SUBJECT
MATTER.

The first judgment


constitutes as an
ABSOLUTE BAR TO
ALL MAfiERS direcfly
adjudged and those
that might have been
adjudged.

The first judgment is


conclusive only as to
matters directly
adjudged and actually
litigated in the first
action. Second action
can be prosecuted.

It has the effect of


preclusion of claims.

It has the effect of


preclusion only of
issues.

'

Doctrine of law of the case - according to


this principle, whatever is once irrevocably
established as the controlling legal rule or
decision between the same parties in the case

continues to be the law of the case whether


correct on general principles or not, so long as

the facts on which such decision \ /as

There are two ways of giving effect to a foreign

judgment (a) an ordinary action to enforce the


foreign judgment may be filed in court or (b) it

may be pleaded in an answer or a motion to


dismiss (Herrera, Remedial Law, Vol. ll, 2007
Ed., p. 5*31).

Note: ln BOTH instances, the judgment may


be repelled by evidence Of (JN CFC)
Want of iurisdiction;
Want of notice;
Qollusion;
Fraud; or
Qlear mistake of law or fact.

a.
b.
c.
d.
e.

Three Modes of Appeal:


1. Ordinary Appeal (Rule 40 and 41)

a.

Notice on appeal

predicated continue to be the facts of the case


before the court. (RCPI vs. Coutt of Appeats,
G.R. /Vo. 139763, Aprit26, 2006)

Note: This rule DOES NOT AppLy to


resolutions rendered in connection with the
case wherein no rationale has been
expounded on the merits of that action
(Jarantilla v. CA, G.R. No. 80194, Mar. 21,

is

ap#&#ffiffiffip;s612

1ege).

poses

Sfare Decrsis
It means the decision of the court should stand
as precedents for future guidance.

judgment

to

the

87

REMEDIAL LAW
CIVIL PROCEDURE
Note: Only FlNALjudgments or orders can be
appealed as distinguished from interlocutory
judgments ororderswhich are not appealable.

motion for reconsideration (Neypes vs.

CA,

G.R. No. 141524, September 14, 2005).

Ratio and Basis:


Pursuant to its sole prerogative to amend

procedural rules,

Ordinary Appeal is an appeal by notice of


appeal from a judgment or final order of a

provided

part of due process.

lt is merely

Aprill7,2002).

Note: A

question that was never raised in

the court below cannot be allowed to be raised


for the first time on appeal, without offending
basic rules of fair play, justice and due process

ys. Sps

(Villanueva

139436, January

Satvador, G.R
No.
*

25,2006).

SECTION 1. WHERE TO APPEAL

Appeal to the RTG


Mode of Appieat - Notice

of Appeal

fifteen (15) days from receipt of decision.

cases.
The fresh period shall apply to:
Rule 40

1.
2. Rule 41
3. Rule 42
4. Rule 43
5. Rule 45

Note: No motion for extension of time to file a


motion for new trial or reconsideration shall be
allowed. But if the appeal requires the filing of
a record on appeal, a motion for extension to
submit record on appeal is allowed.
SECTION 3. HOW TO APPEAL

within

A.

Afier an appeal to the RTC has

been
perfected, the MTC loses its jurisdiction over

the judgment should be fited with the RTC.

Note: The

Rule on Summary procedure no

ij

on appeal.

SECTION 2. WHEN TO APPEAL

1. Within 15 days after notice of judgment or

2.

final order;

Where

record on appeal

is

required,

with.in 30 days from notice of judgment or

final order by filing a notice of apleal and


a record on appeal.

Note: Sec. 2

period

of

Rule 40 provides that the


intem.rpted by a

of appeal shalt be

timely motion for new trial or reconsideration.

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


litigant may either fite his notice oi aipeat
within 15 days from receipt of the niC,s
decision or file it within 15 days from receiptof
the order denying his motion for new trial or
88

By Notice of Appeal:

1.

2.

the case and any motion for the execution of

longer applies when the case

be

any final order or resolution) and to afford


litigants fair opportunity to appeal their

statutory privilege and may be exercised


only in the manner and in accordance with
the provisions of the law (producers Bank
of the Philippines ys. CA, GR No 126620,

in the Rules of Court, to

the motion for new trial dr motion for


reconsideration (whether full or partial or

The right to appeal is not a natural right or

it

counted from receipt of the order denying

lower court on questions of fact and law.

the SC deems

necessary to change the afore-stated rule


in order to standardize the appeal periods

'

File a notice of appeal with the trial


court;
The notice of appeal must indicate:
Parties;
Judgment or final order appealed
from;
Material date showing timeliness
of appeal.
A copy served on the adverse party;
and

a.
b.
c.

3.
4- Pffifeesand

9en Fels Gollege ot lxnn


2011 CENTRALIZED BAR OPERATIONS
APPEAL FROITIIMTC TO RTC
Notice and record on
appeal are filed with
the court of origin.

The case was decided


by the RTC pursuant

to its original
jurisdiction. The case
was originally filed in

the

Appeai decision of MTC by filing notice of


appeal and pay within 15 days from
receipt of judgment.

The case was decided


by the RTC pursuant
to its appellate
jurisdietion

15 days from perfection of appeal, MTC

RTC.

clerk transmits record to RTC

MaterialData Rule

The notice of appeal must also


accompanied by

a statement of the

be

Notice to parties that an appeal is being


taken from the decision of MTC

material
dates showing the timeliness of the appeal.

SECTION

4.

PERFECTION

EFFECT THEREOF

OF

APPEAL;
Within 15 days from notice of appeal:

r Appellant submits memorandum to the


Governed by the provisions of Section 9, Rule
41.

of appellate court

15 days from receipt of

appellants'

memnranrfirm

SEGTION 5. APPELLATE COURT DOCKET


AND OTHER LAWFUL FEES

Payment

RTC

Appellee files his own memorandum

lf uncontested,
judgment is
entered in the

docket fees is

jurisdictional. Failure to do so is a ground for


dismissal of appeal (Sec.1c Rute S0).

book of entries.

Any party may


appeal by filing a
petition for
review with the

cA.

However, non-payment of docket fees does


not automatically result in dismissal of appeal,
the dismissal being discretionary in the court if

there are justifications

for

non-payment

(Fontanarvs. Bonsubre, G.R. No. 56315, Nov.


25, 1986).

SEGTION

6. DUTY OF THE CLERK

SECTION

Within 15 days fom the perfection of the

PROCEDURE

IN

THE

1.

Upon receipt of the complete record or

2.

record on appeal, clerk of court of the RTC


shall notify the parties of such fact;
Within 15 days from such notice, it shall be
the duty of the appellant to submit a

OF

COURT

7,

REGIONAL TRIAL COURT

appeal, the clerk of court or the branch clerk of


court of the lower court shall transmit the
original record or the record on appeal,
together with the transcripts and exhibits, to
the appellate courU RTC.

89

REMEDIAL LAW
CIVIT PROCEDURE

SECTION

8.

APPEAL FROM ORDERS


DISMISSING CASE WITHOUT TRIAL; LACK
OF JURISDICTION

A, lf the lower court dismissed the case

without trial on the merits, RTC MAy:


1. Affirm, if ground of dismissal is lack of
jurisdiciion over the subject matter, the
RTC, if it has jurisdiction, shafi TRy
the case on the merits as if the case

2.

was originally filed therein;

Gases wherc multiple appeals

L
2.
3.
4.
5.

in which case, it shall


remand the case for further
Reverce,

over the subject matter:


. RTC shall not dismiss the case

has original jurisdiction, but

if it
shall

DECIDE the case, and shail ADMTT


amended pleadings or additional
evidence.

SECTION 9. APPLICABILITY OF RULE 4{

By virtue of this provision, the inferior courts


also exercise residual jur.isdiction in the same
manner provided under par. 5 Sec. g of Rute
41.

Specialproceedings;
Actions for recovery of property with
accounting;

Actions for partition of property with


accounting;

Special civil actions

of

eminent

domain (expropriation) ;

Special civil actions for foreclosure of

mortgage. (Roman Catholic


of Manita v. CA, 2Sg

Archbishop

scRA 186)

proceedings.

B. lf the case was tried on the merits by


the lower court without jurisdiction

ane

allowed:

SECTION 1. SUBJECT OF APPEAL

Appealable Cases:
1. Judgments or final orders that completely

2.

disposes of the case;

A particular matter in a judgment declared


by the Rules to be appealable.

Non-Appealable Gases (PtDSES-D)


1. An order denying a getition for relief or any

similar motion seeking relief

from

judgment;
An lnterlocutory order;

2.
3. An order glisallowing or dismissing an
appeal;
4. An order denying a motion to get aside a
judgment by consent, con6ssion or
compromise on the ground of faud,
mistake or duress, or any other ground

Note: As amended by A.M. No. 07_7_12 SC,


effective December 27 ,2OOT
Three modes of appeal from decisions of

the RTC

1.

2.
3.

Or(inary appeal or appeal by writ of error,


where judgment was rendered in a civil or
criminal action by the RTC in the exercise
of original jurisdiction;

5.

o.

vitiating consent;
An order of gxecution;

A judgment or final order for or against


one or more of several parties or in
geparate claims, counterclaims, crossclaims and third parg complaints, while
the main case is pending, unless the court
allows an appealtherefrom; and

An order glismissing an action

without

Petition for review, where judgment was


rendered by the RTC in the exercise of

appellate jurisdiction; and

Petition

for review on ceftiorari to

Supreme Court.

the

##*q-ffi4xffi mp.f.Akru-

mode of appeat, govemed by Rute


}e .nrs!
41,
is taken to the Court of Appeils on
questions of fact or mixed questions of fact
and l"y, _T!e second mode of appeat,
covered

by Rute 42, is brought to the Cdurt of


Appeals on questions of faci of law, or mixed
questions of fact and law. The third mode
of
appeal, provided for by Rule 45, is elevated to

the Supreme Court only on questions of law.

90

which
leave

SEn

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2O11 CENTRALIZED BAR OPERATIONS


TAKE NOTE:
The term 'finalt has two (2) possible meanings
in Civil Procedure:
1. Flnal in the sense that is already
executory and that happens if there is no

it

appeal. And that

2.

is for purposes

of

applying rule 39 on execution.

Final in the sense that it is not merely


interlocutory because it completely
disposes of the case or a particular matter
therein and there is nothing more for the
court to do after its rendition (Bairan vs.
Tan Sui Lay, L-19460, Dec. 28, 1966).

File a notie of
appeal or a
record on
appeal with
the court of
origin (RTC)
and give a
copy to the
adverse party.

TEST for determining whether a judgment

or order is final or interlocutory:

Does lf

leave something to be done in the triat court


with respect to the merits of the case? lf it
does, it is interlocutory, hence, you cannot
appeal yet;
does not, is final and
therefore you can appeal. (Reyes vs. De Leon,
L-3720, June 24, 1952)

if it

.
r

it

A judgment based on compromise is not


appealable and,is immediately executory.

This rule refers to appeals from

RTC

exercising ORIcINAL JURtSDICTION. An


appeal on pure question of law CANNOT

be taken to the CA and such improper


appeal will be dismissed pursuant to Sec.
2, Rule 50 (Regalado, F. Remediat Law
Compendium Vot 1. dn ed. p. 526).
SECTION

2.

MODES OF APPEAL

Within 15
days from the

jurisdiclion.
Appealed to
the CA.

Case is
decided by
the RTC in
the exercise
of its
appellate
iurisdiction.
Petition for
review with
the CA.

Case is
decided by the
RTC, CA, CTA
and
Sandiganbayan

days from
notice of the
decision to be
reviewed or
from the
denial of a
MR or new
trial.

notice of the

appeal and
within 30 days
for records on
appeal.

3.

PERIOD

File a verified
petition for
review on
certiorari with
the SC (RuIe
45l Pay docket
and lawful fues
and P 500 for
costs.
Submit proof of
service of a
copy to the
lower court and
adverse party.

Within 15 days
from notice of
the judgment or
order oi denial
of the MR or
new trial.

OF

ORDINARY

APPEAL
The appeal shall be taken within:

1.

2.

3.
Case is
decided by the
RTC in its
original

500 as
deposit for
costs with the
CA. Furnish
RTC and
adverse party
copy ofsuch
(Rule 42).

Within 15

judgment for
notice of

SECTION

File a verified
petition for
review with
the CA. Pay
the docket
and lawful
fees, and P

Fifteen (15) days trom notice

of

the

Thirly (30) days from notice

of

the

judgment or final order appealed from;

judgment or final order where a record on


appeal is required;

Forty-eight (48) hours from notice of the


judgment or final order appealed from in
habeas corpus cases.
DOCKET

Appealed to
the SC.

91

REMEDIAL LAW
CIVIL PROCEDURE
SECTION 6. RECORD ON AppEAL; FORM
AND CONTENTS THEREOF

'1. Full names of all the parties to the


proceedings stated in the caption of the
record;

2. lnclude the judgment or final order from


which the appeal is taken;
3. ln chronological order, copies of only such

pleadings, petitions, motions and all


interlocutory orders as are related to the
appealed judgment for the proper

4.
5.

understanding of the issue involved;


Together with such data as will show that
the appeal was perfected
time
(Material Data Rute);
Every record on appeal exceeding 20
pages must contain a suUfect index.

on

SECTION 7. APPROVAL OF RECORD ON


APPEAL
Procedure if the appeal is through a record on
appeal:
1. File record on appeal;
Appellee may file an objection within five
(5) days from his receipt thereof;
lf there is no objectionihe court may:
Approve it as presented; OR
Direct its amendment on its own or
upon the motion of the adverse party.
lf an amendment is ordered the appellant
must redraft the record within the time
ordered or if there is no time, within ten
(10) days from receipt;
Submit the record for approval with notice
on the adverse party.

2.
3.

a.
b.

4,
5.

SECTION 8. JOINT REGORD ON APPEAL

Where both parties are appellants, they may


file a joint record on appeal within the time
provided.

SECTION 9. PERFECTION OF APPEAL;


EFFECT THEREOF

Appeal is Deemed perfected


1. BY NOTTCE OF AppEAL: As to him, upon

2.

the filing of the notice of appeal in bue


time; and
BY RECORD ON AppEAL:As to him, with
respect to the subject matter thereof, upon

the approval of the record on appeal filed


in due time.

Effect of a perfected appeal

ln APPEALS By NOTTCE OF AppEAL, the

court loses jurisdiction over the case upon the


92

perfection of the appeal filed in due time and


the expiration of the time to appealof the other
parties.

ln APPEALS BY RECORD ON APPEAL, the


court loses jurisdiction only over the subject
matter thereof upon approval of the records on
appeal filed in due time and the expiration of
the time to appeal of the other parties.

Residual power of the court afier losing

jurisdiction but prior to the transmittal of the


original record or record on appeal: [O PAPAI

1.

Qrder execution pending appeal under

Rule 39, Sec.2 (motion for execution was


filed before the expiration of the period to
appeal);

2. To issue orders for the preservation of the


rights of the parties which do not involve
' matters
litigated by appeal;
3. To gpprove compromise prior to the
transmittal of the record;
4. lermit appeal by an indigent;
5.

{llow withdrawal of the appeal.

Duration of Residual Powerc

Until the records are


transmitted to the
appellate court.

Until the Court of


Appeals gives due
course to the petition.

SECTIOITI
DUTY OF THE GLERK oF
COURT OF'0.
THE LOWER COURT

Within 30 days after perfectio-n of the appeat, it


shall be the duty of the clerk of court:
1. To verify the correctness of the original
reeord or record on appeal, as the case
may be, and to make certification of its

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2011 CENTRALIZED BAR OPERATIONS


SECTION 11. TRANSCRIPT

Upon perfection of the appeal, the clerk shall


direct the stenographer concemed:

1. To attach to the record of the case 5


copies of the transcript of testimonial
evidence;

2. Transcribe such testimonial evidence;


3. Shall affix an index containing the names

SECTION

The party desiring to appeal from a decision of


rendered in the exercise of its
APPELLATE JURISDICTION may:
File a verified petition for review with the

1.

CA:

a. Within 15 days from notice of decision;


or
b. Within 15 days denial of petitione/s

testimonies are found; and

List of the exhibits and pages wherein

each appears.
SECTION 12. TRANSMITTAL

The clerk of the trial court shall transmit to the


appellate court the original record or approved
record on appeal:
Within 30 days from perfection of appeat;
Proof of payment of the appellate court
docket and other lawful fees;
Certified copy of the minutes of the

1
2.
3.
proceedings;
4. Order of approval;
5. Certificate of correctness;
6. Original documentary evidence; and
7. Original and three (3) copies of the
transcript.

TIME

the RTC

of the witnesses and pages where their

4.

1. HOw APPEAL TAKEN;

FOR FILING

Motion for New Trialor MR.

2. Pay the corresponding docket and other


lawfulfees, depositing P 500;
3. Furnish the RTC and the adverse party
with a copy of the petition.

The CA may grant an additional period of

15

days within which to file the petition for review.


No further extension shall be granted except
for the most compelling reason and in no case
to exceed 15 days.
SECTION 2. FORM AND CONTENTS

The petition shall be filed in seven (7) legible


copies, with the original copy intended for the
court being indicated and shall:

1.

State the full names of the parties to the


case;

SECTION 13. DISMISSAL OF APPEAL


Prior to the transmittal of the original record or
the record on appeal, the trial court may, mofa

proprio or on motion disiniss the appeal for:


Having been taken out of time, or
Non-payment of the docket and other
lavyfulfees within the reglementary period.

1.
2.

The requirement regarding the perfection of


the appeal within the reglementary period is

2. lndicate the specific material dates


showing that it was filed on time;
3. Set forth concisely a statement of the:
a. Matters involved;
b. lssues raised;
c. Specification of errors of facl or law, or
d.

both, allegedly commifted by the RTC;


and
Reasons or arguments relied upon for
the allowance of the appeal;

not only mandatory but jurisdictional.

Nature: This mode of appeal is not a matter of


right. lt is a matter of discretion on the part of
CA on whether or not to entedain the appeal.

93

$m

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2011 CENTRALIZED BAR OPERATIONS


14. Employees Compensation Commission;
15. Agricultural lnventions Board;
16. lnsurance Commission;
17. Philippine Atomic Energy Commission;
18. Board of lnvestments;
19. Construction lndustry Arbitration
Commission; and

20. Voluntary arbitrators authorized by law.

A party adversely affected by a

decision or
ruling of the CTA may file with the Supreme
Court a verified petition for review on certiorari
pursuant to Rute 45 (Sec. 12, RA g2g2 and
A.M. 07-7-12-SC).

No further extension shall be granted


except for the most compelling reason and
in no case shall exceed 15 days.

SECTION 5. HOW APPEAL TAKEN

1. By filing a verified petition for review in


seven (7) legible copies;
2. With proof of service of a copy thereof on
the adverse party and on the court or
agency a quo;

3. Pay to the clerk of court of CA docket and


other lawfulfees; and
4. Deposit the sum of P 500 for costs.

Note: The Court of Appeals has jurisdiction


over orders, directives and decisions of the
Offtce of the Ombudsman in administrative
disciplinary cases only. lt cannot, therefore,
review the orders, directives or decisions of
the Office of the Ombudsman in criminal and

Decision is immediately

executory; not stayed


by an appeal.
Factual findings are
conclusive upon CA if
supported by
substantial evidence.

non-administrative cases (Golangco vs. Fung,

Office of the Ombudsman, G,R.-Nos i4764'G


1

47762, October-l 2, 2006|

Findings

of fact of the agency

concemed,

when supported by substantial evidence, shall


be binding on the CA.

State the full names of the parties to the


case;
2. Set forth concisely a stalement of the facts
and issues involved and the grounds relied
upon for review;
3. Accompanied by clearly legible duplicate
originals or certified true copy of the
award, judgment, final order or resolution
appealed from;
4. Certificate of non-forum shopping; and
5. State the specific material dates showing
that it was filed on time.
1.

SECTION 2. GASES NOT COVERED

Judgments and final orders or resolutions of


the NLRC are reviewabte by the COURT OF
APPEALS in an original action for certiorari
under RuIe 65 (St Maftin Funeral Home vs.
NLRC, GR. No. 130A66, Sept.16,199B).
SECTION 3. WHERE TO APPEAL

Appeal under this Rule may be taken to the


CA within the period and in ihe manner herein

provided, whether

SECTION 6. CONTENTS OF THE PETITION

the

appeal

SECTION

7.

EFFECT OF FAILURE TO

involves

questions of fact, of law, or mixed question of


law and fact.

SECTION 4. PERIOD OF APPEAL


Fifteen (15) days from:
Notice of the award, judgment, final order
or resolution; or

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

The.CA may grant additionat 15 days only


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

petition
has

docket fee.

95

REMEDIAL LAW
CIVIL PROCEDURE
original or a legible certified copy of the entire
record of the proceeding under review.

SECTION 12. EFFECT OF APPEAL

Generat Rule: Appeal shall NOT stay the


award, judgment, final order or resolution
sought to be reviewed.

Exception: When the CA shall


otherwise upon such terms as
just.

direct

it may deem

sEcTloN 13. SUBiIilSStON FOR DECIS|ON


Similar to Secfibn 9 of Rute 42.

SECTION 7. APPELLANT'S BRIEF

It shall be filed, within FORTY-FIVE (45)


DAYS from receipt of the notice of the clerk of
court that all the evidence is attached to the
record:
his legibly
1. SEVEN (7) COPIES
printed
typewritten, mimeographed
brief; and
With proof of service of two (2) copies
thereof upon the appellee.

of

as appellant and the adverse party as the

or

2.

.
o

SECTION 1. TITLE OF CASES


ln all cases appealed to the CA under Rule 41,
the title of the case shall remain the same but
party appealing the case shall be referred to

May declare that the record and its


accompanying transcripts and exhibits are
already sufficient to decide the issues.

Failure to file appellant's brief on time is a


ground for dismissal of the appeal.
lf a motion to dismiss an appeal has been
filed, it suspends the running of the period
for filing the appellant's briel as the same
would be unnecessary should the motion
be granted.
The failure of the appellant to make
specific assignment of errors in his brief or

appellee.

page referenies to the record as re{uired


in this sec;tion is a ground for dismissal of

SECTION 2. COUNSEL AND GUARDIAN

his appeal.

Counsel and guardians ad litem in the court of


origin, shall be considered as such in the CA.

When others appear or are appointed, notice


shall be served on the adverse party and filed

SECTION 8, APPELLEE'S BRIEF


It shall be filed similar to appellant's brief upon
receipt thereof.

with the court.

SECTION 9. APPELLANT'S REPLY BRIEF

SECTION 3. ORDER OF TRANSMITTAL OF

Within 20 days from receipt of the appellee's


brief, appellant may file a rdply brief answering

RECORD

lf not transmitted within 30 days after

perfection of the appeal, either party may file a


motion with trial court, with notice to the other
for the transmittal.
SECTION 4. DOCKETING OF THE CASE
SECTION 5. COMPLETION OF RECORD
SECTION 6. DISPENSING WTH COMPLETE
RECORD

lf

of

completion
the record cannot be
accomplished within a sufficient period due to
insuperable or extremely difficult cause:
1. The court on its own motion; or
On motion of any of the parties

2.

96

points not covered in his main brief.

SECTION

10. TIME FOR

MEi'IORANDA IN SPEGIAL CASES

FILING

Sstt Fela Gollege of I'lb


2011 CENTRALIZED BAR OPERATIONS

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

appedt, appellant's brief shall contain, as


an appendix, a gopy of the judgment or

Contents specified by
Rules.

Shorter, briefer, only


one issue involved No subject index or
assignment of enors
just facls and law
applicable.

final order aPPealed from.

SECTION 14. CONTENTS OF APPELLEE'S


BRIEF

1.

EACH PARTY

2.

upon any of them.

3.

CONTENTS

2,
3.

references to the record' Authorities relied


upon shall be cited.

RAISED ON APPEAL,
OF

APPELLANT'S BRTEF (SAC FIARC)

1.

Under the heading "Argument," appellee


shall set forth his arguments in the case

SECTION 15. QUESTIONS THAT MAY BE

Exception: For good and sufficient cause.

SECTION 13.

appellant's statement of facts; and

on each assignment of error with page

SEGTION 12. EXTENSION OF TIME FOR


FILING BRIEFS .
General Rule: NOT allowed.

statutes cited with references to the pages


where they are cited;
Under the heading "statement of Facts',
appellee shall state that he accepts the

siatement of facts in the appellanfs brief,


or under the heading 'Counter-Statement
of Facts", point out such insufficiencies or
inaccuracies as he believes exist in the

briefs.

Several counsels represent one appellant or


appellee, copies of the brief may be served

references, and a table of cases


alphabetically arranged, textbooks and

SECTION {1. SEVERAL APPELLANTS OR


APPELLEES OR SEVERAL COUNSEL FOR
Several appellants or appellees each counsel
representing one or more but not all of them shall be served with only ONE (1) copy of the

Subjec't index of the matter in the brief with


digest of the arguments and Page

Subject index of the matter in the brief with

digest of the arguments and Page


references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the pages
where they are cited;
lssignment of errors;
Under heading of "Statement of the gase",
clear and concise statement of the nature
of the action, summary of the proceedings,
appealed rulings and orders of the court,
nature of the judgment and any matters
necessary to an understanding of the
nature of the controversy;

The appeal can raise only questions of law or


tuct that:
1. Has been raised in the court below; and

2.

Which is within the issues framed by the


parties.

Rule: The reversal of a judgment on appeal is

generally binding only on the parties. in the


ippeatei case and does not affecl or inure to
the benefit of those who did not join or were
not made parties to the aPPeal.

t^fr".ffi,ffiH ffiW *&W:

Under the heading "statement of facts,'


clear.and concise statement in a narrative
form of the facts admifted by both parties
5.
6.

7.

and ofthose in controversy;


Clear and concise statement of the lssues
of fact or law;
Under the heading "$rgument," appellant's
arguments on each assignment of error.
Authorities relied upon shallbe cited;
Under the headin$ '$elief," specification of
the order or judgment which the appellant
seeks; and

97

REMEDIAL LAW
CIVIL PROCEDURE

Note: The petition shall raise ONLY


OF LAW which must be

QUESTIONS

distinctly set forth.


RTC, Sandrgan bayan, CTA or
CA renders decision

Any party files a pelition for review on


certiorari within 1S days from notice of
final judgment or order of lower court or
notice of denial of motion for
reconsideration or new trial.

Appellant serves copies of petition on


adverse parties and to the lower court,
and pay the conesponding docket fees.

Doubt or controversy
as to what the law is on
certain facts.

or difference as
to the truth or.
falsehood of facts, or
as to probative value of
the evidence

lf the appellate court


can determine the
issue raised without
reviewing or evaluating
the evidence.
Can involve questions
of interpretation of the
lawwith respect to
certain set of facts.

The determination
involves evaluation or
review of evidence.

SC may dismiss the petition or require


the,apDellee to comment.

Query invites
calibration of the whole
evidence considering
mainly the credibility of
witnesses, existence
and relevancy of
specific surrounding
circumstances and
relation to each other
and the whole
probabilities of the
situation.

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

are final and conclusive and cannot

be

reviewed on appealto the SC.

Sq

Exceptions to Conclusivenesi of Facts


When the finding is grounded entirely on

1.

affirm, reverse, or modi!


iudqment of the lower court.

SECTION

m_ay

specul ations, su rmise or conjectu re;

1. FILING OF PETITION wlTH

SUPREME COURT

Appeals

to the SC can be taken from

judgment or final order or resolution


of the CA,
S31{tOanbayan, the Court of Tax Appeats,
]fre

the RTC or such other courts as 'mavbe

authorized by law and only by verified pefiiion

for review on certiorari.

The petition may include an application for a

writ
preliminary injunction
other
provisional remedies. The petitioner may
seek

of

or

provisionat remedies by VEitFtED


!19Lry"
MOTION filed in the same action or

proceeding at any time during its pendencv


/as
amended by A.M. 07-7-12-SC).

EXCEPT as provided in criminal cases in Sec


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

or a

98

2. When inference made is manifesfly


absurd, mistaken or impossible;
3. When the judgment is premised on a
m isreprese ntation of facts;
4. When there is grave abuse of discretion in
A

the appreciation of facts;


When the findings of fact are conflicting;

6.

When the CA in making its findings wenf

gstl Ftta ollege

of {,^rb

2011 CENTRALIZED BAR OPERATIONS


contradicted by the evidence on record;
and

11.

When certain material facts

Note: SC may dismiss the petition

motu

proprio.
and

circumstances have been oyerlooked by


the trial court which, if taken into account,
would after the result of the case in that

SEGTION 6. REVIEW DISCRETIONARY

to

special and important reasons therefore.

they would entitle the accused

Review will be granted only when there are

acquittal.
SECTION 2. TIME FOR FtLlNc; EXTENSTON

Within 15 days from notice of the judgment or

final order or resolution appealed from or


denial of the petitioner's motion for new trial or
MR filed in due time.

The SC may for justifiable reasons grant an


extension of 30 days only within which to file

the petition.

SECTION

3.

DOCKET

AND

OTHER

LAWFUL FEES; PROOF OF SERV|GE

Unless he has theretofore done so, petitioner


shall pay the corresponding docket and other
lawful fees to the clerk of court of SC and
deposit P500 for costs.

Proof of service of a copy thereof on the lower


court concerned and on the adverse party
shall be submitted together with the petition.
SECTION 4. CONTENTS OF THE PETITION

1.

2,
3.'
4.

5.

State the full names of the appealing party


as the petitioner and the adverse party as
respondent,
lndicate
specific material dates
showing that it was filed on time;
Set forth concisely a statement of the:
Matters involved;
Reasons or arguments relied upon for
the allowance of the appeal;
Accompanied by cteady legibte dupticate
original or certified true copy of the
judgment or final order or iesolution; and
Certificate of non-forum shopping.

the

a.
b.

SECTION

5.

The following, while neither controlling nor fully


measuring the court's discretion, indicate the
character
the reasons which will be
considered:

of

a.

Court a quo has decided a question of


substance, not theretofore determined by
the SC, or has decided it in a way
probably in accord with law or with the

b.

applicable decisions of the SC; or

Court a gao has so far departed from the


accepted and usual course of judicial
proceedings, or so far sanctioned such
departure by a lower court, as to call for an
exercise of the power of supervisibn.

SECTION 7,

PLEADINGS AHD
DOCUMENTS THAT MAY BE REQUIRED;
SANCTIONS

For purposes of determining Sec. 5 or Sec.

SC may require or allow the filing of such


pleadings, briefs, memoranda or documents
within such periods and under such conditions
as it may consider appropriate.

SC may impose the corresponding sanctions


in case of non-filing or unauthorized filing or
non-compliance with the conditions.
SEGTION 8. DUE COURSE; ELEVATION OF
RECORDS

SECTION 9. RULE APPLICABLE TO BOTH

DISMISSAL OR DENIAL OF

PETITION
1.

2.
3.
4.

Failure of the petitioner to comply with any


of the foregoing requirements;
Appeal is without merit; or

ls prosecuted manifesfly for delay; or

That the questions raised therein are too


unsubstantial to require consideration.

99

REMEDIAL LAW
CIVIL PROCEDURE

lnvolves the
review of the

judgment
award or final
order on the
merits.

Filed within 15
days from
notice of
judgment,
final order or
resolution
appealed
ftom.

Stays the

judgment or
order
appealed
from.

The appellant
and the
appellee are
the original
parties to the
action, and
the lower
court or quasi-

judicial

agency is not
impleaded.

lnvolves the
review of
judgments,
final orders or
resolutions of
COMELEC
and COA.

Directed
against an
interlocutory
order of the
court or where
there is no
appeal or any
other plain,
speedy or
adequate
remedy.

Filed within 30
days from
notice of
judgment, final
order or
resolution
sought to be
reviewed.

Filed not later


than 60 days
from notice of
judgment,
order or
resolution
sought to be
reviewed.

Shail not stay


the execution
unless SC
shall direct
otherwise
upon such
terms as it
may deem,
just.

Unless a writ
of preliminary
injunction or
temporary
restraining
order is issued
does not stay
the challenged
proceeding.
The judge,
court, quasi-

The
COMELEC
and COA shall
be public
respondents
who are
impleaded in
the action.

judicial
agency,
tribunal,
corporation,
board, officer
or person
shall be public
respondents
who are
impleaded in
the action.
Motion for
reconsideration

Motion for
reconsideration

is not
required.

The filing of a
motion for
reconsideratio
n or new trial,
if allowed
under the
procedural
rules of the
Commission,
shall interrupt
period fixed.

or for new trlal


is required;
lf a motion for
reconsideration

or new trial is
filed, the
period shall
not only be
interrupted but
another 60
days shall be
given to the
petitioner. (SC

Admin. Mafter

The court is in
the exercise
of its appetlate
jurisdiction
and power of
review.

The Court is in
the exercise of
its appellate
jurisdiction and
power of
review.

The petition

The petition
shall be filed
with the

shall be filed
with the
Supreme
Court.

Note:

Supreme
Court.

Court
exercises
original
jurisdiction.
The petition
shall be filed
with the RTC,

cA,
Sandiganbayan

and
COMELEC.

Rule on Writ of Amparo and Habeas

Data

Any party may appeal from the finaljudgment


or order to the Supreme Court under Rule 45.
The appeal may raise questions of fact or law
or both. The period of appeal shall be five (5)
working days from the date of notice of the
judgment or order.

SECTION 1. TITLE OF CASES.

ln all cases originally filed in the CA, the party


instituting the action shall be called petitioner
and the opposing party the respondent.

sEcTroN
APPLICABLE.

2.

TO Wnar

Original actions for

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2011 CENTRALIZED BAR OPERATIONS

5.

ln actions filed under Rule 65, indicate the


material dates showing when notice of the
judgment or final order or resolution was
received;

6. Filed in seven (7) legible copies, with proof


of service on the respondent;
7. Accompanied by clearly legible duplicate
original

8.
9.

or

certified true copy

such issues to any of its members or to an

appropriate court, agency or office (Sec.

6.

Payment of docket and other lawful fees;


and

to

comply with the foregoing


requirements shall be sufficient ground for
the dismissal of the petition.
Failure

court itself may conduct hearings or


delegate the reception of evidence on

of the

judgment or final order or resolution;


Gertificate of non-forum shopping;

10. Deposit the amount of P500.

4. Court may require the filing of a REPLY or


other pleadings as it may deem
. such
necessary;
5. Determination of FACTUAL ISSUES, the

and
Submission of Memoranda.
6,);

Note: The reception of evidence'may be


delegated to a member of the Court of
Appeals or a judge of the lower court who is
not a public respondent.

SECTION 7. EFFECT OF FAILURE TO FILE


COMMENT

Substantial Compliance Rule


Rule 46 applies to actions for ceftiorarifiled in
the Court of Appeals but Rale 65 generally

supplements the same. Mere duplicate


originals are sufficient under Rule 46 even if
Rule 65 requires only certified true copies
(Republic v. Carmel Development, lnc., G.R.
No.1

The case may be decided on the basis of the

record, without prejudice

to any disciplinary

action which the court may take agalnst the


disobedient party.

42572, Feb. 20, 2002).

SECTION

4. JURISDICTION OVER
PERSON, HOW AGQUIRED

SECTION

Jurisdiction ls Acquired
1. Over the PETITIONER - By filing of the

Annulment of judgment is a remedy in law


independent of the case where the judgment
sought to be annulled was rendered and may
be availed of though the judgment has been

2.

petition;

Over the RESPO/VDENf - By the service


on the latter of the order or resolution
indicating the courts initial action on the
petition or by his voluntary submission.

{. COVERAGE

executed.

Nature: lt is not a mode of appeal but an


independent civil action.

SECTION 5. ACTION BY THE COURT

Where Filed:

The court may:


1. Dismiss the petition outright with specific

2.

reasons for such dismissal; or


Require the respondent to file a comment
on the same.

SECTION

6.

DETERMINATION OF

FACTUAL ISSUES

Procedural outline (original cases


court of appeals)

in

the

1. Filing of the petition;


2. Order to acquire jurisdiction over

3.

respondents OR outright dismissal for


failure to comply with the requirements as
to form and payment of docket and other
legalfees;
Require respondents to file COMMENT
within ten (10) days from NOTICE;

this
The

trial in, or
relief against,

101

REMEDIAL LAW
CIVIL PROCEDURE

3.

Contents of the documents, which should


accompany the petition.

SEGTION

SECTION 4. ACTION ON THE PETITION

1.

The CA may:
Require the respondent to file a comment
on the petition, NOT a motion to dismiss,
within 10 days from notice; OR
Dismiss the petition if it finds the same to

2.

1.

2.

be:

a. Patently without merit;


b. Prosecuted manifesily for delay; or
c. The questions raised therein are too
unsubstantial to require consideration.

8. PERFECTION OF APPEAL;

EFFECT

Deemed perfected as to the petitioner


upon the timely filing of the petition for
review and payment of the coresponding
fees; and
Court loses jurisdiction over the case upon
perfection of appeal on time and expiretion
of the period to appeal.

Residual Power of the court before the CA


gives due course to the petition (Same as in
Sec. 9, Rule 41).

SECTION 5. CONTENTS OF COMMENT

Except in civilcases decided under the Rule


on Summary Procedure, the appeal shall stay

Comment of the respondent shall be filed in

the judgment or final order unless the CA, the


law, or these Rules shall provide otherwise

seven (7) legible copies, accompanied by

certified true copies of such material portions


of the record refened to therein together with
other supporting papers and shall: (AlR)
1" Strate whether or not he gccefts the

of matters involved in the


petition;
2. Point out such lnsufficiencies or
inaccuracies as he believes exist in
petitioner's statement of matters but
without repetition; and
3. Reasons why the petition should not be
statement

(Sec.8[b]).
SECTION 9. SUBMISSION FOR DECISION
lf the petition is given due course:
1. Case may be set for oral argument; or

2.
3.

The parties may be required to submit


memoranda within 15 days from notice;

Case shall be deemed submitted for


decision upon filing of the last pleading or
memorandum.

given due course.

SECTION 6. DUE COURSE

.Petition for review is not a matter


of right but
discretionary on the CA. tt may onty giie due
course to the petition if it shows on its face
(CA finds prima facie) that the lower court has
commifted an error of fact and/or law that will

warrant

reversal or modification of the


decision or judgment sought to be reviewed.

sEcTtoN {. scoPE
Appeals from awards, judgrirents, final orders
or resolution of or authorized by any quasi-

judicial agency in the exercise of its quasi-

judicial functions.

SECTION 7. ELEVATION OF RECORD

It is merely discretionary on the CA to order


the elevation of the records. This is because
until the petition is given due course, the trial
court may still issue a wanant of execution
pending appeal and in some cases such as
ejectment and those of Summary procedure,

the judgments are immediately exbcutory.

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


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

The

entralB#$dffi
4.
5.

o.
7.
8,
9.

10.

11.

12,

under RA
665

13. GSIS;
94

REMEDIAL LAW
CIVIL PROCEDURE

the questioned judgment or final order or

the case with the active participation of


said party invoking the plea (Tijam vs.
Sibonghanoy, G.R. No. L-21450, April 15,

resolution through no fault attributable to him.

lf he failed to avail of those other

remedies

without sufficient justification, he cannot resort


to annulment provided in this Rule, otherwise
he would benefit from his own inaction or
negligence.

Note: Annulment of Judgment does not apply

to

judgments rendered

by

1968).

Attack of a Void Judgment


When the judgment is null and void on its very
face, the judgment may be attacked:
DIRECTLY; or
COLLATERALLY;

1.
2.

quasi-judicial

bodrbs. lt does nbt apply also to decisions or


orders of the Ombudsman in administrative

cases whose decisions or orders may be


appealed to the Court of Appeals under Rule
43 (Macalalag v. Ombudsman, G.R. No"
147995, Mar.5,2A04.

When the nullity is not apparent on the face of

the judgment, the judgment can only

be

DIRECTLY attacked.
DIRECT ATTACK

An

independent action must

be filed to

challenge the validity of the judgment whose

SECTION 2. GROUNDS FOR ANNULMENT

1.

Extrinsic fraud or collateral fraud;

nullity is not patent on its face.

COLLATERAL ATTACK

A collateral attack is made when, in another


Extrinsic or Collateral Fraud refers to any
fraudulent act of the prevailing party in the
litigation which is committed outside of the
trial of the case, whereby the defeated
party has been prevented from exhibiting
fully and fairly presenting his side of the
case.

action to obtain a different relief, an attack on


the judgment is made as an incident in said
action. This is proper only when the judgment
is on its face null and void such as in cases of
lack of jurisdiction to render the judgment.
SECTION 3. PERIOD FOR FILING ACTION

Note: Extrinsic ftaud shall not be a valid


ground if it was availed of, or could have
been availed of, in a motion for new trial or
petition for relief.

2.

Lack of jurisdiction over the subject

matter and over the person.

a right at a proper time.

Note: The rule is that jurisdiction over the


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

However, considering the facts and


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

ta2

of annulling everything done

Effect of

judgment

Lack of jurisdiction
The defense of lack of jurisdiction may be
barred by esfoppe/ by laches, which is that
failure to do something which should be
done or to claim or enforce a right at a
proper time or a neglect to do something
which one should do or to seek or enforce

purpose

Before it is barred
by laches or
estoppel.

in

Court may on
motion order the
trial court to try
the case as if a
timely MNT had
been granted.

Set aside the


questioned
judgment and
render the same
null and void,
without prejudice
to the original
being rethe proper

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2O1 1 CENTRALIZED BAR OPERATIONS

5.

SECTION 10. ANNULMENT


OR FINAL ORDERS

Certificate of non-forum shopping.

JUDGMENTS
SECTION.5. ACTION BY THE COURT

MUNICIPAL TRIAL COURTS

'

Two stages:
'1. A preliminary evaluation of the petition for

2.

prima facie merit therein; and

The issuance of summons as in ordinary

civil cases and such

appropriate
proceedings thereafter as contemplated in
Sec. 6 (Regalado, p.572).
The rule allows the CA to dismiss the petition
outright as in special civil actions.

For the court to acguire jurisdiction over the


respondent, the rule requires the issuance of
summons should prima facie merit be found in
the petition and the same is given due course.

Note: Res judicata is not a bar to an action


for annulment of the judgment sought to be
annulled (Orbeta v. Sendiong, G.R. No.
155236, July 8, 2005).
SECTION 6. PRObEDURE

Procedure
observed.

in

ordinary cases shall

OF
OF

be

.
o

Filed in the RTC having jurisdiction over


the MTC.

RTC is a court of general jurisdiction. All


cases, the jurisdiction over which is not
specifically provided for by law to be within
the jurisdiction of any other court fall under
its jurisdiction (Durisol Philippines, lnc. vs.
CA, G.R. No. 121106, Feb.20,2002).

General Rule: Annulment of judgment

is

available only to a litigant.

Exception: A person need not be a party to


the judgment sought to be annulled. What is
essential is that he can prove his allegation
that the judgment was obtained by the use of
fraud and collusion and he would be adversely
affected thereby (lslamic Da'wah Council vs.
Court of Appeals, G.R, No. 80892 September
29,1e.89).

Note: Where a petition for annulment of


judgment was dismissed by the Court of
Appeals, the Supreme Court is without
jurisdiction to entertain another petition for

The reception of evidence may be referred to


a member of the court or a judge of RTC.

annulment in the guise of a special civil action


tor certiorari under Rule 65. The remedy of
the petitioner is to file a petition for review on

SECTION 7. EFFECT OF JUDGMENT

Developmenf v. Rrsos, G.R. 118633, Sepf.

SEGTION 8.

SUSPENSION

certiorari under Rule

45

(Lapu-lapu
6,

1996).

OF

PRESCRIPTIVE PERIOD

Prescriptive period for the re,filing of the


aforesaid original action shall be deemed
suspended from the filing of such original
action until the finality of the judgment of

Nature: Preliminary conference before the


appellate court is not mandatory. lts calling is
within the discretion of said court.

annulment.

HOWEVER, the prescriptive period shall not


be suspended where the extrinsic fraud is
attributable to the plaintiff in the originat action.
SECTION 9. RELIEF AVAILABLE

Judgment may include award

of

damages,

attorney's fees and other relief.

lf

already executed, the court may issue


ORDERS OF RESTITUTION or other retief as
justice and equity may warrant.
which may

103

REMEDIAL LAW
CIVIL PROCEDURE
Failure to appear at the preliminary conference
is ground for dismissal of the petition
(Sec.l[h], Rule 50; Sec SIeJ, Rule 56).

SECTION

2. RECORD OF

THE

CONFERENCE

SECTION 3. BINDING EFFECT OF THE


RESULTS OF THE CONFERENCE

ln the CA, this procedural device may

5.
6.

7.

be

availed of not only in original actions but also


in cases on appeal wherein a new trial was

granted on the ground of newly discovered

8.

evidence.
The CA can act as a trier of facts. HENCE, the

preliminary conference authorized is a


convenient adjunct to such power and

Failure of appellant to gerve and file the


required number of copies of his brief or
memorandum within the time provided by
these Rules;
fbsence of specific assignment of errors

in the appellant's briel or of

page
references to the record as required in Sec
13, par a, c, d and f, Rule 44;
Failure
the appellant to take the
lecessary steps for the conection or
completion of the record within the time
limited by the court in its order;
Failure of the appellant to eppear at the
preliminary conference under Rule 48 or to
comply with the orders, circulars, or

of

directives of the court without justifiable

cause; and

The fact that the order or judgment


appealed from is 4ot appealable.

function.

Note: With the

exception

of

Section

1 (b),

dismissal of an appeal is DIRECTORY and not


mandatory (Advincula v. lAC, G.R. No.75310,
Dec. 10, 1987).
SECTION 1. WHEN ALLOWED

At its own instance or upon motion of a party,

the court may hear the parties in orit


argument on the merits of a case or any
material incident in connection therewith.

2.

CONDUCT

OF

ORAL

SECTION 3. NO HEARING

OR

ORAL

SECTION
ARGUMENT

ARGUMENT FOR MOTIONS

Motions in the SC and the CA do not contain


notices of hearing as no oral arguments will be
heard in support thereof; anO if the appellate
court desires to hold a hearing thereon, it will
itself set the date with notice to the parties.

3.
4.

to4

Where the appealed case has become


gqoot or academic; and

Where the appeal is frivolous or dilatory.

Not jurisdictionat,
maybe waived by the
padies

Decision becomes
FINAL AND
EXECUTORY upon

Results in
abandonment of
appeal, which could
lead to D/SM/SSAL

Failure of the gecord on appeal to show on

its face that the appeal was taken within

2.

2,
3.

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APPEAL (RF-PUSANAN)

OTHER GROUNDS for the dismissal of an


appealare: (AMF)
1. By ggreement of the parties, as where the
case was amicably seitled by them;

the period fixed by these ruleg;

Failure to lile the notice of appeal or the

record

on

appeal within

prescribed by these rules;

the

period

Failure of the appellant to pay the docket


and other lawfulfees as provide in Sec. 5,
Rule 40 and Sec 4, Rule 41;
lnauthorized alterations, omissions or
additions in the approved record on appeal
as provide in Sec 4, Rule 44;

to it
these

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2011 CENTRALIZED BAR OPERATIONS


A resolution of the Court of Appeals dismissing
the appeal and remanding the case to the trial
court for further proceedings
merely
INTERLOCUTORY. Hence, a motion for its
reconsideration filed year later may be
entertained and granted.
The Court of Appeals may dismiss the appeal
outright even without motion.

is

SECTION 3. QUORUITI AND VOTING IN THE


COURT
To be binding, a judgment must be duly signed
and promulgated during the incumbency of the
judge who signed it.

Note: Where the decision was promulgated


after two of the three justices necessary to

The remedy if dismissed for improper appeal:


To re-file it in the proper forum but has ta be

conptitute a quorum in a division had lost their


authority to act as justices, said decision is nUll

within the prescribed period.

and void (Lao


Feb.26, 1988).

v.

To-Chip, G.R. No. 76594,

SECTION 3. WTHDRAWAL OF APPEAL

matter

of right before the filing of

SECTION 4. DISPOSITION OF THE CASE

the

appellee's brief.

SECTION 5. FORM OF DECISION

Note: While under this section, an appeal


may be withdrawn by the appellants as a
matter of right at any time before the filing of

The requirement for the statement of facls and


the law refers to a decision or for that 4after a
final resolution. The same are not required on
minute resolutions since these usually dispose
of the case not on its merits but on procedural

the appellee's brief; however the rule does not


apply where the notice of withdrawal fited by

new counsel did not bear the appellant's


conformity (Pioneer Insurance and Surety
Corp. v. De Dios Transportation, G.R. No.
147010, July 18,2003).

or technical considerations.

With respect to petitions for review and


motions for reconsideration, the Constitution
merely requires a statement of the legal basis
for the denial thereof or refusal of due course

SECTION

1.

WHEN CASE

DEEII'IED

SUBMITTED FOR JUDGMENT

A.

ln ordinary appeals

1.

No hearing on the merits

memorandum;

2.

B.

Upon the

filing of the last pleading, brief, or

or

expiration

of

the

period for its filing;


Hearing is held Upon its termination
or upon the filing of the last pteading
or memorandum as may be required
or permitted to be filed by the court; or
expiration of the period for its filing;

thereto. The court may opt, but it is not


required to issue an extended resolution
thereon.

Decisions and resolutions of a court in


appealed cases shall clearly and distinctly
state the findings of fact and the conclusions
of law on which they are based, which may be

contained in the decision or final resolution


itself, or adopted by reference from those set

forth in the decision, order, or

resolution

ln original actions and petitions for review

1. No comment is filed - Upon expiration


of the period to comment;
2. No hearing is held - Same as in A(1);
3. Hearing is held - Same as in A(2).

SEGTION 2. BY WHOM RENDERED

Members who participated in the deliberation


on the merits of the case before its assignment

to a member for the writing of the decision.

does
parties

of

105

REMEDIAL LAW
CIVIL PROCEDURE
General Rulei The appellate court can only
rule on the basis of grounds raised as erors

on appeal.

affecting jurisdiction over the

subject matter;

2. Evidently plain and clerical errors within


the contemplation of law;
3. ln order to subserve the ends of justice;
4. Matters raised in the trial court having
some bearing on the issue which the
parties failed to raise or which the lower

5.

court ignored; and

Matters closely related


assigned.

SECTION

to an

7, JUDGMENT WHERE

ARE SEVERAL PARTIES

SECTION

2.

SECOND MOTION FOR

RECONSIDERATION

The rules prohibit

Exceptions:

1. Those

SECTION

8.

DECIDED

eror

or

second motion for

Note: The prohibition does not include


v. CA, G.R. No.

interlocutory orders (Dizon


96296, June 18. 1992).

SECTION 3. RESOLUTION OF THE MOTION

Ninety (90) days from the date the CA


declares it submitted for resolution.

This time limit applies only to MR in CA. lt


does not apply to MR in SC, pursuant to the
THERE

QUESTIONS THAT MAY BE

Unless assigned

reconsideration by the SAME party.

closely-related

to

exception in Sec. 2 (b), Rule 56.


SECTION 4. STAY OF EXECUTION

or

dependent on an assigned erior, no enor shall


be considered.

.SECTION 1. PERIOD FOR FILING; GROUND

Exceptions:
1, Error in the jurisdiction over the subject

Filing of a motion for new trial is at any time


after the perfection of the appeal from the
decision of the lower court and before the
Court of Appeals loses jurisdiction over the

2.

matter; or
Validity of the judgment appeated from or
the proceedings therein.

SECTION 9. PROMULGATION AND NOTIGE


OF JUDGMENT
ln justifiable situations or by agreement in the
division, the fiting of diss6ntiig or' ."p"r"t"

opinions may

be reserved oi tne majority


the' subsequent Esuance of 'a 'more

opinion may be promulgated without preiuOice

to

extended opinion, provided the requisite votes


promulgation of judgment irave been
obtained and recorded.

tor

SECTION 10. ENTRY OF JUDGMENTS AND


FINAL RESOLUTIONS
SECTION 1{. EXECUTION OFJUDGMENT

SECTION 1. PERIOD FOR FILING

.
o

Within 15 days from notice.


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

106

case.

. The ONLY GROUND is

rueWly

DISCOVERED EVIDENCE which coutd

not have been,discovered prior to the trial


in the court below by the exercise of due
diligence and of such character as would
probably alter the result thereof. A second
motion for new trial in the CA would not be

possible, unlike in Sec. 5 Rule 37.

Note: Rule 53 is not applicable to the SC. lt

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2011 CENTRATIZED BAR OPERATIONS


SECTION 4. PROCEDURE

SECTION

1.

DISTRIBUTION

OF

CASES

AMONG DIVISIONS
SECTION 2. QUORUi'I OF THE COURT

SECTION 5. GROUNDS FOR DISilIISSAL OF


- PReGEN)

APPEAL (TM

1.
2.
3.

SECTION ,l. PUBLTCATION

4.

regarding proof of service and contents of

and the documents which should


accompany the petition;
Failure to gomply with any circular,
directive or order of the SC without

SECTION 2. PREPARATION OF OPINTONS


FOR PUBLICATION

SECTION

3.

VOLUMES

Failure to lake the appeal within the


reglementary period;
Lack of gqerit in the petition;
Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for
costs;
Failure to comply with the ggquirements

GENERAL MAKE-UP OF

Official reports of court decisions which are


published by the Govemment and, therefore,

constitute primary authority thereon, are those


in the Philippine Reports, Official Gazette and
Court of Appeats Reports, all of which are
authorized by law (Regatado, F. RemediatLaw
Compendium Vol1.9th ed. p.659).

6.
7.

justifiable cause;

Error in the choice or mode of appeal; and


Fact that the case 4ot appealable to the

sc.

Note: The dismissal of the appeal may be


motu proprio or on motion of the respondent.

SECTION 6. DISPOSITION OF IMPROPER


APPEAL

lmproper appeal means the choice or mode


of appeal is correct but the appellant raises

A.

issues which the court could not resolve (E g.


Where petition for review on cefiiorari was

ORIGINAL CASES

sEcTtoN

1.

OOGNIZABLE

ORIGINAL

taken but factual issues are invoked for


CASES

The rule specifically states what cases may be


originally filed with the Supreme Court.
Petition
ceftiorari, prohibition,
mandamus, qua warranto, habeas corpus;
Disciplinary proceedings against members
of the judiciary and attorneys;
Cases affecting ambassadors, other public
ministers and consuls; and
Petitions for writ of amparo and habeas

1.
2.
3.
4.

for

data.

resolution).

ln this instance the case may be referred to


the CA, although the SC may also dismiss the
appeal.

Erroneous appeal means error in the choice


or mode of appeal.(F9,"*yy[ere appeal taken to

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SECTION 2. RULES APPLICABLE

Rules 46, 48, 49, 51, 52 and


certain exceptions.

B.

56 subject to

APPEALEDCASES

toa

SECTION 3. MODE OF APPEAL

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

his
pending
p.a36).

ro7

REMEDIAL LAW
CIVIL PROCEDURE

The FOLLOWING are the provisionat


remedies provided for in the Rules of Court:
1. Preliminary Attachment (Rute S7);
2. Preliminary lnjunction (Rule 58);
3. Receivership (Rule 59);
4. Replevin (Rule 60);and
5. Support Pendente Lite (Rule 61).
These provisional remedies are also available

in criminal cases (Ru/e 127), and in

some
special civil actions and special proceedings.

Purpose of Provisional Remedies:

Provisional remedies

are resorted to

. Being

in

provisional
character,
attachment depends for its existence and
effectivity upon

the pendency of

principal action in court.

r lt does not affect the decision on the


merits; the right to recover judgment on
the alteged indebtedness and the right to

attach the property of the debtor are


entirely separate and distinct, and the

judgment in the main action neither


changes the nature nor determines the
validity of the attachment.

by

litigants for any of the following reasons:

1. To preserve or

SECTION

1.

GROUNDS UPON WHICH

protect the rights or


interests of litigants while the main action

ATTACHMENT MAY ISSUE

is pending;

The proper party may have the property of the


adverse party attached at the commencement
of the action or at any time before entry of

2. To secure the judgment;


3. To preserve the stafus quo; and
4. To preserve the subject matter of the

judgment.

action.
OTHER PROVISIONAL REMEDIES
A. lssued by a family court
1. Temporary Custody of Minor Children

2.

B.

Order allowing Visitation Rights of

Parents
lnterim Reliefs in a Petition for a Writ of
Amparo
1. Temporary Protection Order
Inspection Order
Production Order
Witness Protection Order

2.
3.
4.

Note; PD 1818 prohibits the issuance of

injunctive writs not only against govemment


entities but also against any person or entity
involved in the execution, implementation, and

operatjon

projects.

of

govemment

inftastructure

lnferior courts can grant all appropriate


pgovisional remedies, provided the main

Parties entitled to attachment:

1. Plaintiff
2. Any proper party

The term plaintiff or "any other plaintif in


whose favor an attachment is granted under
the rule, includes also the defendant whenever
he asserts a counterclaim against the plaintiff,
whether or not such counterclaim arises out of

the same transaction which is the subject


matter of plaintiffs original claim. lt also
includes defendant in interpleader when he
asserts a counterclaim against the plaintiff; in
this case, he may attach the funds in dispute.

When issued: (REPoGReS)


1. ln actions for gqcovery of a specified sum
of money or damages, except moral and
exemplary, on a cause of action arising
delict or

case is within its jurisdiction (Sec. 33 [1]


BP 12e).

Preliminary attachment

is a

provisional

remedy issued upon order of the court where


an action is pending to be levied upon the
property of the defendant so that it may be
held as security for the satisfaction of
whatever judgment may be rendered in the
case (Davao Light and Power, lnc. v. CA, 204

scRA 343).

108

of
taken,
property

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2011 CENTRALIZED BAR OPERATIONS

4.
,

disposed of to prevent its being found by


the applicant or any authorized person;
ln actions against a person guilty of fraud
in contracting the debt (dolo causante) or
incurring or performing an obligation upon
which the action is based (dolo incidente);
actions against
party who has
removed or disposed of his property, or is
about to do so, with intent to defraud his
creditors;
ln actions against non-residents not found
in the Philippines, or on whom summons
is served by publication.

5. ln
6.

Note: The foregoing

enumeration

Purposes;

1. To seize the property of the debtor in

2.

advance of final judgment and to hold it for

purposes of satisfying the said judgment


(lnsular Bank of Asia and America v. CA,

t90SCRA 629);and
To enable the court to acquire jurisdiction

over the action

by the

constructive seizure

actual or
of the property in

those instances where personal service of

summons

on the creditor cannot

ed., p.

THREE

(3) STAGES in the grant of

Preliminary Attachment
1. The court issues the order granting the
application;

2. The writ of attachment issues pursuant


the order granting the writ;
3. The writ is implemented.

to

Note: For the initial two stages, it is NOT


necessary that jurisdiction over the person of
the defendant be first obtained.

is

EXCLUSIVE. Except for No. 6, all the grounds


contemplate the commission of fraud by the
person against whom it is issued.

Remedial Law Compendium Vot 1.


622).

be

effecled.

HOWEVER, once the implementation of the


writ commences, the court must have acquired
jurisdiction over the defendant for without such
jurisdiction, the court has no power or authority
to act in any manner against the defendant
(Mangila vs. CA, GR /Vo. 125027, August 12,
2002).

Methods to procure attachment:


Writ may be prayed for in the complaint
itself providing that allegations warranting

a.'

its issuance are made therein.

b. May be

issued pursuant to a separate


motion for attachment whenever the writ
is not prayed for in the original complaint

SECTION

2.

ISSUANCE AND CONTENTS

OF ORDER

lssued either ex-parfe

or upon motion with

notice and hearing by the court in which the


It is an auxiliary remedy
to give security for a
judgment still to be
rendered.

It is a means for the


execution of a final
judgment,

There is no sale
because a decision has
not yet been rendered.

It should always be
accompanied by a sale
at public auction.

Resorted to at the
commencement of the
action or at any time
before entry of
judgment, for the
temporary seizure of
property of the adverse
party.

The proceeds of the


safe are in custodia
legis.

action is pending.

However, when issued ex-parte, the writ


cannot be enforced and may not be validly

Available after the

judgment in the main


action had become
executory, and for the
satisfaction of said
judgment.

The prooeeds ofthe


.

sale are turned over to


the aftaching creditor.

the writ

Proceeding in aftachment is in rem where the


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

109

REMEDIAL LAW
CIVIL PROCEDURE
the writ totally defective as the judge issuing it
acts in excess of jurisdiction

SECTION 7. ATTACHMENT OF REAL AND

Ratio: No notice to the adverse party or


hearing of the application is required, as the

What may be the subject of attachment:

enough to enable the defendant to abscond or


dispose of his property before the writ issues
(Regalado, F. Remedial Law Compendium Vot
1. dh ed., p.624).

3.

time which the hearing wiil entail could be

PERSONAL PROPERTY

1. Real property or any interest therein;


2. Personal property capable of manual

4.

of which is entitled to recover is as much


as the sum for which the order is granted

Par. (3) and (4) refer to gamishment. By such

above all legal counterclaims.

jurisdiction over the garnishee and the latter

BOND
Bond posted by the attaching creditor answers
be
adjudged to the adverse party arising from and
by reason of the aftachment.

for the damages and costs which may

SECTION

5.

MANNER OF ATTAGHING
(Rule on prior or
Contemporaneous Service)

PROPERTY

Note: Levy shall not be made unless preceded

contemporaneously accompanied by:

(scABo)

1.

$ervice of summons,
A copy of the comptaint;

2.
3. Application for attachment;
Affidavit and lond of the appticant; and
1
5. Qrder and writ of attachment.
BUT'prior or contemporaneous service of
Apply when:

summons shall NOT

1.

Summons could not be served personally


or by substituted service;

2. Defendant is a resident of the philippines


tempor4rily absent therefrom;
3. Defendant is a non-resident; and
4. The action is one rn rem or quas-in rem.
Note: All properties exempt ftom execution
are likewise exempt from attachment (Sec. J
Rule 57;Sec. 73, Rute 39).
SECTION 6. SHERIFF'S RETURN

110

of

lnterest
the party against whom
attachment is issued in properg belonging
to the estate of the decedent, whether as
heir, legatee, or devisee.

5.

SECTION 4. CONDITION OF APPLICANT'S

not capable of manual delivery; or

A sufficient cause of action exists;


Case is one of those mentioned in Sec. i;
No other sufficient security for the claim

2.
3.
sought to be enforced by action;
4. Amount due to the applicant or possession

Debts and credits, 'including bank


deposits, financial interest, royalties,
commissions and other personal property

Contents of the Affidavit

1.

delivery;
Stocks or shares or interest therein;

notice

of

gamishment,

the court

acquires

becomes a foreed intervenor in the case.

Debt means some definite amount of money,


ascertained or capable of being ascertained,
which may be paid over to the sheriff or to the
court, while credits and perconal property
are something belonging to the defendant, but
in possession and under the control of the
garnishee (Feria, Civil Procedure Annotated,
Vol.2, 2001 Ed., p.294).

Property legally attached is property in


custodia legrs and cannot be interfered
with without the permission of the proper
court, but this is confined to cases where

the property belongs to the defendant or


one in which the defendant has proprietary
interest.

Principle of Seniority of Liens


Where the property attached by the judgment
that of the

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2OI1 CENTRALIZED BAR OPERATIONS
(Perla Compania de Seguros v. Ramolete,
GR. No. 60884, Nov.13,1991).
SECTION 9, EFFECT OF ATTACHMENT OF
INTEREST IN PROPERTY BELONGING TO

4.
5.

Attachment is gxcessive, but the discharge

shall be limited to the excess (Sec.


and

Property attached

is

13);

g,xempt from

execution.

THE ESTATE OF A DECEDENT

SECTION {0. EXAMINATION OF PARTY


WHOSE PROPERTY IS ATTACHED AND

PERSONS INDEBTED

TO HIM

OR

CONTROLLING HIS PROPERW; DELIVERY


OF PROPERTY TO SHERIFF

Note: The examination in Rule 39 is proper


only when the writ of execution is returned

An ex-pafte discharge or suspension of the


attachment is a disservice to the orderly
administration of justice and nullifies the
underlying role and purpose of preliminary
attachment in preserving the rights of the
parties pendente /rte as an ancillary remedy.

SECTION 14.

.PROCEEDINGS

WHERE
PROPERTY CLAIMED BY THIRD PERSON

unsatisfied-

Examination under

this section is

Remedy of the third person:

not

to a preliminary condition but is

subject

anticipatory in nature and may be resorted

to even if the writ of aftachment was not


returned because no property could be
found to be levied upon thereunder.

lf the

garnishee does not admit the


indebtedness or he claims the property, the
controversy must be determined in an
independent action (Bucra Corp. v. Macadaeg,
84 Phit493).

SEGTION 11. WHEN

ATTACHED

PROPERTY MAY BE SOLD AFTER LEVY

ON ATTACHTUENT AND BEFORE ENTRY


OF JUDGMENT

1. File a terceria or third party claim


(similarto Sec. 16, Rule 39);
2. File independent action to recover
his property; or
3. File a motion for intervention (Ihts is
availabld only before a iudgment ls
rendered, hence,

under

Note: A third-party claim may be filed with


the sheriff while he has possession of the
properties levied upon, this being the only time
fixed for the purpose (Mangaoang v. Provincial
Sheriff of La Union, G.R. No. L-4869, May 26,
1952).

SECTION 15. SATISFACTION

OF
PROPERTY
ATTACHED; RETURN OF SHERIFF

JUDGMENT
ln case the property attached is perishable in
nature, or that the interests of all the parties
will be subserved.

not allowed

Rule 39.).

OUT OF

SECTION 16. BALANGE DUE COLLECTED

UPON AN EXECUTION;

EXCESS
DELIVERED TO JUDGMENT OBLIGOR

The proceeds will be in cusfodr'a /egrs.

SECTION 12. DISCHARGE OF


ATTAGHMENT UPON GIVING
COUNTERBOND

SECTION 13.

DISCFTARGE

OF

ATTACHMENT ON OTHER GROUNDS

Grbunds

for

discharge

attachment: ICIJEEI

of

preliminary

1. Debtor has posted a counter-bond or has


made the requisite cash deposit (Sec. 12);
2. Attachment was improperly or lrregularly
issued (Sec. 13) as where there

is

no

ground for attachment, or affidavit and/or

bond filed therefore are defective or

ACHED

IS

insufficient (Sec.3);

3. i[udgment is rendered against

the

FOR

PARTY

attaching credltor (Sec. 19);

tlL

REMEDIAL LAW
CIVIL PROCEDURE
SECTION 20. CLAIM FOR DAMAGES ON
ACCOUNT OF IMPROPER, IRREGULAR OR
EXCESSIVE ATTACHMENT

When must application for damages be


Before the trial or before appeal is
perfected, or before the judgment becomes

filed;

executory.

Preliminary Mandatory lnjunction (PMI) is


requiring the performance of a

an order

particular act or ac{s.

Purpose is to prevent a
person from the
performance of a

Purpose is to require a
person to perform a
particular act.

The act has already

tt shall be awarded after hearing and inctuded

been performed and this


act has violated the

in the judgment.

lf the judgment of the appettate court be


favorable to the party against whom the
attachment was issued, he must claim
damages during the pendency of the appeal.

Procedure for claiming damages ouilined in


Sec. 20 is EXCLUSIVE. Hence, such claims

for damages cannot be the subject of

an

independent action.

Exception:
1. Where the principal case was dismissed
for lack of jurisdiction by the trial court
without giving an opportunity to the party
whose property was attached to apply for

2.

'

and prove his claim; and

Where the damages by reason of the


attachment was sustained by a third
person who was not a party to the action
wherein such writ was issued.

Note: Any award of damages for the


wrongful issuance of a provisional remedy
should be recovered in the SAME CASE. The

recovery

of

damages cannot be had

separate action.

in a

Requisites: (lRU)

1.

INJUNCTION

material and

writ to prevent serious damages.

lnjunction may be an action in itself, brought


specifically to restrain or command the
performance of an act. As an action, it is
immediately executory under Sec" 4, Rule 39.
General rule: lt will not issue against acts
already consummated.

Exception:

lf the acts complained of are

continuing in nature and were in derogation of


plaintiffs rights at the outset.
Where writ is not available:

1.

1. PRELIMINARY

of the right is

2. light of the complainant is clear and


unmistakable; and
3. prgent and paramount necessity for the

2.
SECTION

lnvasion

substantial;

Foreclosure

of a

mortgage

government bank (PD 385);

Commencement

and

lnjunction

is a

performance of

party or a court, agency or a person to refiain


from a particular act or acts.

Purpose: To preserve the sfafus guo or to


prevent future wrongs during the pendency of
the main action.

172

patents or

judicial writ, process or

Preliminary lnjunction (pl) is an order


granted at any stage of an action or
proceeding prior to the judgment requiring a

infrastructure projects by the government


(RA 8795); and

DEFINED; GLASSES
proceeding whereby a party is ordered to do or
reftain from doing a particular act.

by

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2011 CENTRALIZED BAR OPERATIONS

It may be the main


action itself or just a
provisional remedy.

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


an inferior court cannot grant the preliminary

Always the main action.

injunction.

Ratio: An action for injunction is one incapable

of pecuniary estimation, hence, cognizable by


the RTC.

Does not exceed

20

days.
Restrains or requires the

performance

of

particular acJs.

Limitations as to Power of RTC to lssue


Writ of Preliminary lnjunction
1, lt could restrain acts being or about to be
committed within its tenitorial jurisdiction
only;
2.

Status Quo means the last, actual, peaceable

and uncontested state of things

which

3.

preceded the controversy.

Status Quo Order is not a TRO. lt is more in


the nature of a cease and desist order. lt has
no specified duration and does not specifically
direct the performance of an act. lt lasts until it
is revoked. lts duration may even be subject to
agreement of the pgrties. NO bond is required
for its issuanc"e. (Riano, 2009, Bar 2006)

Note: lt is resorted to when the projected


proceedings in the case made the
conservation of the status quo desirable or
essential, but the affected party neither sought
such relief nor did the allegations in his

pleading sufficiently make out

case for a

TRO.

It could not issue said writ in unfair labor


practices;

It could not issue said writ against the


Securities and Exchange Commission
(SEC), Bureau of Patents, Trademarks
and Technology Transfer, or the
COMELEC; ahd

It could not interfere by injunction with the

judgment

of a court of

concurrent or

coordinate jurisdiction.

SECTION 3. GROUNDS FOR ISSUANCE OF


PRELIMINARY INJUNCTION
(EnGoD)
1.

is gtitled to the
@mmission, continuance or
Applicant

relief

demanded; or

2.

performance

non-

of the act complained

of

would work injustice to the applicant; or


Party, court, agency or a person is gloing,

threatening, or is attempting to do, or is


procuring or suffering to be done, some
act or acts probably in viqlation of the
rights of the applicant respecting the
subject of the action or proceeding.
Good for 20 days
including the first 72
hrs.

SECTION

2. WHO MAY

TION AND

toR

BOND

GRANT

PRELIMINARY INJUNCTION

1.

sEcTroN 4.

Supreme Court in its original and appellate


jurisdiction;

2. Court of Appeals whether or not in aid of


its appellate jurisdiction;
3. Trial court in cases pending before it within
its territorial jurisdic,tion;
4. Sandiganbayan; and
5. Court of Tax Appeals.

person
before

resuft

can be
temporary

only for 20
party sought

113

REMEDIAL LAW
CIVIL PROCEDURE

B.

IF the matter is of extreme urgency and


the applicant will suffer grave injustice and
ineparable injury:
o The judge may issue ex parfe a TRO
effective only

for 72 hours

from

such damages

as he may suffer.

PROVIDED, the defendant files a BOND


to pay all the damages which the applicant
may suffer.

lts effectivity may be extended afier


conducting

a summary hearing Win

SECTION 7. SERVICE OF COPIES OF


BONDS; EFFECT OF DISAPPROVAL OF
THE SAME

the 72-hour period until the application


for preliminary injunction can be
heard.

SECTION

issuance.

8.

JUDGMENT

TO

INCLUDE

DAMAGES AGAINST PARTY

AND

SURETIES

The total period of effectivity of the TRO shall


not exceed 20 days, including the 72 hours.

The procedure for claiming damages on the

Note: lf application is denied or not resolved


within said period, the TRO is deemed

attachment.

automatically

v acated.

The effectivity of TRO is not extendible. There


is no need of a judicial declaration to that

bond

is the same as that in

preliminary

Recovery of damages for irregular issuance of


injunclion, as where the main se is
dismissed and the injunction is dissolved, is
limited to the amount of the bond.

effect.

A TRO issued by the CA or any of its


members is effective for 60 days from

notice to the party sought to be


enjoined.
A TRO issued by the SC or a member
thereof is effective until further orders.

SECTION

9: WHEN FINAL

INJUNCTION

GRANTED

lf after the trial of the action it appears that the


applicant is entitled to have the act or acts
complained of permanently enjoined.

lnjury is considered .tRREPARABLE" if it is of

such constant and frequent recurrence that no

fair or reasonable redress can be had


therefore in court of law or where there is no
standard by which their amount can be
measured with reasonable accuracy (SSC
Bayona, G.R. No" L-ISSSS, May 30,i5A4.

v.

Granted at any stage of

an action prior to

the

judgment or final order


therein.

issued in the
in the case

judgment

permanently restraining

the defendant or
making the preliminary

Note: The triat court, the CA,

the
Sandiganbayan or the CTA that issued a writ
of preliminary injunction against a lower court,

!o"19, officer, or quasi-judiciat agency shail


decide the main case or petition iithin'six (6)

months from the issuance of the writ (As


Amended by A.M. No. 07-7-12-SC effeciive

SECTION 1. APPOINTMENT OF RECEIVER

Dec.27,2007).

SECTION

6.

actionffif'6,#ffp6#ked
GROUNOS FOR OBJECTION

TO, OR FOR MOTION OF DISSOLUTION


OF, INJUNCTION OR RESTRAINING

or
the
by

tbe)4suq$ i$ ipqTHFs.iFqw
Ty or

ORDER:

such

1. lnsufficiency;
2. On other grounds upon affidavits

3Sa

lost,

of the

party or person enjoined, which may be

op9s9d by the appticant atso


affidavits; and

3. lf

by

injunction would cause irreparable


damage to the person enjoined wirite the
applicant can be fully compensated for

It4

the
or
is

the
agreed

9m Fels Gollege ot Ltrb


2011 CENTRALIZED BAR OPERATIONS

3.

4.

SECTION

to aid execution;

SECTION

\I/hen appointment of receiver is the most

RECEIVER.

the property in litigation.

(BTRC2'MPD2|)

gonvenient

and feasible means of


preserving, administering or disposing of

Note: The property must be under litigation.

Purpose: For the preservation of the property


involved in the suit and to protect the rights of
all the parties under the direction of the court.

A receiver is a person appointed by the court


in behalf of all the parties to an action for the
purpose of preserving the property involved in
the suit and to protect the rights of all the
parties under the direction of the court (Mallari
v. CA, G.R. No. L-26467, Juty 15, 1981).

A receiver is not a representative party under


Rule 3 but a real party in interest, BUT he
cannot file a case without the consent of the
receivership court.

o
.

5.

After judgment, to preserve the property


during the pendency of an gppeal or to
dispose of it according to the judgment or

SERVICE OF COPIES OF

BONDS; EFFECT OF DISAPPROVAL

6.

GENERAL POWERS OF

Powerc of the Receiver lncludes:

1. Bring and defend, in such capacity,


actions in his own name;
2. Take and keep possession of the property
in controversy;
3.

4.

[eceive rents;

Qollect debts due to himself as receiver or

to the fund, property, estate, person, or


5.
6.
7.
8.

9.

corporation of which he is the receiver;


Sompound for and compromise the same;

flake transfers;

lay

outstanding debts;

pivide the money and other property that


shall remain among the persons legally
entitled to receive the same;

Generally to glg such acts respecting the


property as the court may authorize; and
10. lnvest funds in his hands, only by order of
the court upon the written consent of all
the parties.

Receivership, like injunction, may be the


principal action itself or just an ancillary
remedy.

Such appointment of the RTC, during the


perfection of an appeal, is covered by its
residual jurisdiction under Sec. 9 of Rule
41 , since this does not involve any matter
litigated by the appeal.

Note: This provisional remedy may

No action may be brought by or


against a receiver without leave of the
court which appointed him.

SECTION 7.'LIABILITY FOR REFUSAL OR

NEGLECT

TO DELIVER

PROPERTY TO

RECEIVER
be

resorted lo during the pendency of an appeal


or even after the judgment has become final
and executory.

A person who refuses or neglects to deliver a


property, within his control and which is the
subject of the action, to the receiver may be
punished for CONTEMPT and liable to the

SECTION 2. BOND ON APPOINTMENT OF


RECEIVER

SECTION 3. DENIAL OF APPLICATION OR


DISCHARGE OF RECEIVER

Receivership may be denied or lifted:

1. lf the appointment sought or granted is


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

SECTION
RECEIVER

4.

OATH AND BOND

OF

115

REMEDIAL LAW
CIVIL PROCEDURE

and may be recovered in a separate action


(De la Rosa & Co. v. De Borja, G.R. No. L28611, January 30, 1929).

d.
3.

Actual market value of the property.

Applicant must give a bond, executed to


the adverse party and double the value of
the property.

SECTION 3. ORDER

SECTION 1. APPLICATION

A writ of replevin must be applied for at the


commencement of the action or at any time
before the defendant files his answer, for
which reason there can be no replevin before
the appellate courts.

when the principal


action is recovery of

recovery of property is
only incidental to the

Gan be sought only


when defendant is in
actual possession of

May be resorted to
even if the property is

'in possession of a third

Cannot be availed of
when property is in
custodia legis.

Can be availed of even


if property is in
custodia legis.

SEGTION 4, DUTY OF THE SHERIFF


SECTION 5. RETURN OF THE PROPERTY

SEGTION

6. DISPOSITION OF

PROPERTY

BY SHERIFF

The sheriff shall retain the property for five (5)


days. Within such period, the adverse party
may object to the sufficiency of the applicant's

bond

or surety or he may file a

redelivery

bond.

After five (5) days and the adverse party faited


to object or his redelivery bond is insufficient,

the sheriff shall deliver the property to the


applicant.
DEFENDANT is ENTITLED to the return of the
property under a Writ of Replevin:
1. Seasonably posts a redelivery bond;
Plaintiff's bond is found to be insufiicient or
defective and is not replaced with proper
bond; or
Property is not delivered to the plaintiff for
any reason.

2.
3.
Note: There can

be no

replevin

and

preliminary aftachment in the same case


because the purposes are different. ln Rule

52, it is for security.


recovery of possession.

ln

Rute 60,

it is for

SECTION

7.

PROCEEDINGS WHERE
PROPERTY CLAIMED BY THIRD PERSON
Similar as in third-party ctaims in execution
and in aftachment.

SEGTION 2. AFFIDAVIT AND BOND

Procedure for the application for Replevin:


1. File an application at the commencement

Note: ln Secfion

14

of

Rute

5Z the affidavit

of the action or at any time before

2.

defendant answers.
Application must contain an affidavit.

The affidavit MUST SHOW that:


Applicant is the owner of the property
claimed, particularty describing it, or is
entitled to the possession thereof;
Property is wrongfully detained by the
adverse party;

a.

b.
c. Property has not been distrained or
for a tax assessment or a fine
' taken
pursuant to law, or seized
of execution or

and
116

under a writ
under custodia tegis;

of

the

in DOES
NOT

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2011 CENTRALIZED BAR OPERATIONS


the property, as they only hold the property

Note: Where the right to support is put in issue

subject to the finaljudgment in the action.

by the pleading or the fact from which the right

Surety's liability under the replevin bond


should be included in the final judgment to
prevent duplicity of suits or proceedings.

is in controversy or has not been established,


the court cannot grant support pendente lite
(Francisco v. Zandueta, G.R. No. L-43794
August 9, 1935).

Provisions of Secfion 20 of Rule 57 are


applicable not only to the replevin bond ol
the plaintiff but also to the redelrvery bond
posted by the defendantfor the lifting of

SECTION 2. GOMMENT

the writ.

SEGTION 4. ORDER

Note: The judgment may be in

the

SECTION 3. HEARING

Note:

lncludes "other forms

of

meaning medical attendance,

support",
housing,

ALTERNATIVE, i.e., for the detivery of the


property to the party entitled to it, or for the
value of the property in case the same cannot

cloth ing, education, etc.

be delivered plus damages.

SECTION 5. ENFORCEMENT OF ORDER

Replevin Bond

is

simply intended

to

indemnify the defendant against loss that he


may suffer by being compelled to surrender

the possession of the disputed

property

pending trial of the action.

Failure

to comply with an order granting

support pendente lite may warrant:

. The issuance of an
EXECUTION against

the

ORDER OF
non-complying

party; and

Note: A writ of replevin may be

. May
served

anywhere in the Philippines.

likewise make him liable for

contempt.

Note: Support pendente lite

is

INTERLOCUTORY, thus, the same may be


modified at any stage of the proceedings.

Support Pendente Lfie is an amount of

support provisionalty fixed by the court in favor


of the person or persons entifled thereto
during the pendency ol an action for support.

SECTION

6.

SUPPORT

Att. 345 RPC, in crimes against chastity, "(3)


SECTION 7. RESTITUTION

Where filed: lt is exclusively cognizable by a

compelled to

Family Court.

Remedies of party who was enoneously

1.

Except: ln criminal actions, where right to

CRIMINAL

ln every case to support the offspring."

Note: Under Sec/lon 4 of Rule 39, the


judgment in an action for support is
immediately executory.

IN

CASES

A
by

support arises by reason of crime and as long


as the civil aspect is tried together with it, the
RTC and MTC having jurisdiction may atso
issue this remedy.
SECTION 1. APPLICATION

At the commencement of the action or at any


time before judgment or final order.

This provisional remedy is availablg ONLY /n


an Action for Support, or where one of the
reliefs sought is Support for the Appticant

(Coquia

v.

Baftazar, G.R.

December 29, 1949).

No.

L-2942

r77

r.18

REMEDIAL LAW
CIVIL PROCEDURE

1.

To have the property


of the adverse party
attached as security
for the satisfaction of
judgment that may be
recovered in cases
falling under Sec. /,
Rule 57.

2.

To enable the court to


acquire jurisdiction
over the action by the
actual or constructive
seizure of the property
in those instances
where personal
service of summons
on the creditor cannot
be effected.

To require a party or a
court, agency or a person
to refrain from doing a
particular act or acts or to
require the performance of
a particular act or acts.

To place the property


subject of an action or
proceeding under the
control of a third party for
its preservation and
administration pendente
/ife or as an aid to
execution.

To recover possession of
personal property.

M
qws

ffief.

ffi
Personal and Real
Property

At the commencement of
the action or any time prior
to the entry of judgment.

Particular acUacts

At any stage prior to the


judgment or final order.

Personal and Real


Prooertv
At any time prior to
satisfaction of judgment.
Note: /f rnay be availed of
even afterjudgment
becomes final under Sec.
41 Rule39

To compel adverse party


to provide support while
action is pending in court.

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File affidavits and


applicant's bond.

File verified application


and applicant's bond; if
application is included in
the initiatory pleading, the
adverse party should be
served with summons
together with a copy of the
initiatory pleading and the
applicant's bond

File verifi ed application


and applicant's bond;
application may also be
included in initiatory
pleading in actions for
foreclosure of mortgage.

File affidavits and


applicant's bond.

File verified application;


bond not required,

Required.

Not required. May be


issyed ex parfe.

Courts where action is


pending, the CA or the
SC even if action is
pending in the lower court.

.
o
o
r

Sufficient cause of
aclion;
Case is covered by

Sec.l Rule 57;


No other sufficient
security for the claim
exists; and
Amount due to

Except: Great or
irreparable injury would
result/ extreme urgency
and applicant will suffer
grave injustice and
irreparable injury (Sec. 5
Rule 58).
Only the court where the
action is pending; Lower
court, CA or SC provided
action is pending in the
same court which issues
the injunction. Also with
Sandiganbayan and CTA.

.
.
r

Applicant is entitled to
the relief demanded;
Act/s complained of
would work injustice
to the applicant if not
enjoined; and
Acts sought to be

Not required. May be


issued ex parfe.

Court where action is


pending, the CA or the
SC even if action is
pending in the lower court.
Appellate court may allow
application for receivership
to be decided by the court

{3tr fu&Bfe

Applicant has interest


in the property or
fund, subject matter of
the action or
proceeding;
Properly or fund is in
danger of being lost
or removed or

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2011 CENTRALIZED BAR OPERATIONS
119

ffi#&rnot

entitled to

adverse

720

REMEDIAL

tAW

CIVIL PROCEDURE

property he is entitled
to recover is equal to
the sum which the
order of attachment is
grantbd.

violates applicant's
rights respec'ting the
subject of the action
or proceeding;
Threatened injury
incapable of
pecuniary estimation.

.
Appointment of
receiver is the most
convenient and
feasible means of
preserving,
administering or
disposing of the
properg in litigation.

When third-party claimant


makes an affidavit of his
title to the property or his
right to the possession
thereof, and serves such
affidavit to the sheriff and
a copy thereofto the
aftaching party, the sheriff
shall not be bound to keep
lhe property unless the
attaching party files a
bond approved by the
court to indemnify the
third-party claimant in a
sum NOT LESS THAN
THE VALUE OF THE

Property is not
distrained or taken for
a tax assessment or a
fine pursuant to law.

When third-party claimant


makes an affidavit of his
title.to the property or his
right to the possession
thereof, and serve such
affidavit to the sheriff and
a copy thereof to the
attaching party, the sheriff

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PROPERry bvied upon.


.

Claim for damages for the


taking or keeping the
property must be filed
within 120 days from filing
ofthe bond.
Bond executed to the adverse party in the amount fixed by the court to cover the costs
which may be adjudged to the adverse party and all damages that he may sustain by
reason of the granting of provisional remedy prayed for, if the court shall finally
adjudge that the applicant was not entitled thereto.

property to the
parg if such return

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payment to the adverse


party ofsuch sum as he
may recover from the

By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge of the
provisional remedy granieO Oy filing a counter-bond in an amount equal to that fix'ed by the court to the value of the
property if with reipect to a particular property to secure the payment of any judgment that the adverse party may
recover in the action.

Cash deposit may be


made in lieu of the
counter-bond.

Other grounds: improper


or irregular issuance or
enforcement or
insufficiency of bond.

Filing of counter-bond
made only upon showing
that the issuance or
continuance thereof would
cause ireparable damage
to the party or person
enjoined while the
applicant can be fullY
compensated for such
damages as he may
suffer; counter-bond alone
will not suffice to discharge
the injunction.

2 BOND requirement:
Bond filed by the
applicant; and
Bond filed by the
receiver.

lnsufficiency of the
application.

Appointment was
obtained without sufficient
cause.

1.
2.

Not applicable.

Amount of counter-bond
should also be double the

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2011 CENTRALIZED BAR OPERATIONS

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122

REMEDIAL LAW
CIVIL PROCEDURE

When judgment or final


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

r
r
.

.
Owner of the property attached must file before trial or before perfection of appeal or before judgment
becomes executory an application for damages.
Party who availed of provisional remedy and his surety or sureties must be notified, showing right to
damages and amount thereof.
Damages awarded only after proper hearing; included in judgment of the main case.

lf judgment of appellate court is favorable to the party against whom provisional remedy was effected:

.
r
.

Application must be filed with the appellate court before the judgment of the appellate court becomes
executory.
Appellate court may allow application to be heard and decided by the trial court.
lf bond or deposit given by the party availing of the provisional remedy be insufficieffi fail to
award.
Adverse party may recover damages in the same

action.

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Court shall order the


recipient to return the
amounts already
received with interest
from the dates of actual
payment.
Recipient may obtain
reimbursement from
the person legally
obliged to give support
(separate action must

ffiffiffirse

the