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NOTES IN CIVIL PROCEDURE

(Atty. T. Salvador III - Lecturer)


Jurisdiction
o MTCs (outside of MM):
1. Actions involving title to, possession of, or interest in real property the assessed value
of which is not exceeding PhP 20K; if it exceeds said amount, RTC.
2. Basic amount of claim not exceeding PhP 300K; if it exceeds said amount, RTC.
3. In maritime cases, the jurisdictional amount is not exceeding PhP 300K; if it exceeds
said amount, RTC.
4. In probate cases and estate cases, if the value of the estate is not exceeding PhP 300K;
if it exceeds said amount, RTC.
5. In proceedings subject to summary procedure, the jurisdictional amount is not
exceeding PhP 100K.
6. In small claims cases, the claim should not exceed PhP 100K.
7. Forcible entry and unlawful detainer cases (ejectment cases), regardless of the claim
of unpaid rentals.
o MeTCs (within MM):
1. Actions involving title to, possession of, or interest in real property the assessed value
of which is not exceeding PhP 50K; if it exceeds said amount, RTC.
2. Basic amount of claim not exceeding PhP 400K; if it exceeds said amount, RTC.
3. In maritime cases, the jurisdictional amount is not exceeding PhP 400K; if it exceeds
said amount, RTC.
4. In probate cases and estate cases, if the value of the estate is not exceeding PhP 400K;
if it exceeds said amount, RTC.
5. In proceedings subject to summary procedure, the jurisdictional amount is not
exceeding PhP 200K.
6. In small claims cases, the claim should not exceed PhP 100K.
7. Forcible entry and unlawful detainer cases (ejectment cases), regardless of the claim
for unpaid rentals.
o Can a grant of certiorari, prohibition, mandamus, quo warranto, injunction,
habeas corpus granted by a Manila RTC be enforced in Iligan City? No, it cannot
be enforced in Iligan City. Under BP No. 129, the orders of the RTC can only be effective
within the judicial district of the issuing court. But an order of attachment can be enforced
anywhere in the PH. Attachment is not included in the enumeration under BP No. 129.
o Can the Court of Appeals entertain an ordinary civil action? How about the
Supreme Court? No. Under the Rules of Court, the Court of Appeals and the Supreme
Court can only entertain original action on special civil actions on certiorari, prohibition,
mandamus, quo warranto, habeas corpus, habeas data, writ of amparo, and the like.
o For appellate jurisdiction to apply, would it be sufficient to file an appeal? No.
For appellate jurisdiction to apply, you have to file the appeal within the reglementary period
and you will have to pay the corresponding docket fees also within the reglementary period.
o What is jurisdiction? Jurisdiction is the authority or power to hear, try and decide a case.
Jurisdiction is conferred by law, and is determined by the allegations in a complaint or
information.

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1. This applies to both civil and criminal actions. The allegations in a complaint or
information help the Judge determine whether he or she has jurisdiction over the case
and can therefore act on it.
2. Without a law conferring jurisdiction, the courts are useless. When there is jurisdiction
conferred by law, the court through the Judges now have the power to hear, try, and
decide a case.
o How does the court acquire jurisdiction over the person of the plaintiff? By the
filing of the complaint and by payment of filing fees. Payment of filing fees is jurisdictional.
1. It is not simply the filing of the complaint or appropriate initiatory pleading, but 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 a reasonable time but in no case beyond the applicable prescriptive or
reglementary period. (Sun Insurance vs. Asuncion, 1989).
2. The same rule applies to permissive counterclaims, third party claims and similar
pleadings, which shall not be considered filed until and unless the filing fee prescribed
therefor is paid. The court may also allow payment of said fee within a reasonable time
but also in no case beyond its applicable prescriptive or reglementary period. (Id.)
3. 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 been left for
determination by the court, the additional filing fee therefor shall constitute a lien on
the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized
deputy to enforce said lien and assess and collect the additional fee. (Id.)
o You are to pay filing fees for permissive counterclaims, because for all intents and purposes,
a permissive counterclaim is independent of the principal action. It has no relationship at all
to the principal action.
o In 2004, Rule 141 was amended to include compulsory counterclaim in the payment of filing
fees. And then in the same year, the Supreme Court came up with a resolution suspending
Rule 141, specifically filing fees on compulsory counterclaims until today.
o Two (2) instances where the lien on the judgment award can be applied:
1. Where there is incorrectly assessed or paid filing fee;
2. Where the court has discretion to fix the amount of the award, i.e. where the court
awards damages which were not prayed for.
o If you relied in good faith, on a computation of the Clerk of Court, and based on that
computation, you paid filing fees, the court has acquired jurisdiction. And if by chance, it is
later discovered that it is incorrect, or deficient, there will be a lien on the judgment award
because it was incorrectly assessed or paid. Jurisdiction is acquired because it was not the
fault of the party.
o Do you need to pay filing fees for the amount of interest which accrued at the
time of the filing of the complaint? Yes, because it has already accrued. However, in
cases where the court awards interest to the prevailing party, interest which accrued during
the pendency of the case will be a lien on the judgment award.

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o Do you need to pay filing fees for a supplemental complaint? Yes. While the court
already acquired jurisdiction on the principal complaint, you need to pay filing fees for the
supplemental complaint. Otherwise, the court cannot act on it.
1. There is no waiver on filing fees on the part of the parties (inaction, failure to object,
etc.). Even the lower courts cannot waive the filing fees, only the Supreme Court can
waive the payment of filing fees.
o If your case is classified as incapable of pecuniary estimation, the filing fee is a fixed
amount. But if it involves actions on title to, possession of, or interest over real property, you
will have to pay filing fees.
1. In actions on title to, possession of, or interest over real property, for purposes of
jurisdiction, the threshold amounts are PhP 20K and PhP 50K. But under Rule 141, if
the action is capable of pecuniary estimation, and it involves real property, it will be
based not on the assessed value (AV), but on the fair market value (FMV) or zonal
valuation or, in the absence of which, based on the allegations of the complaint.
2. Jurisdiction over actions for partition depends on what is to be partitioned. If the
property to be partitioned is a real property, the basis is the assessed value.
o How do you determine jurisdiction in terms of the claim? You determine it based
on the amount of the claim, exclusive of damages, interest, attorneys fees, and costs of suit.
However, where the claim is purely for damages, jurisdiction is determined by the amount of
damages claimed (SC Circular No. 09-94).
o How does the court acquire jurisdiction over the person of the defendant?
Through service of summons under Rule 14; or voluntary appearance/submission to the
jurisdiction of the court.
1. The general rule is that the question of jurisdiction could be raised at any time even on
appeal. An exception to this rule is estoppel on the question of jurisdiction (Tijam
vs. Sibonghanoy, 1968).
o Declaratory Relief under Rule 63 is covered only by the first paragraph. The second
paragraph refers to Other Similar Remedies, i.e. quieting of title or removal of cloud
therefrom, reformation of an instrument, and consolidation of ownership.
1. The case of Sps. Sabitsana vs. Muertegui (2013) treated Other Similar Remedies
under Rule 63 as a Declaratory Relief, and for that reason, it is the RTC that has
original jurisdiction. The ruling in this case is more attuned to the civil code provision.

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RULE 2: Cause of Action


o Can a special civil action have a cause of action? As a general rule, only ordinary civil
actions have a cause of action, i.e. breach or violation of ones right. An exception is an
ejectment case - a special civil action which has a cause of action.
o When can we say that there is a criminal action? An action is considered to be a
criminal action when the State prosecutes, i.e. when an information is filed with the court.
1. When an information is filed with the Office of the Prosecutor (I.S. No. or Investigation
Slip No.), such is only for purposes of preliminary investigation, if it is required.
o The Rules of Court will not apply in cadastral cases, land registration case, insolvency cases,
naturalization proceedings, and election cases because these proceedings have their own
rules.
1. Although the laws that created the rule states that the court of original jurisdiction will
be the courts of law, the rules that they will follow will be the rules provided under
their respective laws.
o When you harp on the liberal application of the rules, it means that you did not apply the rule
to the letter. The court will not entertain your plea of liberal application unless it is
compelling; that there is a good reason why the court should give it; and is left to the sound
discretion of the court.
o One suit for every cause of action. What you count is the breach or the violation of the
right. There can be as many causes of action as you want in a single case. What is prohibited
is splitting a single cause of action.
o Is the joinder of causes of action mandatory? Joinder of causes of action, if allowable,
is permissive, and not mandatory.
o Joinder of Causes of Action:1
1. If there are multiple parties, you will have to apply the rule on permissive joinder of
parties (Rule 3, Sec. 6),2 i.e. it must arise from the same transaction or series of
transaction, whether jointly, severally, or in the alternative, or common fact or law.
2. If there is only one party, it need not arise from the same transaction or series of
transaction. You can join your causes of action in one complaint.
3. In joinder of causes of action, the option to join lies with the plaintiff; it is without the
discretion of the court because there is no pending cases yet. The courts discretion
Rule 2, Sec. 5. Joinder of causes of action. A party may in one pleading assert, in the alternative or otherwise, as many
causes of action as he may have against an opposing party, subject to the following conditions:
a. The party joining the causes of action shall comply with the rules on joinder of parties;
b. The joinder shall not include special civil actions or actions governed by special rules;
c. Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may
be allowed in the RTC provided one of the causes of action falls within the jurisdiction of said court and the venue lies
therein; and
d. Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be
the test of jurisdiction.
1

Rule 3, Sec. 6. Permissive joinder of parties. All persons in whom or against whom any right to relief in respect to or
arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative,
may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question
of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders
as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings
in which he may have no interest.

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comes in when a party asks for consolidation because the cases are now pending before
the court.
4. You can join a personal and a real action in one complaint, but the joinder of the
causes of action is dictated by the case falling within the jurisdiction of the RTC.
o Can you join an ordinary action with a special civil action in one complaint? How
about a special civil action with another special civil action? No. If the rules are
covered by different rules, you cannot join them.
o Misjoinder of causes of action: A misjoinder of the causes of action will not lead to the
dismissal of the case. Filing fees already paid will be forfeited. There is no refund of filing fee.
o Totality Rule: It is the sum of all your monetary claims; recovery of sums of money. You
can institute one case for each cause of action; but you can also join all causes of action, in
which case jurisdiction will be determined by the total amount of the claim.
o Splitting of Cause of Action3
1. For all intents and purposes, splitting a cause of action is forum-shopping.
2. Forum-shopping can be committed in three (3) ways:
a. There are multiple cases based on the same cause of action, with the same
prayer, the previous case not having been resolved (litis pendencia);
b. There are multiple cases based on the same cause of action, with the same
prayer, the previous case having been finally resolved (res judicata);
c. There are multiple cases based on the same cause of action, but with different
prayers (splitting cause of action).
3. Splitting cause of action is not a ground to dismiss. The proper ground under Rule 16
in a Motion to Dismiss4 is res judicata or litis pendencia.
o Can you amend a case or complaint when at the outset, there is no cause of
action? No. When at the outset there is no cause of action, you cannot amend the case
because in the first place there is no case to speak of.
o Can you amend a complaint to substantially alter the cause of action? Yes. In a
case, the Supreme Court held that even if the cause of action is substantially altered, for as
long as there is a cause of action, amendment is left to the discretion of the court. What is
important is there is a cause of action.

Rule 2, Sec. 4. Splitting a single cause of action; effect of. If two or more suits are instituted on the basis of the same
cause of action, the filing of one (litis pendencia) or a judgment upon the merits (res judicata) in any one is available as a ground
for the dismissal of the others. (Emphasis and annotations supplied).
3

Rule 16, Sec. 1. Grounds for a Motion to Dismiss. Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:
a. That the court has no jurisdiction over the person of the defending party;
b. That the court has no jurisdiction over the subject matter of the claim;
c. That venue is improperly laid;
d. That the plaintiff has no legal capacity to sue;
e. That there is another action pending between the same parties for the same cause;
f.
That the cause of action is barred by a prior judgment or by the statute of limitations;
g. That the pleading asserting the claim states no cause of action;
h. That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished;
i.
That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds;
j.
That a condition precedent for filing the claim has not been complied with.

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RULE 3: Parties to Civil Actions


o Requisites for Permissive Joinder of Parties:
1. The right to relief arises from the same transaction or series of transactions;
2. There is a question of fact or law common to all plaintiffs or defendants;
3. Such joinder is not otherwise prohibited by the provisions of the Rules.
o Real Party-in-Interest5
1. You can only be a party to a case if you are the real party-in-interest. Whether you be
the plaintiff, or the defendant, you should be the real party-in-interest.
2. Legal standing or locus standi is different from the concept of real party-ininterest. Locus standi is a concept in Political Law. It means that by reason of some
governmental act, you suffer some personal injury.
o Can a natural person sue and be sued? Under what capacity (basis)? Yes. Capacity
is that the person is of legal age. That the person instituting the case has legal capacity.
1. In case of a minor, i.e. a person not of legal age, or an incompetent person should
be assisted by the father, mother, guardian, or if he has none, a guardian ad litem
appointed by a court.
2. In case of supervening incapacity6, the case will continue. The incapacitated
person shall be assisted by his legal guardian or guardian ad litem appointed by the
court.
3. In case of spouses as parties, the husband (H) and wife (W) shall sue or be
sued jointly, except as provided by law. The general rule is that both spouses must be
impleaded because the case involves a common interest of the H and W.
a. Exceptions: In cases involving personal actions such as negligence, tortious
conduct, practice of profession, separate properties of the spouses.
4. In case of representatives7 as parties, the law requires that the name of the
beneficiary be indicated in the title of the case.

Rule 3, Sec. 2. Parties in interest. A real party in interest is the party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest.
5

Rule 3, Sec. 18. Incompetency or incapacity. If a party becomes incompetent or incapacitated, the court, upon motion
with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal
guardian or guardian ad litem.
6

Rule 3, Sec. 3. Representatives as parties. Where the action is allowed to be prosecuted or defended by a representative
or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the
real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party
authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be
sued without joining the principal except when the contract involves things belonging to the principal.
7

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5. In case of death of a party, check the facts of the problem as to whether who died,
and what the nature of the action is, because these will determine whether Sec. 168
(substitution), or Sec. 209 of Rule 3 will apply.
a. In Sec. 16, death refers to the death of any party as long as the nature of the
action is that which would not be extinguished by reason of death, and it does
not involve a sum of money.
b. Sec. 16 is substitution by reason of death. This is a matter of due process.
Even if the process of substitution is not followed, but the heirs actively
participated and submitted themselves to the jurisdiction of the court, the
requirement of due process is faithfully satisfied. The proceedings cannot be
declared null and void. The proceedings will only be declared null and void if
due process was not served.
c. If there is no court order for substitution, or if the lawyers notice was defective,
there is no substitution. The general rule therefore is that if the process for
substitution in Sec. 16 (the two steps: duty of the counsel, and duty of the court)
were not followed, there will be no successful substitution; and because there is
no successful substitution, the proceedings are null and void because due
process was not observed.
i.

As to the persons (sons of the deceased party) who actively participated,


who presented their evidence, the judgment is valid. But as to the
deceased father where there was no proper substitution, the judgment is
null and void. It does not mean that if the sons were in the case, the
interest of the deceased father was actively protected.

ii.

Where there was no order of substitution, but the heirs actively


participated in the proceedings, the proceedings are valid, because the
due process requirement was faithfully satisfied.

d. Sec. 20 will apply only under these conditions: the defendant dies, and the
nature of the action is a sum of money.
i.

Sec. 20 has a very narrow application. If it was the plaintiff who died,
and it is a money claim, Sec. 20 will not apply. It is Sec. 16 which will
apply.

8
Rule 3, Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death or the fact thereof, and
to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a
ground for disciplinary action.

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty
(30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the
specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or
administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.
Rule 3, Sec. 20. Action on contractual money claims. When the action is for recovery of money arising from contract,
express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time
of such death, it shall not be dismissed but shall instead be allowed to continue until the entry of final judgment. A favorable
judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims
against the estate of a deceased person.
9

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ii.

This is not a case of substitution. If the case is for collection of sum of


money, and the defendant dies, the case will continue as against the
estate (of the defendant).

iii.

Provisional remedies availed of (e.g. injunction, attachment) before the


death of the defendant will continue to survive despite the death (of the
defendant) because the action continues to survive. What has changed is
just the party, i.e. from defendant to estate of the defendant.

6. In case of public officers10 who die, resign, or otherwise cease to hold office during
the pendency of an action in which such public officer is a party, the law requires that
within thirty (30) days from the time that a successor has been named or appointed,
there should be an indication or showing whether the successor will adopt or continue
to adopt the act of his predecessor; and for that reason, he should be given notice and
opportunity to be heard. This is the essence of due process.
a. If the successor adopts the acts of his predecessor, the case instituted by or
against the predecessor continues. This is a case of substitution.
7. In case of transfer of interest11, and the transferor dies during the pendency of the
action, the transferee cannot be the substitute because death has already set in.
Transfer of interest can only apply if both the transferor and the transferee are alive.
a. What will apply in case the transferor dies during the pendency of the action
even if he has transferred his interest, is Rule 3, Sec. 16.
b. In Jocson v. Court of Appeals (1990), the court held that the BPI is bound by
the decision of the trial court being the transferee pendente lite of the original
defendant therein, despite the fact that it had not been substituted for the
original defendant and had not been notified of the proceedings against it.
(Heritage Park vs. CIAC, 2008)
c. A transferee pendente lite stands in exactly the same position as its
predecessor-in-interest, the original defendant, and is bound by the
proceedings had in the case before the property was transferred to it. It is a
proper but not an indispensable party as it would in any event be bound by the
judgment against his predecessor. This would follow even if it is not formally
included as a defendant through an amendment of the complaint. (Id.)
o Can a domestic corporation sue and be sued? Under what capacity (basis)? Yes.
Capacity is that it is duly organized and incorporated under the rules whether of the PH, or
in the country where it was organized.
1. In every pleading, you will have to state capacity - of an individual, of legal age; of a
corporation, that they are duly organized under the law by which they are formed.

Rule 3, Sec. 17. Death or separation of a party who is a public officer. When a public officer is a party in an action in
his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and
maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted
by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it
and that the successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a substitution
is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application
therefor and accorded an opportunity to be heard.
10

11
Rule 3, Sec. 19. Transfer of interest. In case of any transfer of interest, the action may be continued by or against the
original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action
or joined with the original party.

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2. If you would like to make an issue out of capacity, you will have to state it, or you will
have to deny it, and you will have to identify the particulars why you oppose the
capacity; and if there are documents, you will have to attach the documents.
o Can a foreign corporation sue in the PH?
1. Where the foreign corporation is licensed and has submitted to the jurisdiction of the
court, and is doing business in the PH, such foreign corporation can sue and be sued
in the PH.
2. Where the foreign corporation is not licensed and has not submitted to the jurisdiction
of the PH law, but it is doing business in the PH, it cannot sue in the PH, but it can be
sued.
a. Exception: If the domestic corporation or individual benefitted from his
relationship with the foreign corporation which is not licensed to do business
in the PH, he is estopped from raising the abovementioned defense. Hence,
such foreign corporation can sue in the PH.
3. Where the foreign corporation is not licensed, but has only dealt with a domestic
corporation or a Filipino individual on an isolated transaction, i.e. not in the regular
or ordinary course of business, such foreign corporation can sue and be sued in the
PH.
o Can a non-juridical12 entity sue? No, it cannot institute an action because it has no
juridical existence, but the individuals comprising the non-juridical entity can sue.
1. Can it be sued? Yes it can be sued. This is for the protection of the public because
the public was made to believe that they are dealing with a juridical entity, but the
truth is they are not. If you sue a non-juridical entity, it is the duty of its members to
disclose in their answer, their true names and addresses.
2. How do you serve summons?13 You serve the summons to any one of the members
of the non-juridical entity or someone in charge of its office.
3. A judgment14 against the non-juridical entity will be a judgment against its individual
members assuming they were made parties to a case, not against the non-juridical
entity because it has no separate juridical existence.
o Entities authorized by law: Labor organizations; Political parties; Estate.
o Indispensable and Necessary Parties
1. An indispensable party is someone who should be impleaded in order to have a final
determination of the case. If you dont implead an indispensable party, any judgment
will be null and void. It is the duty of the court to stop the proceedings if it identifies
Rule 3, Sec 15. Entity without juridical personality as defendant. When two or more persons not organized as an
entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly
known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed.

12

13
Rule 14, Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without
juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all
the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in
such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been
severed before the action was brought.

Rule 36, Sec. 6. Judgment against entity without juridical personality. When judgment is rendered against two or
more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known.
14

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that the indispensable party was not impleaded, because it is useless to proceed with
the case.
a. If the court orders that an indispensable party be impleaded, but despite the
order of the court, the indispensable party was not impleaded, the court should
dismiss the case.
b. In an action for judicial partition, a co-owner of a property is an indispensable
party. Under the Rules of Court, partition cannot proceed because an
indispensable party is not included.
2. A necessary party should be impleaded in order to have a complete determination or
settlement of the claim subject of the case.
a. If a necessary party is not impleaded, there can still be a valid judgment, unlike
in the case where an indispensable party is not impleaded, in which case there
will be no valid judgment.
o Can you still proceed with the non-impleaded necessary15 party?
1. If the court ordered that the necessary party be impleaded, and such order was not
followed, there will be waiver of claims against the necessary party.
2. But if there was no order from the court to implead the necessary party, that is without
prejudice to any action against the necessary party.
3. What is crucial here is the order from the court requiring you to implead the
necessary party.
o A class suit16 requires that there exists a common or general interest; that the parties are so
numerous that it is impracticable to bring all the parties to court; and that there is adequacy
of representation, i.e. whether the interests of the named party is co-extensive with the
interests of the other members of the class considering the proportion of those made a party
as it bears to the total membership of the class.
1. Where the interests of the plaintiffs and the other members of the class they seek to
represent are diametrically opposed, the class suit will not prosper. (Banda vs.
Ermita, 2010).
2. The mere fact that the complaint says that it is a class suit does not make it a class
suit. What makes it a class suit is that it satisfies the requirement of law under Rule 3,
Sec. 12, and likewise satisfies the requirement of adequacy of representation.
3. If there is diversity of interests among the members of a class, there is no class suit.
Once the common or general interests tweak, there is diversity. Hence, no class suit
will prosper.

15
Rule 3, Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim is asserted
a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court
find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his
person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver
of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action,
and the judgment rendered therein shall be without prejudice to the rights of such necessary party.
16
Rule 3, Sec. 12. Class suit. When the subject matter of the controversy is one of common or general interest to many
persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently
numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party
in interest shall have the right to intervene to protect his individual interest.

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o Who is an indigent party? - There are two (2) definitions of an indigent party under Rule
3, Sec. 21, and under Rule 141, Sec. 19.
1. Rule 3, Sec. 21: A party may be authorized to litigate his action, claim or defense as
an indigent if the court, upon an ex parte application and hearing, is satisfied that the
party is one who has no money or property sufficient and available for food, shelter
and basic necessities for himself and his family.
2. If the applicant for exemption meets the salary and property requirements under
Section 19 of Rule 141, then the grant of the application is mandatory. On the other
hand, when the application does not satisfy one or both requirements, then the
application should not be denied outright; instead, the court should apply the
"indigency test" under Section 21 of Rule 3 and use its sound discretion in determining
the merits of the prayer for exemption. (Sps. Algura vs. LGU of Naga City, 2006).
3. Under the provision of the Rules, there are two (2) benefits of being an indigent, i.e.
exemption from payment of docket fees (which will be a lien on the judgment award
in case of a favorable decision), and entitlement to the TSN.
o Tests of Indigency (Rule 141, Sec. 19): For an applicant for legal aid, the combined
means and merit tests shall be used to determine his/her eligibility:
1. Means Test - This test shall be based on the following criteria:
a. The applicant and that of his immediate family must have a gross monthly
income that does not exceed an amount double the monthly minimum wage of
an employee in the place where the applicant resides; and
b. He does not own real property with a FMV as stated in the current tax
declaration of more than PhP 300K.
2. Merit Test A case shall be considered meritorious if an assessment of the law
and evidence at hand discloses that the legal service will be in aid of justice or in the
furtherance thereof, taking into consideration the interests of the party and those of
society. A case fails this test if, after consideration of the law and evidence presented
by the applicant, it appears that it is intended merely to harass or injure the opposite
party or to work oppression or wrong. [A.M. No. 08-11-7-SC (IRR), Art. IV, Sec. 3]
o The PAO has a different basis in determining indigents. What Sec. 21 of Rule 3 refers to is the
determination of the court on who is to be an indigent; i.e. who is exempt from payment of
filing fees. The determination of an indigent for purposes of being represented by the PAO is
different this is for purposes of representation.
o Can a juridical entity claim that it is an indigent? No, the courts cannot grant to
foundations like the Good Shepherd Foundation, Inc. the same exemption from payment of
legal fees granted to indigent litigants even if the foundations are working for indigent and
underprivileged people. (Re: Query of Mr. Roger C. Prioreschi Re: Exemption from Legal and
Filing Fees of the Good Shepherd Foundation, Inc., A. M. No. 09-6-9-SC).
1. The clear intent and precise language of the provisions of the Rules of Court on
indigent parties indicate that only a natural party litigant may be regarded as an
indigent litigant. The Good Shepherd Foundation, Inc., xxx is a juridical person. As a
juridical person, therefore, it cannot be accorded the exemption from legal and filing
fees granted to indigent litigants. That the Good Shepherd Foundation, Inc. is working
for indigent and underprivileged people is of no moment. Clearly, the Constitution has
explicitly premised the free access clause on a persons poverty, a condition that only
a natural person can suffer. (Id.)

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RULE 4: Venue
o Can venue be a subject of waiver? Yes. Venue can be waived. It can be the subject of an
agreement of the parties, while jurisdiction, on the other hand, being conferred by law cannot
be subject of an agreement.
1. The court cannot dismiss the case motu proprio on the ground of improper venue,
because venue is waivable. If a party does not object to the improper venue either in a
motion to dismiss or in the answer, such ground for objection is deemed waived.
o Can the venue of real actions be stipulated upon by the parties? Yes. Rule 4, Sec. 4
provides that where the parties have validly agreed in writing before the filing of the action
on the exclusive venue thereof, the rule on venue of actions will not apply. The agreement of
the parties on venue prevails, most especially if there are words of exclusivity.
1. When there are words of exclusivity in the stipulation on agreement, it excludes all
other venues, even those provided for by law. The agreement prevails. In the absence
of words of exclusivity, the venue provided in the contract is only in addition to what
is provided for by law.
2. If there is a specific provision of law which provides for the venue of the action, such
provision shall prevail over the provisions of Rule 4.
o Venue in personal actions17 is dictated by the residence (not domicile) of the parties. In
civil procedure, residence refers to the place where the party is physically present.
o Venue in cases against a non-resident defendant:18
1. In a personal action, plaintiff may institute the action where the plaintiff or principal
plaintiff resides; or where the defendant is found at the option of the plaintiff;
2. In case where the personal status of the plaintiff is involved, the plaintiff may institute
the action in the place where he resides; and
3. Where the defendant-owner of a real property is not found in the PH, the case
involving the property of the non-resident defendant may be instituted in the place
where the property is located or found.

Rule 4, Sec. 2. Venue of personal actions. All other actions may be commenced and tried where the plaintiff or any of
the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident
defendant where he may be found, at the election of the plaintiff.

17

Rule 4, Sec. 3. Venue of actions against non-residents. If any of the defendants does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines,
the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion
thereof is situated or found.
18

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RULE 5: Uniform Procedure in Trial Courts


o What are the procedures to be followed in the first-level courts? The procedures to
be followed are Ordinary Procedure, i.e. the procedure under the Rules of Court; Rules on
Summary Procedure; and Rules on Small Claims.
o The general rule is that no petition for relief from judgment nor a special civil action of
certiorari, prohibition, or mandamus arising from cases covered by the Revised Rule on
Summary Procedure may be filed with a superior court. The exceptions are as follow:
1. In view of the unusual and peculiar circumstances of this case, unless some form of
relief is made available to Magdato, the grave injustice and irreparable injury that
visited him through no fault or negligence on his part will only be perpetuated. Thus,
the petition for relief from judgment which he filed may be allowed or treated, pro hac
vice, either as an exception to the rule, or a regular appeal to the RTC, or even an action
to annul the order (decision) of the MCTC of 20 September 1993. (Bayog vs. Natino,
1996)
2. In situations wherein a summary proceeding is suspended indefinitely, a petition for
certiorari alleging grave abuse of discretion may be allowed. Because of the
extraordinary circumstances in this case, a petition for certiorari, in fact, gives spirit
and life to the Rules on Summary Procedure. A contrary ruling would unduly delay the
disposition of the case and negate the rationale of the said Rules. (Go vs. CA, 1998).
o Jurisdiction over forcible entry and unlawful detainer cases falls on the MeTCs, the MTCCs,
the MTCs, and the MCTCs. Since the case before the MTCC was an unlawful detainer case, it
was governed by the Rules on Summary Procedure. The purpose of the Rules on Summary
Procedure is to prevent undue delays in the disposition of cases and to achieve this, the filing
of certain pleadings is prohibited, including the filing of a motion for reconsideration.
However, the motion for reconsideration that petitioners allege to be a prohibited pleading
was filed before the RTC acting as an appellate court. The appeal before the RTC is no longer
covered by the Rules on Summary Procedure. The Rules on Summary Procedure apply before
the appeal to the RTC. Hence, respondents motion for reconsideration filed with the RTC is
not a prohibited pleading. (Macadangdang vs. Gaviola, 2009).
o Is the failure to refer the matter to barangay conciliation waivable? Yes. Under
Sec. 1 of Rule 9, the only grounds which are not waivable are lack of jurisdiction over the
subject matter, litis pendencia, res judicata, and prescription (statute of limitations). Prior
barangay conciliation is a condition precedent, and for that reason it is waivable.
o Can the court, on its own, dismiss a case if it finds on the record that the action
has already prescribed? Yes, the court can dismiss a case motu proprio on the ground of
prescription.

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RULES 6 (Kinds of Pleadings), 7 (Parts of a Pleading), and


8 (Manner of Making Allegations in Pleadings)
o What should a complaint contain? The complaint should state the claim(s) or the
cause(s) of action. It should make a brief and concise statement of ultimate facts based on the
claim or cause of action, devoid of evidentiary matters. Presentation of evidence (evidentiary
matters) should be made in the course of the trial.
o Do you need to attach a document to the complaint considering the matters
which should be contained in the complaint? Yes, if the action is based on an
actionable document. You have to allege the existence of the actionable document and append
or attach it either by stating its substance and attaching a copy or the original thereof in the
complaint, or you copy or reproduce the same in the body of the pleading. However, in
practice, whether you state the substance or reproduce the body of the document in the
pleading, you always attach a copy.
o An answer specifically denies the allegations of the complaint. However, a defense could be
a negative defense, where you specifically deny the claim, or an affirmative defense, where
though you hypothetically admit the material allegations (basis of the claim) of the complaint,
it will nevertheless prevent or bar recovery.
1. An affirmative defense could be any ground for as long as it would prevent or bar
recovery, unlike in a motion to dismiss, which grounds are limited to those provided
for under Rule 16.
2. In the case of Sps. Mongao vs. Pryce Properties Corporation (2005), the court held
that: An answer may allege affirmative defenses which may strike down the plaintiffs
cause of action. An affirmative defense is one which is not a denial of an essential
ingredient in the plaintiffs cause of action, but one which, if established, will be a good
defense, i.e. an "avoidance" of the claim. Affirmative defenses include fraud, statute
of limitations, release payment, illegality, statute of frauds, estoppel, former recovery,
discharge in bankruptcy, and any other matter by way of confession and avoidance.
3. The court further held that: Allegations presented in the answer as affirmative
defenses are not automatically characterized as such. Before an allegation qualifies as
an affirmative defense, it must be of such nature as to bar the plaintiff from claiming
on his cause of action. (Id.)
4. If you will avail of an affirmative defense which is not a ground for a motion to dismiss
under Rule 16, you must file an answer with an affirmative defense, you dont file a
motion to dismiss.
o What is an answer ex abudanti ad cautelam? An answer ex abudanti ad
cautelam is an answer filed with extreme caution. Ex abudanti cautela means "out of
abundant caution" or "to be on the safe side." It is filed if there was a previous motion to
dismiss that was denied and such denial was elevated to the next level court on a petition
for certiorari, and there is yet no preliminary injunction.
1. The basic rule today is that in the absence of a preliminary injunction or a temporary
restraining order, even if you file a petition for certiorari, the proceedings shall not
be stayed or suspended. For this reason, once your motion to dismiss is denied, your
reglementary period starts to run it is possible that you will be declared in default.
This is why one files an answer ex abudanti ad cautelam so that the defendant
cannot be declared in default.

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o Is an answer ex abudanti ad cautelam an answer? Yes, in the case of Rosete vs.


Lim (2006), the court held that an answer ex abudanti cautela does not make an answer less
of an answer.
1. The court further held that: A cursory look at the answers filed by petitioners shows
that they contain their respective defenses. An answer is a pleading in which a
defending party sets forth his defenses and the failure to file one within the time
allowed herefore may cause a defending party to be declared in default. Thus,
petitioners, knowing fully well the effect of the non-filing of an answer, filed their
answers despite the pendency of their appeal with the Court of Appeals on the denial
of their motion to dismiss. (Id.)
o What is a negative pregnant? It is a denial which is pregnant with an admission, that in
the course of your denying it, youre practically admitting the assertions of the complaint.
o Are there specific denials in an Answer? Yes. Under Rule 8, Sec. 1019, there are three
(3) kinds of specific denials: specific denial, qualified denial, and lack of knowledge or
information to form a belief as to the truth thereof, i.e. you really have no knowledge.
1. The negative and affirmative defenses are the defenses, your basic defenses. The
specific denials under Rule 8, Sec. 10 are denials of specific allegations.
2. If the fact is within your knowledge and competence, you have to deny it or admit it.
Otherwise, if you use lack of knowledge or information to form a belief as to the truth
thereof, that amounts to an admission.
o What is a specific denial? In the case of PNB vs. CA (2004), the court held that: A denial
is not made specific simply because it is so qualified by the defendant. A general denial does
not become specific by the use of the word specifically."
1. When matters of whether the defendant alleges having no knowledge or information
sufficient to form a belief are plainly and necessarily within the defendants knowledge,
an alleged ignorance or lack of information will not be considered as a specific denial.
(Id.)
2. Section 11, Rule 8 of the Rules also provides that material averments in the complaint
other than those as to the amount of unliquidated damages shall be deemed admitted
when not specifically denied. Thus, the answer should be so definite and certain in its
allegations that the pleaders adversary should not be left in doubt as to what is
admitted, what is denied, and what is covered by denials of knowledge as sufficient to
form a belief. (Id.)
o How do you specifically deny an actionable document? The requirement of law is
that you specifically deny (the allegation based on an actionable document) under oath, i.e.
you must declare under oath that you did not sign the document or that it is otherwise false
or fabricated.
1. When respondent merely stated in his Answer was that the signature appearing at the
back of the promissory note seems to be his, and that respondent reiterated these
allegations in his denial under oath, stating that the promissory note sued upon,
assuming that it exists and bears the genuine signature of herein defendant, the same
19
Rule 8, Sec. 10. Specific denial. A defendant must specify each material allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a
defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only
the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material
averment made in the complaint, he shall so state, and this shall have the effect of a denial.

jjsummer&rain#foursisons2015-0015

does not bind him and that it did not truly express the real intention of the parties,
respondents denials do not constitute an effective specific denial as contemplated by
law. (Permanent Savings vs. Velarde, 2004).
2. In the early case of Songco vs. Sellner (1917), the court expounded on how to deny the
genuineness and due execution of an actionable document, viz.: This means that the
defendant must declare under oath that he did not sign the document or that it is
otherwise false or fabricated. Neither does the statement of the answer to the effect
that the instrument was procured by fraudulent representation raise any issue as to its
genuineness or due execution. On the contrary such a plea is an admission both of the
genuineness and due execution thereof, since it seeks to avoid the instrument upon a
ground not affecting either.
o Why does the law require specific denial under oath of actionable documents
that if you fail to specifically deny it under oath, it is considered admitted? It is
considered admitted in order to dispense with authentication. You cut short the process of
trial because you do not need to authenticate it anymore. It is as if you stipulated on the
actionable documents genuineness and authenticity.
o A reply is not a mandatory pleading. It is filed only to meet the new matters raised in
an answer; but even though new matters are raised in an answer, and you did not file a reply,
the new matters are deemed as controverted, i.e. disputed.
o Compulsory and Permissive Counterclaims
1. A compulsory counterclaim necessarily arises from the principal action. A
compulsory counterclaim set up in the answer is not an initiatory or similar pleading.
The initiatory pleading is the plaintiffs complaint. A respondent has no choice but to
raise a compulsory counterclaim the moment the plaintiff files the complaint.
Otherwise, respondent waives the compulsory counterclaim. In short, the compulsory
counterclaim is a reaction or response, mandatory upon pain of waiver, to an initiatory
pleading which is the complaint. (Agana vs. Lagman, 2005).
2. The compelling test of compulsoriness characterizes a counterclaim as compulsory if
there should exist a logical relationship between the main claim and the counterclaim.
There exists such a relationship when conducting separate trials of the respective
claims of the parties would entail substantial duplication of time and effort by the
parties and the court; when the multiple claims involve the same factual and legal
issues; or when the claims are offshoots of the same basic controversy between the
parties. (Lafarge Cement vs. Continental Cement, 2004).
3. A permissive counterclaim is a claim independent of the principal action. There is no
logical relationship between the main claim and the permissive counterclaim; the
court can only cover a counterclaim within its jurisdiction, i.e. within the jurisdictional
amount.
o Do you need a Certificate of Non-Forum Shopping for a compulsory
counterclaim? For a permissive counterclaim?
1. In a compulsory counterclaim, you do not need a Certificate of Non-Forum
Shopping. It is not an initiatory pleading. It is a necessary offshoot of the main claim.
2. In a permissive counterclaim, however, such certificate is needed because, for all
intents and purposes, a permissive counterclaim is a separate action.

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o Can the plaintiff dismiss his complaint? Yes, that is clear under Rule 17. There are two
(2) possible scenarios on the dismissal of a plaintiff. These are as follow:
1. The plaintiff, upon filing his action and before there is yet an answer, can decide to
dismiss it. This is dismissal as a matter of right,20 and for this reason the dismissal
can only be initiated upon notice. What happens to the counterclaim? Since there is
no answer yet, then there is no counterclaim.
2. The plaintiff, upon motion, decides to dismiss his complaint after the defendant has
filed his answer. This dismissal is not as a matter of right, but subject to the
discretion of the court. What happens to the counterclaim? The counterclaim will
survive and will have to stand based on its own merits.
o What happens to the counterclaim if the principal action was dismissed? The
counterclaim survives. It will have to stand based on its own merits.
1. In the case of Pinga vs. Heirs of German Tinga (2006), the court held that: the
dismissal of a complaint due to fault of the plaintiff is without prejudice to the right of
the defendant to prosecute any pending counterclaims of whatever nature in the same
or separate action.
2. This is without regard as to the permissive or compulsory nature of the counterclaim.
The present rule ensures that any judgment thereon is based on the merit of the
counterclaim itself and not on the survival of the main complaint. (Id.)
o Do we need leave of court to file a counterclaim? Cross claim? No, there is no
need of leave of court to file a counterclaim or a cross claim because the court has already
acquired jurisdiction over the person of the other party.
o Do we need leave of court to file a third-party complaint? Yes, because the court
has not yet acquired jurisdiction over the person of the third party defendant. Summons is
required to be served because the court has not yet acquired jurisdiction.
1. A third-party claim is different from a third-party complaint. A third-party claim
is found under Rule 39, Sec. 16, re: execution of judgments.
o Requisites for a third-party complaint: The defendant may implead another as a thirdparty defendant on allegation of liability to the defendant on the following grounds:
1. For contribution, indemnity, subrogation or any other relief, in respect of his
opponent's claim; or
2. On the ground of direct liability of the third-party defendant to the plaintiff; or
3. On the ground of the third-party defendants liability to both the plaintiff and the
defendant.
o Should a pleading filed in court be signed? Yes, otherwise it produces no legal effect.
The signature of counsel constitutes a certificate by him that he has read the pleading; that to
the best of his knowledge, information, and belief there is good ground to support it; and
that it is not interposed for delay.

Rule 17, Sec. 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a notice of
dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court
shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that
a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim.
20

jjsummer&rain#foursisons2015-0017

1. The lawyer is not expected to have personal knowledge of the facts of the case. All that
the law requires is that when you sign the pleading, you attest to the fact that you have
knowledge, information, and belief.
2. Only a lawyer can sign a pleading. While it could happen that another lawyer could
sign for you, a non-lawyer cannot sign the pleading, because the signature is an
attestation that that he has read the pleading; that to the best of his knowledge,
information, and belief there is good ground to support it; and that it is not interposed
for delay.
3. If an unsigned pleading was filed, and the failure to sign was inadvertently made, you
have to explain to the court that it was indeed inadvertently made. The court may
consider it as filed. But if the failure to sign was deliberate, and you made allegations
which are scandalous, or you changed your address without informing the court, you
may be sanctioned by the court. It is the duty of the counsel to promptly inform the
court of his change of address.
o Should a verification21 be based on knowledge, information, and belief? Who
should sign the verification? No, the verification must be based on personal knowledge
or based on authentic records. It is the client who must sign the verification. A lawyer cannot
sign the verification because he has no personal knowledge of the facts of the case.
o What if the party are the spouses, should they both sign the verification? Yes, the
rule is that both spouses must sign the verification.
o What if there are five (5) parties, will all of them be required to sign the
verification? Yes, all of them will have to sign.
o What if the party is a juridical entity, who will sign the verification? The person
authorized upon a board resolution embodied in a Secretarys Certificate attached to the
pleading.
o What if the proceedings are under the ADR Rule, can the lawyer sign the
verification? Yes, the lawyer is expressly allowed by the ADR Law to sign the verification in
behalf of a party.
o Is the requirement of verification jurisdictional? No, it is not jurisdictional. It is
only a formal requirement, and for that reason it can be cured. Verification is only required if
there is a law that requires a verification. If there is no law that requires a verification, forget
about it. You do not need to verify the pleading. However, where the law expressly provides
that the pleading shall be dismissed if it was filed without verification, the requirement of
verification becomes jurisdictional. A pleading required to be verified which lacks proper
verification shall be treated as an unsigned pleading.
o Does the lack of a Certificate of Non-Forum Shopping lead to a dismissal of the
case? Yes. Although a complaint without verification will not be dismissed, unless the law
expressly provides that the lack of verification shall lead to the dismissal of the case; a
complaint which lacks a certificate of non-forum shopping, shall be dismissed, although
such dismissal is without prejudice.
Rule 7, Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit.

21

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 records.
A pleading required to be verified which contains a verification based on "information and belief", or upon "knowledge, information
and belief," or lacks a proper verification, shall be treated as an unsigned pleading.

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1. While the verification is only a matter of form, and that it can be corrected even by
an amendment, a certificate of non-forum shopping is a requirement of law, and for
that reason in the absence of such certificate, it will result to a dismissal, although the
dismissal is without prejudice.
2. In practice, the verification and the certificate of non-forum shopping is contained in
a single document, i.e. verification and certification. That is why even pleadings not
required to be verified are verified (but for purposes of the bar, you only verify
pleadings which are required by law to be verified). It may seem that the case was
dismissed because of the lack of verification, but in truth, the case was dismissed
because of the lack of certification.
o Who should sign the Certificate of Non-Forum Shopping? The certificate of nonforum shopping should be signed by all the petitioners or plaintiffs in a case, and that the
signing by only one of them is insufficient. (Docena vs. Lapesura, 2007)
1. The attestation on non-forum shopping requires personal knowledge by the party
executing the same, and the lone signing petitioner cannot be presumed to have
personal knowledge of the filing or non-filing by his co-petitioners of any action or
claim the same as similar to the current petition. (Id.)
2. Cases involving co-ownership, similar interest in a family home, or spouses interest
wherein a party or just a handful of parties are allowed to sign are merely exceptions
by reason of substantial compliance, because of what you call common interest.
o What if the party is a juridical entity, who will sign the certificate? The person
authorized upon a board resolution embodied in a Secretarys Certificate attached to the
pleading.
o What if the pleading filed by the juridical entity has a certificate, but there was
no attached authority, or that the signatory was not authorized? The court may
consider the certificate duly signed based on the following: that there is a compelling reason
why you were not able to attach the authority; and that you submit the authority even
belatedly showing that indeed there was such an authority.
o Allegations in the body of the Certificate of Non-Forum Shopping:22
1. That there are no pending case(s) involving the same issue(s) in another court,
tribunal, or quasi-judicial agency;
2. That if there is a pending case, you will inform the court of the status thereof;
3. That if you learn later on that there is such a pending case, you will inform the court
of such fact within a period of five (5) days.

Rule 7, Sec. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously
filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is
such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that
the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory pleading has been filed.
22

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after
hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel
clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for administrative sanctions.

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o If the case was dismissed because of false Certificate of Non-Forum Shopping,


or non-compliance with your undertaking in the certificate, can the case be refiled? No, it cannot be re-filed because if you re-file, it will be again dismissed because of litis
pendencia.
o The Certificate of Non-Forum Shopping can be made either by a statement under oath in
the complaint or initiatory pleading asserting a claim or relief; it may also be in a sworn
certification annexed to the complaint or initiatory pleading. In both instances, the affiant is
required to execute a statement under oath the allegations required to be contained in the
certificate.
1. In relation to the crime of perjury, the material matter in a Certificate of Non-Forum
Shopping is the truth of the required declarations which is designed to guard against
litigants pursuing simultaneous remedies in different fora.
2. In the case of Union Bank of the PH vs. People (2012), the court held that: the
deliberate and intentional assertion of falsehood was allegedly shown when the
accused made the false declarations in the Certificate against Forum Shopping before
a notary public in Makati City, despite her knowledge that the material statements she
subscribed and swore to were not true. Thus, Makati City is the proper venue and
MeTC-Makati City is the proper court to try the perjury case against Tomas, pursuant
to Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure as all the
essential elements constituting the crime of perjury were committed within the
territorial jurisdiction of Makati City, not Pasay City.

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RULE 9: Effect of Failure to Plead


o What is the concept of default under Rule 9? Default is the failure to file an answer or
any responsive pleading within the reglementary period required by law for you to file an
answer, and there is proof of such failure.
1. Under Rule 14, it is the duty of the sheriff to serve a copy of the sheriffs return within
a period of five (5) days from service of summons. From such sheriffs return, the court
learns of the running of the reglementary period to file an answer.
2. Filing in court can be by personal service, or by registered mail. When you file a motion
to declare in default, there should be proof of such failure.
o What are the consequences of being declared in default? Being declared in default
does not mean that the defendant has already lost the case. The defendant can no longer
participate in the proceedings, but he is still entitled to receive notices from the court.
1. If there is an Order of Default under Rule 9, the court can render judgment based on
the pleadings, unless in its own discretion, the court requires presentation of evidence
ex parte.
2. In an as-in default,23 the plaintiff will be allowed to present evidence ex parte.
o What is your remedy for an Order of Default? Your remedy for an Order of Default is
to file a motion, under oath, to set aside or to lift an order of default, on the grounds of fraud,
i.e. extrinsic fraud (fraud which prevents you from participating in the proceedings), accident,
mistake, i.e. mistake of fact, and excusable negligence; and you must also show that you have
a meritorious defense.
o What is your remedy for a Judgment by Default?
1. Within the reglementary period, you may file a motion for new trial under Rule 37 or
you can file an appeal under Rule 41; you do not file a motion for reconsideration
because there was no evidence presented;
2. Outside of the reglementary period, i.e. the judgment is already final and executory,
you can file a petition for relief from judgment under Rule 38.
3. You can also file a petition for certiorari under Rule 65 if there was grave abuse of
discretion amounting to lack or excess of jurisdiction.
o General Default applies in actions in rem where there is a duly published notice of hearing
where all oppositors are required to appear on a designated time and date of the hearing
scheduled by the court. If the public or any oppositor does not appear, you can file a motion
for general default. For that reason, any interested party can no longer come forward.
o Can the court allow presentation of evidence ex parte in cases of partial default?
No, because there are evidence to be presented in the course of the trial by the non-defaulting
defendants. The court will allow the case to proceed and the non-defaulting party to present
evidence and based on the same, the court would render a judgment.
1. The common evidence of all the defendants can benefit or can be considered in favor
of the defaulting, non-answering defendants.

As-in Default refers to a case where the defendant does not appear in a pre-trial; and since the defendant did not appear,
the plaintiff will be allowed to present evidence ex parte.
23

jjsummer&rain#foursisons2015-0021

o What are the cases where the court cannot declare default? The court cannot
declare default in cases falling under Summary Procedure; and in actions for annulment or
declaration of nullity of marriage, or for legal separation.
1. If the defendant spouse fails to answer, there will be a motion to set the case for a
collusion conference before the prosecutor. Thereafter, the prosecutor will submit a
conference report to the court, then the court will issue a notice of pre-trial.

jjsummer&rain#foursisons2015-0022

RULE 10: Amended and Supplemental Pleadings


o An amendment is a change on a pleading based on facts already available at the time of the
filing of the pleading sought to be amended; a supplement, on the other hand, is based on
facts or occurrences or events that have taken place after the filing of the pleading sought to
be supplemented.
1. Amendments as a matter of right. A party may amend his pleading once as a
matter of right at any time before a responsive pleading is served or, in the case of a
reply, at any time within ten (10) days after it is served.
2. Amendments by leave of court. After an Answer, substantial amendments may
be made only upon leave of court or subject to the discretion of the court. But such
leave may be refused if it appears to the court that the motion was made with intent to
delay.
3. Amendments as a matter of form. A defect in the designation of the parties and
other clearly clerical or typographical errors may be summarily corrected by the court
at any stage of the action, at its initiative or on motion, provided no prejudice is caused
thereby to the adverse party.
4. Amendment to conform to or authorize presentation of evidence.
Amendment to the pleading to conform to the evidence is allowed because there is a
variance from that which was alleged and that which was proven.
a. Amendment to the pleadings is allowed so that when it is appealed to the higher
court, they will understand why there was a variance from that which was
alleged and that which was proven.
o Can the amount proved at the trial be validly awarded even when there was no
amendment? Yes. Even if there is no amendment, but if it was proven during trial, the claim
as proven may be the basis of a valid award. To this extent, the law recognizes that even in
the absence of amendment, there can still be a valid award.
o What is your remedy for an omitted counterclaim? Although Rule 9 says that failure
to raise a counterclaim in an answer bars the counterclaim, Rule 11, Sec. 1024 provides for a
remedy, i.e. you can amend, by leave of court.
o How do you allege a decision of the court? When you allege a decision of the court, it
is enough to say that it is an order or a decision of a court without saying that the court acted
within its competent jurisdiction.
o Do you need to allege mistake and fraud with particularity? Yes, you have to allege
mistake and fraud with particularity. It cannot be general. You have to give the details on
how you were defrauded or how the mistake was committed. You have to tell the story.
However, malice, intent, knowledge, and other conditions of the mind can be averred
generally.

24
Rule 11, Sec. 10. Omitted counterclaim or cross-claim. When a pleader fails to set up a counterclaim or a cross-claim
through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim
or cross-claim by amendment before judgment.

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RULE 11: When to File Responsive Pleadings


o Period to file an Answer: 15 days
1. Period to file an Answer (Third-Party Complaint): 15 days
2. Period to file an Answer [Amended Complaint (as a matter of right)]: 15 days
3. Period to file an Answer [Amended Complaint (with leave of court)]: 10 days
4. Period to file an Answer (Supplemental Complaint): 10 days
5. Period to file an Answer (Counterclaim): 10 days
6. Period to file an Answer (defendant is a foreign juridical entity, and there is a
person or a governmental officer authorized by law to receive summons): 30 days
o Period to file a Reply: 10 days
RULE 12: Bill of Particulars
o When do you file a motion for a bill of particulars?25 You file the motion for a bill of
particulars at any time before an Answer is filed.
o Can the court order motu proprio the filing of a motion for a bill of particulars?
No, the court cannot order motu proprio the filing of a motion for a bill of particulars. Its
filing is left to the party because it is the party-defendant who will file the Answer. It is outside
the courts discretion to require the filing of a motion for a bill of particulars.
o Can the court grant or deny outright a motion for a bill of particulars? Yes, the
court can grant or deny outright a motion for a bill of particulars. The court may also set if for
hearing. This is within the courts discretion.
o Why do you need to file a motion for a bill of particulars? You file a motion for a bill
of particulars because, in your view, the complaint is defective. Such motion shall point out
the defects complained of, the paragraphs wherein they are contained, and the details
desired.
o Is a motion for a bill of particulars a mandatory motion? No, it is not a mandatory
motion. It is left to the discretion of the party-defendant.
o Will you file a motion for a bill of particulars when you notice that the complaint
of the plaintiff is defective? No, in practice, why will you correct the defective complaint
of your opponent. You may leave it as such. But your use of a motion for a bill of particulars
would depend on your strategy in a case, because there are cases where a bill of particulars is
necessary.
1. The mindset of the Rule is for the expeditious resolution of cases. The court allows you
to assist the other party to call his attention on what you want from him so that you
could intelligently answer - this is in an ideal world.
2. If you are confronted with a defective pleading, you can simply file a motion to dismiss,
or an Answer so that the issues will be joined. You can opt not to file a motion for a bill
of particulars because it is not a mandatory motion.

Rule 12, Sec. 1. Bill of Particulars; when applied for; purpose. Before responding to a pleading, a party may move for
a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to
enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days
from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the
details desired.
25

jjsummer&rain#foursisons2015-0024

o What does the grant of a motion for a bill of particulars mean? The grant of a
motion for a bill of particulars means that the plaintiff will have to file a bill of particulars,
i.e. outlining what the court requires him to do, or the party may file an amended pleading.
o In case your motion for a bill of particulars is granted or denied, how many days
are left for you to file an Answer? You will have the remaining days in the 15-day period
to file an Answer. If the remaining period exceeds five (5) days, you will have said remaining
period as such. If the remaining period is less than five (5) days, you will have five (5) days.
1. Let us say that the complaint and summons were received on June 1, 2015. You have
15 days to file an Answer or until June 16, 2015. Within the 15-day reglementary
period, you can file a motion for a bill of particulars, if the complaint is defective; or
you can also file a motion to dismiss. You filed your motion for a bill of particulars on
the 7th day of the 15-day period, or on June 8, 2015. In case your motion for a bill of
particulars is denied, or is granted, and the plaintiff filed a bill of particulars which you
received, how many days more do you have to file an Answer?
You have nine (9) more days to file an Answer. The remaining period is not eight (8)
days even though you already consumed seven (7) days of the 15-day period.
Under Rule 22, Sec. 226, the act that caused the interruption is not included in the
counting of the period.
In the given problem, the filing of the motion for a bill of particulars on June 8, 2015
interrupted the counting of the period. Hence, the day on which the motion for a bill
of particulars is filed is not included in the counting of the period. Said period shall
start to run again on the day after the interruption. Thus, you have nine (9) more days
to file an Answer.
2. This is the same way to compute the period for a motion to dismiss.
o Is a grant or denial of a motion for a bill of particulars a final judgment, or an
interlocutory order? Either the grant or denial of a motion for a bill of particulars is an
interlocutory order.
o What if your motion for a bill of particulars is either granted or denied, what are
your remedies? You can file a motion for reconsideration; or if the grant or denial is tainted
with grave abuse of discretion amounting to lack or excess of jurisdiction, you can file a
petition for certiorari under Rule 65.
o What if the court granted the motion for a bill of particulars, but the plaintiff did
not submit a bill of particulars? The case may be dismissed for violation of Rule 17, Sec.
3, i.e. non-compliance with an order of the court; or his allegations may be stricken from the
complaint.
o What if the court granted the motion for a bill of particulars, and the plaintiff
filed his bill of particulars, but despite the filing of the bill of particulars, the
defendant did not file his Answer? The defendant could be declared in default.

Rule 22, Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the running of the period, the
allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of
the act that caused the interruption shall be excluded in the computation of the period.
26

jjsummer&rain#foursisons2015-0025

RULE 13: Filing and Service of Pleadings, Judgments and Other Papers
o Filing, manner of: Filing refers to the submission of a pleading or a document before the
Clerk of Court. You file pleadings only by personal service (filing) or by registered mail.
1. Proof of personal service (filing): If the pleading appears on the records of the
case, that proves that you have filed the pleading; but if the pleading is not found in
the records of the case, you will have to present your receiving copy with the stamped
acknowledgement.
2. Proof of filing by registered mail: The rule on filing by registered mail is that the
date of mailing is the date of filing. Your proof of filing is the registry return card and
the affidavit of the person mailing.
o Service, mode of: Service is the act of providing a party with a copy of the pleading or paper
concerned. It always precedes filing. Before you file your case in court, you must first serve a
copy of the complaint to the adverse party. Service is done by personal service, or by mail,
i.e. ordinary mail or registered mail.
1. Personal Service: Service of the papers may be made by delivering personally a
copy to the party or his counsel, or by leaving it in his office with his clerk or with a
person having charge thereof. If no person is found in his office, or his office is not
known, or he has no office, then by leaving the copy, between the hours of eight in the
morning and six in the evening, at the party's or counsel's residence, if known, with a
person of sufficient age and discretion then residing therein. (Rule 13, Sec. 6)
a. This is still personal service, but under Rule 14 on the service of summons, this
manner of service is called substituted service. Service is complete upon
actual delivery.
b. Proof of personal service:
i. Written acknowledgement that the adverse party received it;
ii. Official return of the server (when the court serves); and
iii. Affidavit of the person serving, if the addressee or the person to be served
refuses to accept.
2. Service by mail: A party may serve by ordinary mail, or by registered mail, which
service can be made to a party, or even to the court in certain instances.
a. Service by ordinary mail is complete after expiration of ten (10) days after
mailing. The proof of service by ordinary mail is an affidavit of the person
mailing.
b. Service by registered mail is complete upon actual receipt, or expiration of five
(5) days from the first notice of the postmaster, whichever is earlier. The proof
of service by registered mail is the registry return card and the affidavit of the
person mailing.
3. Substituted service under Rule 13:27 When you talk of substituted service under
Rule 13, it means that there is failure of personal service, and service by mail (ordinary
mail and registered mail), in which case you need to bring to the court the unserved
document with an affidavit stating the reason why it cannot be served.
Rule 13, Sec. 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot
be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service
may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The
service is complete at the time of such delivery.

27

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a. When it comes to summons, do not apply Rule 13. You only apply Rule 14. Rule
13 and Rule 14 cannot be used interchangeably.
o Can service of pleadings, or orders, and processes from the court be made by
publication? No. The only modes of service of pleadings, motions, notices, orders,
judgments and other papers allowed by the rules are personal service, service by mail and
substituted service if either personal service or service by mail cannot be made, as stated in
Sections 6, 7 and 8 of Rule 13 of the Rules of Court . Nowhere under this rule is service of
notice to file answer by publication is mentioned, much less recognized. (Aberca vs. Ver,
2012).
1. The court pointed out that: service by publication only applies to service of summons
stated under Rule 14 of the Rules of Court where the methods of service of summons
in civil cases are: (1) personal service; (2) substituted service; and (3) service by
publication. Similarly, service by publication can apply to judgments, final orders and
resolutions as provided under Section 9, Rule 1328 of the Rules of Court. (Id.)
2. There is, however, nothing in the Rules that authorizes publication of a notice of
hearing to file answer. What is authorized to be published are: (1) summons, and (2)
final orders and judgments. Sec. 9 of Rule 13 cannot be used to justify the trial courts
action in authorizing service by publication. Firstly, what was published was not a
final order or judgment but a simple order or notice to file answer. Secondly, even
granting that the notice to file answer can be served by publication, it is explicit in the
Rule that publication is allowed only if the defendant-appellant was summoned by
publication. The record is clear that defendants-appellants were not summoned by
publication. (Id.)
o The court may also serve by personal service through the sheriff or the process server, or by
registered mail, because documents, like orders, resolutions, notices, decisions, judgments,
etc., can originate from the court.
o What if the registry return card together with the document to be served was
returned to you, what will you do? You must file with the court the registry return card
together with the unclaimed document with a certification from the post office as to the
reason for the return.
o To whom do you serve the pleadings? As a general rule, it is to be served to the counsel
of record. Any document or pleading filed shall be served upon the counsel of record, if there
is a counsel of record. Only when the court requires that an order be served to a party will it
be served to a party.
o What is the priority of service? Priority of service is by personal service. This is a
provision29 that applies only to the parties. You do not require the court to observe this
provision. If it be cannot served personally, you have to make an explanation to the court.

28
Rule 13, Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be
served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments,
final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party.

Rule 13, Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of pleadings and
other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be
accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to
consider the paper as not filed.
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o Is the provision on priority of service mandatory? Yes, it is mandatory.


1. In the case of Domingo vs. CA (2010), the court held that: Under Section 11, Rule 13
of the 1997 Rules of Civil Procedure, personal service and filing is the general rule,
and resort to other modes of service and filing, the exception. Henceforth, whenever
personal service or filing is practicable, in light of the circumstances of time, place and
person, personal service or filing is mandatory. Only when personal service or filing is
not practicable may resort to other modes be had, which must then be accompanied
by a written explanation as to why personal service or filing was not practicable to
begin with.
2. If you serve it by registered mail, and there is no explanation, as a rule the pleading is
not considered as filed. However, in the abovementioned case, the court laid down the
requirements for a liberal application of the rules. The court held that: liberal
application of procedural rules is allowed only when two requisites are present: (1)
there is a plausible explanation for the non-compliance, and (2) the outright dismissal
would defeat the administration of justice.
o What is lis pendens? Lis pendens is simply an annotation or a written memorandum that
there is a pending case in a judicial proceeding involving a property subject of a controversy.
For you to cause an annotation of a notice of lis pendens, the property subject of the lis
pendens should be the subject of the controversy involving title to, or possession of the said
property. Lis pendens is not litis pendencia.
1. A notice of lis pendens may involve actions that deal not only with title or possession
of a property, but also with the use or occupation of a property. The litigation must
directly involve a specific property which is necessarily affected by the judgment.
(Heirs of Lopez vs. Enriquez, 2005)
o What are the cases where a notice of lis pendens is appropriate? In the case of
Magdalena Homeowners Association, Inc. vs. CA (1990), the court enumerated the cases
where a notice of lis pendens is appropriate:
1.
2.
3.
4.
5.

An action to recover possession of real estate;


An action to quiet title thereto;
An action to remove clouds thereon;
An action for partition; and
Any other proceedings of any kind in court directly affecting the title to the land or the
use or occupation thereof or the buildings thereon.

o On the other hand, the doctrine of lis pendens has no application in the following cases:
1.
2.
3.
4.
5.

Preliminary attachments;
Proceedings for the probate of wills;
Levies on execution;
Proceedings for administration of estate of deceased persons; and
Proceedings in which the only object is the recovery of a money judgment.

o Will a lis pendens establish a right or an encumbrance? No. A notice of lis pendens
establishes no right nor even an encumbrance. A notice of lis pendens is pure and simple
notice. You are not in a better position because of it. It does not mean that the property is
encumbered because of a notice of lis pendens, except that there is a notice to the rest of the
world that such property is subject of a pending litigation.

jjsummer&rain#foursisons2015-0028

o How do you cause the annotation of a notice of lis pendens? First, you file a case
involving the title to, or possession of, the property; cause and write a memorandum
indicating the title of the case, and the details of the property, and then send it to the Registry
of Deeds where the property is located.
1. This is how easy it is to cause the annotation of the notice of lis pendens. What is
cumbersome is the removal of the annotation because such removal requires an order
from the court. You will have to convince the court that the notice of lis pendens was
only made to molest you, and not to protect the right of any party. This would require
a court hearing.
o Can the Court of Appeals reinstate a notice of lis pendens after it was cancelled
by the RTC? Yes, if there is reason to cause the re-annotation of the notice of lis pendens.

jjsummer&rain#foursisons2015-0029

RULE 14: Summons


o Summons, service of (if the defendant is an individual): The mode of service of the
summons and the complaint is by personal service, i.e. handing the summons to the
defendant together with the complaint.
1. If the defendant refuses to receive the summons, service is by tendering the
summons to him, i.e. making sure that the summons is received.
a. If the defendant files an Answer despite the improper service of summons, he
has waived any objections as regards the summons because by filing an Answer,
the defendant is deemed to have submitted to the jurisdiction of the court,
unless the defendant raises the objection in the Answer or in a Motion to
Dismiss.
b. If the defendant files a Motion for Extension of Time, or by seeking an
affirmative relief from the court, he has waived any objection as regards the
summons, and is now deemed to have submitted to the jurisdiction of the court.
c. Summons, substituted service:30 For substituted service of summons to
be available, there must be several attempts by the sheriff to personally serve
the summons within a reasonable period (of one month) which eventually
resulted in failure to prove impossibility of prompt service. Several attempts
means at least three (3) tries, preferably on at least two different dates. In
addition, the sheriff must cite why such efforts were unsuccessful. It is only then
that impossibility of service can be confirmed or accepted. (Manotoc vs. CA,
2006)
i.

By leaving copies of the summons at the defendant's residence with some


person of suitable age and discretion then residing therein;31

ii.

By leaving the copies at defendant's office or regular place of business


with some competent person in charge thereof.32

iii.

Can there be a substituted service on a non-resident


defendant? As a general rule, no, because the court cannot acquire
jurisdiction over the defendant.
1. Exception: In the case of Gemperle vs. Schenker (1967), the
court held that: the lower court had acquired jurisdiction over
said defendant (non-resident), through service of the summons
addressed to him upon Mrs. Schenker (resident), it appearing

Rule 14, Sec. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time
as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence
with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular
place of business with some competent person in charge thereof.

30

31
A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered
to have enough discernment to understand the importance of a summons. To be of sufficient discretion, such person must know
how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons
and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have
the relation of confidence to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the
summons. (Manotoc vs. CA, 2006). If the person who received the summons is just a visitor, or a transient not residing therein,
there would be no proper substituted service.

If the substituted service will be done at defendants office or regular place of business, then it should be served on a competent
person in charge of the place. Thus, the person on whom the substituted service will be made must be the one managing the office
or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand
the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons.
(Id.)

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from said answer that she is the representative and attorney-infact of her husband aforementioned civil case No. Q-2796, which
apparently was filed at her behest, in her aforementioned
representative capacity. In other words, Mrs. Schenker had
authority to sue, and had actually sued on behalf of her husband,
so that she was, also, empowered to represent him in suits filed
against him, particularly in a case, like the of the one at bar, which
is consequence of the action brought by her on his behalf.
(Annotations supplied).
2. If the resident spouse has been previously appointed as an
attorney-in-fact in another case also involving the non-resident
spouse, then the resident spouse can receive summons by
substituted service.
2. If the defendant is a prisoner33, summons must be made upon the warden.
If the defendant is a minor34, summons can be served to the minor himself or to
the parent or guardian.
3. If the defendants whereabouts is unknown, or that the defendant is
unknown,35 service may, by leave of court, be done by publication in a newspaper of
general circulation.
4. If the defendant does not reside, or is not found in the PH involving cases
which concern the personal status of the plaintiff, or a real property owned by a nonresident defendant, or any other action that involves an interest, whether actual or
contingent, over property, Sec. 15 of Rule 1436 (extraterritorial service) applies.
You can serve summons under Sec. 15 in any of the following ways:
a. By personal service outside of the PH;
b. By publication in a newspaper of a general circulation and service by registered
mail in the last known address, and
c. By any other mode as may be determined by the court.
Rule 14, Sec. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall
be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff
for said purpose.
33

34
Rule 14, Sec. 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an
incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad
litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or
mother.
35
Rule 14, Sec. 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the
defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained
by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and
in such places and for such time as the court may order.

1.
2.
3.

Before the amendment of the rules, this provision was only applicable to actions in rem and quasi in rem. But now, it is
also applicable in actions in personam.
The classification of in personam, in rem, and quasi in rem actions is important to determine the effect of judgment. If it
is in personam, it affects only the parties to the case.
In actions in rem, there is no designated defendant, while in actions quasi in rem, there is a designated defendant. In
both actions, the judgment affects the rest of the world.

Rule 14, Sec. 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and
the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in
which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in
part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the
Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 6; or by
publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of
the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other
manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than
sixty (60) days after notice, within which the defendant must answer.
36

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5. If the defendant is a resident temporarily out of the PH37 under Sec. 16 of Rule
14, service of summons may be made in the manner provided for under Sec. 15 of Rule
14 (extraterritorial service).
a. However, would you rather spend money for publication, or would you rather
send a person abroad to serve the summons? These modes of service are
expensive. Jurisprudence holds that service of summons to residents
temporarily out of the PH may be made by substituted service.
b. In the case of Montalban vs. Maximo (1968), the court held that: substituted
service of summons under the present Section 7, Rule 14 of the Rules of Court
in a suit in personam against residents of the Philippines temporarily absent
therefrom is the normal method of service of summons that will confer
jurisdiction on the court over such defendant.
c. Also, in the case of Palma vs. Galvez (2010), the court held that: because
Section 16 of Rule 14 uses the words may and also, it is not mandatory. Other
methods of service of summons allowed under the Rules may also be availed of
by the serving officer on a defendant-resident who is temporarily out of the
Philippines. Thus, if a resident defendant is temporarily out of the country, any
of the following modes of service may be resorted to: (1) substituted service set
forth in section 7, Rule 14; (2) personal service outside the country, with leave
of court; (3) service by publication, also with leave of court; or (4) in any other
manner the court may deem sufficient.
o Summons, service of (if the defendant is a juridical person):
1. If the defendant is a domestic corporation, service of the summons should be
made upon the president, general manager, managing partner, corporate secretary,
treasurer, or in-house counsel.38 (Rule 14, Sec. 11).
a. Service of summons cannot be made upon a retained counsel. But if the counsel
is employed by a corporation, service of summons can be made upon him as he
is an in-house counsel, i.e. general counsel, in case of multiple counsels in big
corporations.
b. In case of big corporations, they already have a receiving section for such
summons so as to not bother the general counsel anymore but this is still an
effective service of summons.
c. In case of multinational corporations with subsidiary companies incorporated
in the PH, or juridical persons, incorporated in the PH, located in an export
processing zone, Rule 14, Sec. 11 will also apply.

Rule 14, Sec. 16. Residents temporarily out of the Philippines. When any action is commenced against a defendant
who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out
of the Philippines, as under the preceding section.
37

Rule 14, Sec. 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-house counsel.
38

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2. If the defendant is a foreign juridical entity39, service of the summons should


be done in accordance with Rule 14, Sec. 12.
a. If it has transacted business in the PH, and it has a resident agent, or there is a
government officer designated by law to receive summons, or it has officers or
agents in the PH, you can serve summons upon the aforementioned persons.
b. If it has no resident agent, or representative in the PH, you serve summons,
with leave of court, in the manner provided for in the second paragraph of Sec.
12, Rule 14.
3. If the defendant is a public corporation, the rule provides that: when the
defendant is the Republic of the Philippines, service may be effected on the Solicitor
General; in case of a province, city or municipality, or like public corporations, service
may be effected on its executive head, or on such other officer or officers as the law or
the court may direct.
o Where there is a law which requires a specific mode of service of summons, you
do not follow what is provided under Rule 14. You follow the specific provision of law.
1. In the case of RCBC vs. Hi-Tri Development Corporation (2012), the court held that:
Insofar as banks are concerned, service of processes is made by delivery of a copy of
the complaint and summons upon the president, cashier, or managing officer of the
defendant bank. On the other hand, as to depositors or other claimants of the
unclaimed balances, service is made by publication of a copy of the summons in a
newspaper of general circulation in the locality where the institution is situated.
2. A notice about the forthcoming escheat proceedings must also be issued and
published, directing and requiring all persons who may claim any interest in the
unclaimed balances to appear before the court and show cause why the dormant
accounts should not be deposited with the Treasurer. (Id.)
3. Accordingly, the CA committed reversible error when it ruled that the issuance of
individual notices upon respondents was a jurisdictional requirement, and that failure
to effect personal service on them rendered the Decision and the Order of the RTC void
for want of jurisdiction. Escheat proceedings are actions in rem, whereby an action is
brought against the thing itself instead of the person. Thus, an action may be instituted
and carried to judgment without personal service upon the depositors or other
claimants. Jurisdiction is secured by the power of the court over the res. Consequently,
a judgment of escheat is conclusive upon persons notified by advertisement, as
publication is considered a general and constructive notice to all persons interested.
(Id.)

39
Rule 14, Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign private juridical entity
which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for
that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or
agents within the Philippines.

If the foreign private juridical entity is not registered in the Philippines or has no resident agent, service may, with leave of court,
be effected out of the Philippines through any of the following means:
a.
b.
c.
d.

By personal service coursed through the appropriate court in the foreign country with the assistance of the Department
of Foreign Affairs;
By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving
a copy of the summons and the court order by registered mail at the last known address of the defendant;
By facsimile or any recognized electronic means that could generate proof of service; or
By such other means as the court may in its discretion direct.

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RULE 15: Motions


o A motion is an application for relief other than by a pleading. The provisions on motion under
Rule 15 apply to every kind of motion you file in court.
o For purposes of the bar, all motions should contain the matters provided under Secs. 4, 5,
and 6 of Rule 15:
1. The motion should have a Notice of Hearing (directed to the adverse party and to the
Clerk of Court, because it is the Clerk of Court that sets the date of the hearing);
2. It should have been filed and served on the other part at least three (3) days before the
date of the hearing (three-day notice rule); and
3. The motion should have been set for hearing on a date not later than ten (10) days
from the date of its filing (ten-day rule).
o On a notice of hearing in an execution of a final judgment: In an execution of a
final judgment, the judgment debtor need not be given advance notice of the application for
execution nor he be afforded prior hearing.
1. General rule: The court cannot refuse to issue a writ of execution upon a final and
executory judgment, or quash it, or order its stay, for, as a general rule, the parties will
not be allowed, after final judgment, to object to the execution by raising new issues of
fact or of law. (Anama vs. CA, 2012).
2. Exceptions:
a. When there had been a change in the situation of the parties which makes such
execution inequitable or when it appears that the controversy has ever been
submitted to the judgment of the court; or
b. When it appears that the writ of execution has been improvidently issued, or
that it is defective in substance, or is issued against the wrong party, or that
judgment debt has been paid or otherwise satisfied; or
c. When the writ has been issued without authority. (Id.)
3. Once a judgment becomes final and executory, the prevailing party can have it
executed as a matter of right and the granting of execution becomes a ministerial duty
of the court. Otherwise stated, once sought by the prevailing party, execution of a final
judgment will just follow as a matter of course. Hence, the judgment debtor need not
be given advance notice of the application for execution nor he afforded prior hearing.
(Id.)
o On the three-day notice rule: If you set your motion for a hearing on a Friday (June
19), you should have filed your motion no later than Tuesday (June 16) to comply with this
rule.
1. The Rules require that the movant ensures receipt by the adverse party at least three
(3) days before hearing. If you serve your notice via registered mail, you may not
comply with the three-day notice rule, unless the notice is received by the adverse party
at least three days before the hearing. To ensure receipt by the adverse party at least
three (3) days before the date of the hearing, service should have been done by
personal service.
o On the ten-day rule: If you filed your motion on Tuesday (June 16), you could set it for
hearing on Friday (June 19) in compliance with the three-day notice rule. If you cannot
have it set on the 19th, you can set it on a date not later than June 26, which is the 10th day
from the date of the filing of the motion this is the ten-day rule.

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1. You also have to consider the motion day of the courts, which is always set on a
Friday at 2:00 pm. Under the law, this rule is mandatory. But in practice, the motion
day is not always on a Friday. The day of the motion day depends on the Judge.
o If, for example, you filed a motion for reconsideration, but you did not incorporate a notice
of hearing, or you did not comply with the three-day notice rule, nor the ten-day rule,
your motion for reconsideration will not interrupt or toll the running of the reglementary
period. Failure to comply with the requirements of the rule on motions, your motion will be
treated as a mere scrap of paper. It will be denied.
o The requirements of notice of hearing, the three-day notice rule, or the ten-day rule
must be complied with at the time of the initial filing. Once these requirements have been
satisfied, and for one reason or another, the court is not available on the initial date set for
hearing, or because of a storm, or fortuitous event, the hearing is cancelled, you just have to
reset it. You will no longer be prejudiced.
o What is the omnibus motion rule? The rule simply states that you will have to plead
all grounds and objections available. Failure to do so means that grounds and objections not
raised in the motion are deemed waived.

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RULE 16: Motion to Dismiss


o You are to file a motion to dismiss within the reglementary period to file an answer. As a
rule, a motion to dismiss can only be filed before a responsive pleading is filed.
1. However, there are grounds that will survive even after the filing of an answer. Even
in cases where a previous motion to dismiss has been previously filed but the
grounds of lack of jurisdiction over the subject matter, litis pendencia, res judicata,
prescription, or forum shopping only becomes apparent at this time, you can still file
a motion to dismiss.
2. If you have already filed an answer, you can still file a motion to dismiss on the
ground of lack of jurisdiction over the subject matter, litis pendencia, res judicata,
prescription, or forum shopping.
o What can be the possible actions of the court on a motion to dismiss? The court
can grant, deny, or order an amendment even if amendment is not prayed for.
o A motion to dismiss may be made on any of the following grounds:
1. Lack of jurisdiction over the person of the defendant;
a. This refers to improper service of summons. In the case of Sps. Mason vs. CA,
(2003), citing the case of Villarosa vs. Benito (1999), the court held that: there
was no valid service of summons on Villarosa as service was made through a
person not included in the enumeration in Section 11, Rule 14 of the 1997 Rules
of Civil Procedure. We discarded the trial courts basis for denying the motion
to dismiss, namely, private respondents substantial compliance with the rule
on service of summons, and fully agreed with petitioners assertions that the
enumeration under the new rule is restricted, limited and exclusive.
b. Waiver only applies if the party has knowledge or if the party knows of it and
there is inaction, but in cases where there is improper service of summons, and
the party is not aware, and the case proceeded until judgment any judgment
on the case is null and void.
c. Under the provision on voluntary submission or voluntary appearance (Rule 14,
Sec. 20), by your act you are deemed to have submitted yourself to the
jurisdiction of the court. This provision only applies in a situation where the
pleading was filed on the first instance.
d. You can raise other grounds together with lack of jurisdiction over the person
of the defendant in a motion to dismiss. This is not considered as submitting
to the jurisdiction of the court. This is the prevailing rule.
e. In the case of Sps. Anunciacion vs. Bocanegra, 2009, the court held that: the
filing of the Second Supplemental Motion to Dismiss did not divest the court of
its jurisdiction over the person of the respondents who had earlier voluntarily
appeared before the trial court by filing their motion to dismiss and the
supplemental motion to dismiss. The court further held that: Respondents
failure to raise the alleged lack of jurisdiction over their persons in their very
first motion to dismiss was fatal to their cause. They are already deemed to have
waived that particular ground for dismissal of the complaint.

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2. Lack of jurisdiction over the subject matter of the claim: When we refer to
this ground, you look at the law that confers jurisdiction. The basic law is BP No. 129
as amended by RA No. 7691, but there could be other laws that confer jurisdiction.
3. Improper venue: This ground should be raised by the defendant, otherwise it is
deemed waived. The court cannot raise this ground motu proprio.
4. The plaintiff has no legal capacity to sue: This ground can mean that the suing
individual is a minor and he is suing by himself, or that the party that presents itself
to be a corporation is not duly incorporated in the PH or in any country, or when you
claim to be a representative of an individual or a corporation, and you have not been
duly authorized or you cannot show their authorization.
5. Litis pendencia: Where there are identical causes of action, identical issues,
identical relief, and both cases are pending, there is litis pendencia.
6. Res judicata, or prescription;
a. Where there are identical causes of action, identical issues, identical relief, and
there is already a judgment in one case, there is res judicata.
b. Prescription (statute of limitation) refers to the periods provided for by law
when you are to enforce your rights or to file an action.
7. The pleading asserting the claim states no cause of action;
a. This ground means that upon simply reading the complaint, you will see that it
has no cause of action it has no legal leg to stand on. There is no right of the
plaintiff, there is no duty on the part of the defendant to respect that right, and
there appears to be no breach. There is no need for extraneous evidence to
convince the court that the pleading asserting the claim states no cause of
action. All you need to look at is the complaint.
b. In the case of Maramag vs. De Guzman (2009), the court held that: When a
motion to dismiss is premised on this ground, the ruling thereon should be
based only on the facts alleged in the complaint. The court must resolve the
issue on the strength of such allegations, assuming them to be true. The test of
sufficiency of a cause of action rests on whether, hypothetically admitting the
facts alleged in the complaint to be true, the court can render a valid judgment
upon the same, in accordance with the prayer in the complaint. This is the
general rule.
However, this rule is subject to well-recognized exceptions, such that there is
no hypothetical admission of the veracity of the allegations if:
i.
ii.
iii.
iv.
v.

The falsity of the allegations is subject to judicial notice;


The allegations are legally impossible;
The allegations refer to facts which are inadmissible in evidence;
By the record or document in the pleading, the allegations appear
unfounded; or
There is evidence which has been presented to the court by stipulation
of the parties or in the course of the hearings related to the case.

c. Lack or absence of a cause of action is not a ground for a motion to dismiss.


This is treated as a demurrer to evidence.

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d. If you claim that you are not a real party-in-interest this is not the proper
ground. The proper ground is that the pleading asserting the claim states no
cause of action.
8. That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished;
9. That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds;
a. The Civil Code requires that certain agreements be in writing to be enforceable.
If it is not embodied in a written agreement, what the parties apparently agreed
upon cannot be enforced.
b. Even in the absence of a written instrument, but if there was partial execution,
the contract can be enforced.
10. That a condition precedent for filing the claim has not been complied with.
a. Prior barangay conciliation is waived if not raised.
b. In a suit between members of the same family, there is a requirement of
amicable settlement or compromise before you go to court. If you fail to avail
of the same, and it was not raised by the other party, it is considered as waived.
c. Non-exhaustion of administrative remedies falls under this ground.
o Is a grant of a motion to dismiss a final judgment? It depends on what the ground
was for the motion to dismiss.
1. If the ground was any of the grounds under letters f, h, and i in the enumeration
under Sec. 1 of Rule 16, you cannot refile the motion to dismiss. In this case, the grant
is a final judgment. Your remedy therefore is to file an appeal.
2. If the ground was any of the rest of the grounds under Sec. 1 of Rule 16, dismissal is
without prejudice, you can therefore re-file your motion to dismiss. If you do not
agree with its dismissal, your remedy is to file a certiorari under Rule 65 because
under Rule 41, you do not appeal a dismissal which is without prejudice.
o Is the denial of a motion to dismiss a final judgment? No, it is not a final judgment.
It is an interlocutory order. Ordinarily, you do not have a remedy. What you should do is to
file an Answer.
1. But you could file a motion for reconsideration if you believe that the court
committed a mistake; and if you think that the court gravely abused its discretion
amounting to lack or excess of jurisdiction, you could go up on a Rule 65, file a petition
for certiorari for as long as the denial was tainted with grave abuse of discretion.
o Is an order of amendment a final judgment? No, it is not a final judgment. It is an
interlocutory order. The remedy would be to comply with the order of amendment.
1. If you disagree with the court, you could file a motion for reconsideration. If you
believe that the order was tainted with grave abuse of discretion, you could go up on a
Rule 65, file a petition for certiorari.

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o What if there is a hearing on a motion to dismiss, and evidence is presented.


In case the motion to dismiss is denied, what happens to the evidence? The
evidence remains on the record and will be considered in the course of the trial.
o Preliminary hearing of the affirmative defense:
1. Under Sec. 6 of Rule 16, if no motion to dismiss has been filed, any of the grounds for
dismissal provided for in this Rule may be pleaded as an affirmative defense in the
answer, and, in the discretion of the court, a preliminary hearing may be had thereon
as if a motion to dismiss had been filed.
2. Sec. 6 will only apply if you file an answer with affirmative defense without filing a
motion to dismiss. If you have filed a motion to dismiss ahead of an answer with
affirmative defense, there could be no preliminary hearing on the affirmative defense.
3. The preliminary hearing of the affirmative defenses is left to the sound discretion of
the court. It is the court who decides whether or not to call for a preliminary hearing.
But in practice, rarely do you find a court calling for a preliminary hearing, because
they have so many cases. In practice, it would be best to file a motion for a hearing on
an affirmative defense.

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RULE 17: Dismissal of Actions


o Dismissal by the plaintiff:
1. Dismissal upon notice by plaintiff40 - The plaintiff could dismiss his case before
an answer has been filed. Dismissal in this instance is a matter of right. The only
limitation provided for by law is that if the plaintiff has once dismissed his case, it
could only be filed again once, i.e. you are only entitled to another filing. The dismissal
is originally without prejudice, but after the first dismissal of the case, the subsequent
dismissal will now be with prejudice you cannot refile it anymore.
2. Dismissal upon motion of plaintiff41 - This partakes of a situation wherein there
is already an answer. The dismissal is left purely to the discretion of the court.
o What happens to the counterclaim, if pleaded? If the principal action has been
dismissed, but a counterclaim has been pleaded, the counterclaim will continue to survive
and will have to stand on its own merits.
o Can there be a dismissal upon a joint motion? Yes, there can be a dismissal upon joint
motion. You cannot find this in the Rules because it is mostly adopted in practice. What this
means is that the parties have agreed to compromise, that is why they filed a joint motion to
dismiss.
However, do they have a compromise agreement? We have two (2) scenarios:
1. The first scenario is where there is a compromise agreement not made known to the
court. In instances where the parties do not want to disclose the terms of their
compromise agreement, they will sign a compromise agreement, but they will not
submit it to the court for approval. What both parties will file is a joint motion to
dismiss, with prayer that the dismissal be with prejudice.
a. If one of the parties in the compromise agreement fail to comply with the terms
thereof, you can still recover. You can still run after the breaching party, but you
will have to file a new case because the compromise agreement was not made
known to the court. All you did was to ask the court to dismiss the case.
2. The second scenario is where the compromise agreement was submitted to the court
for approval. If the court adopts and admits the compromise agreement, it becomes a
compromise judgment a final and executory judgment. Once it becomes a
compromise judgment, if a party fails to comply with the same, what you must do is to
file a motion for execution.

Rule 17, Sec. 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a notice of
dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court
shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that
a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim.
40

41
Rule 17, Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a complaint shall not
be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems
proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the
dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his
counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without
prejudice. A class suit shall not be dismissed or compromised without the approval of the court.

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o Dismissal due to fault of plaintiff.42 A case may be dismissed, upon motion of the
defendant or upon the court's own motion, for the following reasons:
1. Failure to appear on the date of the presentation of his evidence in chief on the
complaint;
2. Failure to prosecute his action for an unreasonable length of time;
3. Failure to comply with the Rules of Court ;
4. Failure to comply with any order of the court.
Dismissal under any of the abovementioned grounds shall have the effect of an adjudication
upon the merits, unless otherwise declared by the court.

Rule 17, Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails to appear on the date of
the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to
comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the
court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate
action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.
42

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RULE 18: Pre-Trial


o Issuance of a Notice of Pre-Trial and a Notice of Preliminary Conference:
After issues are joined by the filing on an answer to the complaint, expect a notice of pretrial from the court. Pre-trial nowadays is longer than expected, not because the parties want
delay, but because the rules want the parties to mediate.
1. Once you receive a notice of pre-trial, you will also receive a notice of preliminary
conference. The notice of preliminary conference is not found in the Rules of Court,
it is found in the Guidelines of Pre-Trial and Modes of Discovery of 2004.
o Preliminary Conference: At least three (3) days to five (5) days before the pre-trial, there
is a preliminary conference before the Clerk of Court. Before the Clerk of Court, the parties
could stipulate, make admissions, mark documents, name witnesses, and explore the
possibility of compromise. Whatever is discussed, or taken up before the Clerk of Court will
be minuted and will form part of the records of the pre-trial.
o Pre-Trial Brief: The pre-trial conference based on the notice of pre-trial will be
scheduled on a particular date. The requirement of the law is that your pre-trial brief should
have been served and filed at least three (3) days before the date of the pre-trial conference.
1. Your pre-trial brief must contain the following: your willingness to enter into a
compromise; your admissions, i.e. those available on the records of the case
admissions in the complaint, answer, or reply; your proposed stipulations;43 your
willingness to avail of modes of discovery or of having availed of the same;44 your
documents that you would want to mark;45 the names of the witnesses, the purpose of
presenting them, and the length of time that they will be presented;46 your willingness
to avail of commissioners; and your willingness to avail of summary judgment or
judgment on the pleadings.
2. The effect of the non-filing of the pre-trial brief is equivalent to non-appearance. If you
are the plaintiff, your case will be dismissed. If you are the defendant, the plaintiff will
be allowed to present evidence ex parte.
o Referral to Mediation: Let us say that the pre-trial conference is set on June 15. On such
date, ordinarily, the pre-trial proper will not proceed because the court will issue an order
referring the matter to a mediator who will try to convince the parties to a compromise so
expect that the proceedings shall be suspended for the next thirty (30) to sixty (60) days
depending on the negotiations of the parties to a compromise.
o Referral to Judicial Dispute Resolution (JDR): If the mediation is unsuccessful, the
records will be returned to the court. Once the records are returned to court, the court can
still convince the parties to a compromise. Let us say that based on the order, the next setting
for the pre-trial conference shall be August 15. On such date, there is yet be no trial there
will be what you call judicial dispute resolution this time before a Judge as an independent
A proposed stipulation is not an admission. It is a mere proposal. One is not bound to agree to a proposal. Nothing in the law
requires you to agree to stipulate. It only becomes an admission if the other party agrees.
43

It does not mean that a deposition or a mode of discovery can only be applied at any time before pre-trial. Deposition can even
be applied after pre-trial.
44

Under the Guidelines of Pre-Trial and Modes of Discovery of 2004, the rule is all of the documents that you will present in the
course of the trial should be duly-marked and annexed. Failure to present your document during pre-trial would mean waiver
of your right to present the document during the trial. In practice, lawyers place the phrase plaintiff reserves the right to present
documents if and necessary in the course of the trial this phrase is useless under the 2004 Guidelines.
45

Failure to name the witnesses in the pre-trial brief would mean waiver of the right to present any witness not named in the pretrial in the course of the trial.
46

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conciliator. Expect again that the proceedings shall be suspended for the next thirty (30) to
sixty (60) days depending on the negotiations of the parties to a compromise.
o Pre-Trial Proper: If the JDR is unsuccessful, there will be the pre-trial proper - let us say
September 15. In the pre-trial proper, those that are enumerated in your pre-trial brief will
be walked-through by the Judge with both parties. In addition to that, you will also identify
the trial dates.
1. Under the JDR concept, the Judge (referred to as the JDR Judge) to whom the
complaint was assigned will handle the case until the JDR stage.
2. After the conclusion of the JDR, and the compromise is unsuccessful, the case will be
re-raffled, unless both parties agree that the case shall stay with the original Judge,
to a trial Judge, which shall handle the case from the pre-trial stage until judgment.
This is to avoid any impression that the Judge has already prejudged the case.
3. The trial court has the discretion on whether to grant or deny a motion to postpone
and/or reschedule the pre-trial conference in accordance with the circumstances
obtaining in the case. This must be so as it is the trial court which is able to witness
firsthand the events as they unfold during the trial of a case. Postponements, while
permissible, must not be countenanced except for clearly meritorious grounds and in
light of the attendant circumstances. (Paraaque Kings Enterprises, Inc., vs. Santos,
2014).
o Pre-Trial Order: Once the pre-trial is completed, the court will issue a pre-trial order,
which contains what the parties have agreed upon, stipulated on, the legal issues if identified
by the court and the parties, the documents that have been marked, and the witnesses to be
presented. Thereafter, you can already proceed to trial.
1. Who should be present during the pre-trial?
a. It shall be the duty of the parties and their counsel to appear at the pre-trial.
The non-appearance of a party may be excused only if a valid cause is shown
therefor or if a representative shall appear in his behalf fully authorized in
writing to enter into an amicable settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations or admissions of facts and of
documents. (Rule 18, Sec. 4).
b. The presence of the counsel is not sufficient. Both the parties and their counsel
shall appear at the pre-trial. That is why the court issues the notice of pre-trial
not only to the counsels, but also to the parties because the parties must be
present this is one of the exceptions to service of a notice to a non-lawyer.
2. Is there any excuse if the defendant is not present?
a. If there is a good reason for the absence, the court may allow it; and for that
reason, the pre-trial may be rescheduled.
b. The court or the party can name a representative who could appear in his place.
Most of the time, the defendants representative is the counsel.
3. What if the party is present, but the lawyer is absent? The pre-trial shall be
postponed reset to another date. You must present good reason for your absence,
because the court cannot proceed with pre-trial in the absence of a lawyer. The
consequence of your absence will not be suffered by your client because you are only a
lawyer.

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RULE 19: Intervention


o In intervention, there is already a pending case. You could intervene as a plaintiff to join the
original plaintiff, or as a defendant in intervention; or you could also be a complainant-inintervention against both the original plaintiff and the defendant.
o Is intervention mandatory? No, it is not mandatory. It is left to the sound discretion of
the court.
1. The intervenor must establish that he has legal interest and that his rights will be better
protected in the pending action. But if the court is convinced that the intervenors
rights can be better protected in a separate action in order not to delay the original
case, the court can deny the motion for intervention.
o The basic rule in terms of a timing of a motion for intervention is that you are to file a motion
for intervention according to Sec. 247 at any time before rendition of judgment before the trial
court. Theoretically, you can only intervene at the level of the trial court.
o Can you intervene at the Court of Appeals or at the Supreme Court? Yes, the Court
of Appeals and the Supreme Court sometimes allow intervention. Although there is no rule
on the matter, it is left to the discretion of the court.
o Can a simple mortgage lien be a basis for intervention by a plaintiff? No, it is not
a sufficient basis for a complaint-in-intervention. For you to be a plaintiff-in-intervention,
you should have your own cause of action.
o Can you still intervene if judgment is already final? No, you cannot intervene if
judgment is already final. This is the general rule, unless the intervenor is an indispensable
party because any judgment is null and void in the absence of an indispensable party.

Rule 19, Sec. 2. Time to intervene. The motion to intervene may be filed at any time before rendition of judgment by the
trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties.
47

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RULE 21: Subpoena


o Subpoena is a process originating from the court. Please take note that the provisions on
subpoena apply to both civil and criminal cases.
o The two (2) kinds of subpoena are as follow:
1. Subpoena ad testificandum used to compel a person to appear and to testify.
2. Subpoena duces tecum used to compel the production of books, records, things,
or documents therein specified to be brought to court for it to be examined or
identified by a witness.
a. In the case of H.C. Liebenow vs. The Philippine Vegetable Oil Company (1918),
the court held that: The subpoena duces tecum is, in all respects, like the
ordinary subpoena ad testificandum with the exception that it concludes with
an injunction that the witness shall bring with him and produce at the
examination the books, documents, or things described in the subpoena.
b. In the case of Roco vs. Contreras (2005), the court held that: Well-settled is
the rule that before a subpoena duces tecum may issue, the court must first be
satisfied that the following requisites are present: (1) the books, documents or
other things requested must appear prima facie relevant to the issue subject of
the controversy (test of relevancy); and (2) such books must be reasonably
described by the parties to be readily identified (test of definiteness).
c. The court further held that: In determining whether the production of the
documents described in a subpoena duces tecum should be enforced by the
court, it is proper to consider, first, whether the subpoena calls for the
production of specific documents, or rather for specific proof, and secondly,
whether that proof is prima facie sufficiently relevant to justify enforcing its
production. A general inquisitorial examination of all the books, papers, and
documents of an adversary, conducted with a view to ascertain whether
something of value may not show up, will not be enforced. (Id.)
d. If you would want to be able to look for documents or to avail of discovery, you
apply for, not a subpoena duces tecum, but a production or inspection of
documents or things under Rule 27.
o How do you quash a subpoena duces tecum? The rules provide that one can file a
motion to quash a subpoena duces tecum on the following grounds:
1.
2.
3.
4.
5.

That the subpoena is unreasonable and oppressive;


That there is no reasonable description of the books, papers, or documents;
That the relevancy of the books, documents or things does not appear, or
Failure to tender cost of its production.
Failure to tender witness fees and kilometrage48.

If the witness is within 100 kilometers from the place where the hearing is to be conducted, his appearance could be compelled
by subpoena. If he refuses to appear despite the service of subpoena, he could be arrested upon a bench warrant the court could
arrest him, or he could be placed on indirect contempt under Rule 71.
48

If the witness is not within, but more than 100 kilometers from the place where the hearing is to be conducted, he could not be
compelled by subpoena. The remedy of the person who would like to subpoena such witness is a deposition under Rule 23
(depositions pending action).

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o How do you quash a subpoena ad testificandum?


1. The basic ground for a motion to quash is that you are not bound thereby, e.g. because
of spousal privilege, filial privilege, dead mans statute, etc. these are
disqualifications. There is no reason to subpoena a person disqualified to testify.
Hence, the person is not bound thereby.
2. Failure to tender witness fees and kilometrage.
o The issuance of a subpoena can be done not only by the courts. A judge before whom a
deposition is taken can also issue a subpoena. An investigative office, like the NBI, can issue
a subpoena. The Office of the Prosecutor, and the Office of the Ombudsman can likewise issue
a subpoena. Both Houses of Congress can also issue a subpoena under their own rules.

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RULES 23 (Depositions Pending Action), 25 (Interrogatories to Parties),


and 29 (Refusal to Comply with Modes of Discovery)
o Once the court acquires jurisdiction, but before an answer is filed, you may file a motion to
take deposition. But when an answer has already been filed, what you will file is a notice to
take deposition.
o Depositions may be taken at any time after the institution of any action,
whenever necessary or convenient. But when viewed vis the several postponements
made by petitioner for the initial presentation of his evidence, we are of the view that his
timing is, in fact, suspect. Besides, even as we scrutinize petitioners arguments, we think that
he has not sufficiently shown an "exceptional" or "unusual" case for us to grant leave and
reverse the trial and appellate courts. (Pajarillaga vs. CA, 2008).
o What matters can be the subject of a deposition? Any matter can be the subject of a
deposition for as long as it is not privileged, but you have to establish its relevancy. For as
long as the matter is relevant, and not privileged, it could be a subject of deposition.
o What are the uses of a deposition? The uses of depositions are as follow: (1) For the
purpose of contradicting or impeaching the testimony of deponent as a witness on a prior
inconsistent statement; or (2) For any purpose, if the court finds:
1. That the witness is dead but you can only use the deposition or testimony taken in
an another proceeding, whether judicial or administrative, if it involves the same
parties, same subject matter, and there was an opportunity to cross-examine;49 or
2. That the witness resides at a distance more than 100 kms. from the place of trial or
hearing, or is out of the Philippines, unless it appears that his absence was procured
by the party offering the deposition; or
3. That the witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment; or
4. That the party offering the deposition has been unable to procure the attendance of
the witness by subpoena; or
5. Upon application and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the importance of presenting
the testimony of witnesses orally in open court, to allow the deposition to be used.
o Are you compelled to present as witness the person from whom you took the
deposition? No. The mere fact of taking the deposition does not make the deponent your
witness. But the very moment you use any portion of such deposition for any purpose other
than that of contradicting or impeaching the deponent, makes the deponent your witness
the entire deposition can already be examined. But this shall not apply to the use by an
adverse party of a deposition as described in par. (b) of Section 4, Rule 23.50

Rule 130, Sec. 47. Testimony or deposition at a former proceeding. The testimony or deposition of a witness deceased
or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter,
may be given in evidence against the adverse party who had the opportunity to cross-examine him.
49

Rule 23, Sec. 4, par. (b). - The deposition of a party or of any one who at the time of taking the deposition was an officer,
director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an
adverse party for any purpose.
50

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o Before whom should deposition should be taken?


1. Depositions within the PH may be taken before any Judge in the PH, any notary public,
or any person authorized to administer oath stipulated upon by the parties.
2. Depositions outside the PH may be taken before any of the following:
a. On notice before a secretary of embassy or legation, consul general, consul, viceconsul, or consular agent of the Republic of the Philippines;
b. Before such person or officer as may be appointed by commission or under
letters rogatory; or
c. Any person authorized to administer oath stipulated upon by the parties.
o What is the difference between a commission from that of letters rogatory? In
the case of Dulay vs. Dulay (2005), the court differentiated the two, viz: Generally, a
commission is an instrument issued by a court of justice, or other competent tribunal,
directed to a magistrate by his official designation or to an individual by name, authorizing
him to take the depositions of the witnesses named therein, while a letter rogatory is a
request to a foreign court to give its aid, backed by its power, to secure desired information.
1. Letters rogatory is a communication from one judicial authority to another the PH
court communicates with the foreign court. Commissions are taken in accordance
with the rules laid down by the court issuing the commission, while in letters rogatory,
the methods of procedure are under the control of the foreign tribunal. (Id.)
2. Leave of court is not required when the deposition is to be taken before a secretary of
embassy or legation, consul general, consul, vice-consul or consular agent of the
Republic of the Philippines and the defendants answer has already been served.
However, if the deposition is to be taken in a foreign country where the Philippines
has no secretary of embassy or legation, consul general, consul, vice-consul or consular
agent, it may be taken only before such person or officer as may be appointed by
commission or under letters rogatory. (Id.)
o Can a deposition officer be disqualified? Yes, under the grounds provided for by Sec.
13 of Rule 23, viz: No deposition shall be taken before a person who is a relative within the
sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who
is a relative within the same degree, or employee of such counsel; or who is financially
interested in the action.
1. As a rule, any disqualification will be considered as waived unless promptly raised
when it becomes known or available. If you see that there is a ground to disqualify, you
must raise it at the first available instance. Otherwise, the objection shall be deemed
waived.51
o Oral Depositions and Written Interrogatories, distinction:
1. In oral deposition, applying Sec. 1552, the notice or application for the taking of the oral
deposition should state the name of the deponent, the name of the officer before whom
Rule 23, Sec. 29, par. (b): As to disqualification of officer. Objection to taking a deposition because of disqualification
of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter
as the disqualification becomes known or could be discovered with reasonable diligence.
51

Rule 23, Sec. 15. Deposition upon oral examination; notice; time and place. A party desiring to take the deposition
of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall
state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the
name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion
of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time.
52

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the deposition is to be taken, the date, time, and the place where the deposition will be
taken; and of course, the reason for the taking of oral deposition.
a. In oral deposition, the applicant can present the deponent before the deposition
officer on the date, time, and place indicated in the notice or application, and
can ask direct and re-direct examination questions; while the other party can
conduct his cross-examination and re-cross-examination.
2. In written interrogatories,53 the contents of the notice or application for written
interrogatories are just the same in an application for the taking of oral deposition,
only that the questions, i.e. direct examination questions, prepared by the applicant
should be appended to the notice or application.
a. After which, the applicant serves it to the other party who will now prepare his
cross-written interrogatories within a period of ten (10) days from receipt - with
no answer yet at that time, the other party will have to anticipate and prepare
his cross-written interrogatories.
b. Once the other party serves his cross-written interrogatories to the applicant,
the applicant will have to prepare and serve his re-direct-written interrogatories
within a period of five (5) days.
c. Once the applicant serves it to the other party, the other party will have to
prepare and serve his re-cross-written interrogatories within a period of three
(3) days.
3. If you have objections54 on the taking of the written interrogatories, all of your
objections should be made within the time allowed for you to answer. If you have
objections, you must object immediately before you prepare your answer and/or
questions within the time allowed by the Rules. Otherwise, your objections will be
considered as waived.
o What is the difference between written interrogatories under Rule 23, and
written interrogatories under Rule 25?
1. Under Rule 23, there is direct, re-direct, cross, and re-cross written interrogatories.
Written interrogatories under this rule could be directed to a party, or a non-party to
the case.
2. Under Rule 25, there is no direct, re-direct, cross, and re-cross written interrogatories.
It is just a set of questions given to a party. Written interrogatories under this rule is

Rule 23, Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories. A party desiring
to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the
name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom
the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party
proposing to take the deposition. Within five (5) days thereafter the latter may serve re-direct interrogatories upon a party who
has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recrossinterrogatories upon the party proposing to take the deposition.
53

Rule 23, Sec. 26. Officers to take responses and prepare record. A copy of the notice and copies of all interrogatories
served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in
the manner provided by Sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the interrogatories
and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by
him.
Rule 23, Sec. 29, par. (e): As to form of written interrogatories. Objections to the form of written interrogatories
submitted under Sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the
time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories
authorized.

54

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just limited to a party to the case, and the form is only in the nature of a series of
questions.
o Why even serve a written interrogatory to a party to a case? The reason is found in
Sec. 6 of Rule 25.55 If you want to call the deponent on the witness stand as an adverse party
witness, the requirement is you have to serve written interrogatories in order not to surprise
the other party he should have been informed ahead of time of the subject of his possible
testimony. Also, if you have failed to serve written interrogatories, you cannot avail of
deposition pending appeal.
o What is the effect of failure to serve written interrogatories? The consequences of
the failure to serve written interrogatories are provided under Rule 29, Sec. 3 (c), and Sec. 5
viz:
1. Sec. 3 (c): Other consequences. If any party or an officer or managing agent of
a party refuses to obey an order made under Section 1 of this Rule requiring him to
answer designated questions, xxx the court may make such orders in regard to the
refusal as are just, and among others the following: An order striking out pleadings
or parts thereof, or staying further proceedings until the order is obeyed, or dismissing
the action or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.
2. Sec. 5: Failure of party to attend or serve answers. If a party or an officer
or managing agent of a party willfully fails to appear before the officer who is to take
his deposition, after being served with a proper notice, or fails to serve answers to
interrogatories submitted under Rule 25 after proper service of such interrogatories,
the court on motion and notice, may strike out all or any part of any pleading of that
party, or dismiss the action or proceeding or any part thereof, or enter a judgment by
default against that party, and in its discretion, order him to pay reasonable expenses
incurred by the other, including attorney's fees.
3. But before you impose the serious consequence of default, you should first
compel the defendant to answer. There should be a court order compelling the
defendant to answer. In the case of Jaravata vs. Karolus (2007), the court held that:
The Court of Appeals rightly held that the court a quo erred in rendering a judgment
by default against the defendants for refusal or failure to answer written
interrogatories, without first requiring an application by the proponent to compel an
answer. This is the requisite procedure under Section 1 of Rule 29 of the 1997 Rules of
Civil Procedure.
o Manner of taking a deposition:56 This is almost the same with oral and written
interrogatories.
Rule 25, Sec. 6. Effect of failure to serve written interrogatories. Unless thereafter allowed by the court for good
cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or to give a deposition pending appeal.

55

Rule 23, Sec. 17. Record of examination; oath; objections. The officer before whom the deposition is to be taken shall
put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony
of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time
of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence
presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the
deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties
served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the
witness and record the answers verbatim.
56

Rule 23, Sec. 19. Submission to witness; changes; signing. When the testimony is fully transcribed, the deposition shall
be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by
the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the
deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed
by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the

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1. Let us say that the oral deposition is taken today before you as a deposition officer. The
statements of the deponent as questions are being asked by lawyers will have to be
recorded by a stenographer, which is under your direction as a deposition officer.
2. Once the deposition is taken by the stenographer, the draft deposition will be given to
the deponent for his review and examination of the deposition i.e. to check if the
draft is a faithful transcription of the deposition.
a. If the deponent is satisfied that it is indeed a faithful transcription of the
deposition, he will affix his signature.
b. If the deponent refuses to sign, the reason for his refusal should be indicated in
the deposition. The signing of the deposition can be waived if the parties agreed
to waive it.
c. The deposition once signed by the deponent will also contain a certification that
deposition was freely and voluntarily made.
3. Once the deposition has been signed and properly certified by you as a deposition
officer, it will then be placed in a sealed envelope, and at the dorsal portion of the same,
you will indicate: Deposition of (persons name), and the same will be submitted to
court.
o What is the significance of Sections 17, 19, 20, and 21 of Rule 23? If the manner of
taking deposition is not followed, expect a motion to suppress deposition. This is the effect
of failure to comply with Sections 17, 19, 20, and 21 of Rule 23.
1. This rule is also followed in written interrogatories57, except that the lawyers will not
speak. All of the questions will be given to and collated by the deposition officer, who
shall read all the questions. All of the answers to the questions will be recorded and
will be submitted in the manner provided for under Sections 17, 19, 20 and 21.
o All errors or irregularities in the taking of the deposition, as a rule, are waivable. If you do
promptly call the attention of the court, it is waived, except competency or relevancy of
evidence. As a rule, this is the only error that is not waivable, except if it is something that
could have been obviated or corrected if presented at that time.

deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or
absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any, and the deposition may
then be used as fully as though signed, unless on a motion to suppress under Section 29(f) of this Rule, the court holds that the
reasons given for the refusal to sign require rejection of the deposition in whole or in part.
Rule 23, Sec. 20. Certification and filing by officer. The officer shall certify on the deposition that the witness was duly
sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)" and
shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing.
Rule 23, Sec. 21. Notice of filing. The officer taking the deposition shall give prompt notice of its filing to all the parties.
Rule 23, Sec. 26. Officers to take responses and prepare record. A copy of the notice and copies of all interrogatories
served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in
the manner provided by Sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the interrogatories
and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by
him.
57

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RULE 24: Depositions Before Action or Pending Appeal


o Can there be deposition-taking in criminal cases? Yes, there can be deposition-taking
in criminal cases.
o Can there be deposition-taking in special proceedings? Yes, there can be depositiontaking in special proceedings because the rules on civil procedure has suppletory application
to the rules on special proceedings.
1. Rule 72, Sec. 2 provides that: In the absence of special provisions, the rules provided
for in ordinary actions shall be, as far as practicable, applicable in special proceedings.
2. In addition, on the provisions on probate of the will, i.e. a notarial will, the law says
that if the witness does not reside anymore in the PH, or not available, his deposition
can be taken.
o Perpetuation of Testimony: Perpetuation of testimony is now under Rule 24. This rule
has superseded Rule 134. Rule 24 covers two (2) kinds of perpetuation:
1. Deposition before action:58 There is yet no pending case. The sole purpose of filing
the action (verified petition) is to be able to perpetuate testimony, i.e. to be able to get
a deposition. The venue of the action is the court of the place where the prospective
adverse party or would-be adverse party resides.
a. The most important things that you will have state in the petition are the name
of the deponent, and the purpose of the taking of the deposition, because what
you want to secure is an order from the court allowing the taking of deposition
of the person indicated in the petition.
2. Deposition pending appeal:59 This is also perpetuation of testimony. In this case,
there is already a final judgment, and an appeal has already been lodged or filed before
the appellate court.
a. If what is pending is a petition for certiorari, you do not use this action because
a petition for certiorari is not an appeal if you would want to take deposition
what you will file is an application or notice under Rule 23, i.e. depositions
pending action.
o Why would one file an action for deposition when there is already an appeal?
1. One scenario is where your case was dismissed, and it was appealed, and you are
hoping that your appeal will be given due course and that the dismissal of the trial
court be reversed. In the meantime, while waiting for the action of the appellate court,
you could file a motion to take deposition pending appeal in the same court in which

Rule 24, Sec. 1. Depositions before action; petition. A person who desires to perpetuate his own testimony or that of
another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court
of the place of the residence of any expected adverse party.

58

Rule 24, Sec. 7. Depositions pending appeal. If an appeal has been taken from a judgment of a court, including the
Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the
judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of
further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the
said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The
motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he
expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon
the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for
depositions taken in pending actions.
59

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the judgment was rendered to take the depositions of the witnesses to perpetuate their
testimony.
2. In your motion, you will have to identify the deponent, the purpose of the taking of the
deposition, the possible substance of his testimony, before whom the deposition
should be taken, and the date and time of the deposition.
o What is the consequence of refusal to answer a particular question? If only a
number of particular questions are not answered, Rule 29, Sec. 3 (c) will apply, viz: If any
party or an officer or managing agent of a party refuses to obey an order made under Section
1 of this Rule requiring him to answer designated questions, xxx the court may make such
orders in regard to the refusal as are just, and among others the following: An order striking
out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.
1. In the case of Sps. Zepeda vs. China Banking Corporation (2006), the court held that:
the consequences enumerated in Section 3(c) of Rule 29 would only apply where the
party upon whom the written interrogatories is served, refuses to answer a particular
question in the set of written interrogatories and despite an order compelling him to
answer the particular question, still refuses to obey the order.
o What is the consequence of refusal to answer the entire set of written
interrogatories? In case of refusal to answer the entire set of written interrogatories, what
will apply is Rule 29, Sec. 5, viz: If a party or an officer or managing agent of a party willfully
fails to appear before the officer who is to take his deposition, after being served with a proper
notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper
service of such interrogatories, the court on motion and notice, may strike out all or any part
of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter
a judgment by default against that party, and in its discretion, order him to pay reasonable
expenses incurred by the other, including attorney's fees.
1. In the instant case, petitioners refused to answer the whole set of written
interrogatories, not just a particular question. Clearly then, respondent bank should
have filed a motion based on Section 5 and not Section 3(c) of Rule 29. xxx Due to
respondent banks filing of an erroneous motion, the trial court cannot be faulted for
ruling that the motion to expunge was premature for lack of a prior application to
compel compliance based on Section 3. (Id.)

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RULE 26: Admission by Adverse Party


o When can you apply for a request for admission: You can apply for a request for
admission only when issues are joined, i.e. an answer has been filed.
o Can a lawyer answer the request for admission? A request for admission should be
directed to a party. However, if the request for admission was answered by the lawyer upon
authority and within the knowledge of the client, the request for admission may be accepted
by the court.
o What can be the subject of a request for admission? You can request for the
admission of any material and relevant matter of fact; and the genuineness and due execution
of any material and relevant document described in and exhibited or attached with the
request.
o Why should you ask for the admission of the document? If the document is
admitted, you do not have to authenticate it anymore. If a fact is admitted, you do not have
to prove it anymore because the fact is no longer contested. The goal of a request for
admission is to be able to cut short the process, to abbreviate the proceedings.
o What is the consequence of failure to respond to a request for admission? Failure
to respond amounts to an implied admission of each of the matters of which an admission is
requested.60
1. The very moment you receive a request for admission, make sure to respond to it. If
you think that the request for admission is not necessary, you object or you deny. If
you do not respond, it amounts to an admission. But very careful whenever you deny
the admission because it may not sit well with the court because under the rules,
there are consequences if you deny a fact which is within your knowledge and within
your competence.
2. If a fact which you denied is within your knowledge and within your competence when
you could have admitted the same, and the other party suffered costs and was able to
prove it nevertheless, you ought to reimburse the costs suffered by the other party in
proving that fact.
o Is the defendant required to respond to the request for admission if the subject
matter in the request for admission has been previously denied in an answer?
No, because those are matters already covered by the answer it has either been answered
or it has been denied.
1. A party should not be compelled to admit matters of fact already admitted by his
pleading and to make a second denial of those already denied in his answer to the
complaint. (Po vs. Court of Appeals, 1988).
2. If the factual allegations in the complaint are the very same allegations set forth in
the request for admission and have already been specifically denied or otherwise dealt
with in the answer, a response to the request is no longer required. It becomes,
Rule 26, Sec. 2. Implied admission. Each of the matters of which an admission is requested shall be deemed admitted
unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within
such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party
requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting
forth in detail the reasons why he cannot truthfully either admit or deny those matters.

60

Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to
the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until
such objections are resolved, which resolution shall be made as early as practicable.

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therefore, unnecessary to dwell on the issue of the propriety of an unsworn response


to the request for admission. (Concrete Aggregates Co. vs. Court of Appeals, 1997).
3. A request for admission that merely reiterates the allegations in an earlier pleading is
inappropriate under Rule 26 of the Rules of Court, which, as a mode of discovery,
contemplates of interrogatories that would clarify and tend to shed light on the truth
or falsity of the allegations in the pleading. Rule 26 does not refer to a mere reiteration
of what has already been alleged in the pleadings. (Id.)
4. However, in practice, what is done is you call the attention of the court file a
manifestation if you do not want to answer. Inform the court that the matters subject
of the request for admission has already been answered by indicating the particular
portions of the answer covering the matters of the request for admission and for this
reason, you do not want to repeat it again.
o Matters of law, conclusions, or opinions cannot be responded to in a request for
admission. In the case of DBP vs. CA (2005), the court held that: The rule authorizing a
party to call on the other party to make an admission implies the making of demands for
admission of relevant and material matters of facts, and not for admission of matters of law,
conclusions, or opinions. Since the afore-quoted allegations are matters of law or opinion,
they are improper matters and cannot therefore be deemed impliedly admitted under Rule
26.

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RULE 27: Production or Inspection of Documents or Things


o The sole section61 of this rule can be broken down into two (2) orders of the court:
1. Order allowing production of books, papers, documents; and
2. Order allowing the entry into the premises to be able to photograph, measure, survey,
or inspect the premises.
o Rule 27 is not an ocular inspection. Ocular inspection, which is covered by Rule 130, Sec. 1,62
is not a mode of discovery.
o The Amparo Rule is not likened to searches and seizure. It is likened to Rule 27, a mode of
discovery. In the case of Sec. of National Defense vs. Manalo (2008), the court held that:
The production order under the Amparo Rule should not be confused with a search warrant
for law enforcement xxx Instead, the amparo production order may be likened to the
production of documents or things.
1. In the case of Material Distributors (Phil.) Inc. v. Judge Natividad (1949) where the
respondent Judge, under authority of Rule 27, issued a subpoena duces tecum for the
production and inspection of among others, the books and papers of Material
Distributors (Phil.) Inc., the court struck down the argument that the issuance of the
subpoena violated the search and seizure clause. The court held that: the subpoena
pertained to a civil procedure that cannot be identified or confused with unreasonable
searches prohibited by the Constitution.
o Books, papers, and documents to be produced under Rule 27 should not only be relevant, but
must also be described with sufficient particularity.
1. In the case of Solidbank vs. Gateway (2008), the court held that: Solidbanks motion
was fatally defective and must be struck down because of its failure to specify with
particularity the documents it required Gateway to produce. Solidbanks motion for
production and inspection of documents called for a blanket inspection. Solidbanks
request for inspection of all documents pertaining to, arising from, in connection with
or involving the Back-end Services Agreement was simply too broad and too
generalized in scope.
2. The court further held that: A motion for production and inspection of documents
should not demand a roving inspection of a promiscuous mass of documents. The
inspection should be limited to those documents designated with sufficient
particularity in the motion, such that the adverse party can easily identify the
documents he is required to produce. (Id.)

Rule 27, Sec. 1. Motion for production or inspection; order. Upon motion of any party showing good cause therefor,
the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing,
by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or
tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in
his possession, custody or control; or (b) order any party to permit entry upon designated land or other property in his possession
or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object
or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and
photographs, and may prescribe such terms and conditions as are just.
61

Rule 130, Sec. 1. Object as evidence. Objects as evidence are those addressed to the senses of the court. When an object
is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.
62

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RULE 28: Physical and Mental Examination of Persons


o This is a mode of discovery that has a very limited application. You can only request for a
physical and mental examination of a party if his mental and physical condition is in issue or
in controversy, e.g. guardianship, where the mental and physical condition of the ward is in
question, psychological incapacity, as long as the mental and physical condition of the
spouse is in question.
o Can the court motu proprio order a physical or mental examination of a person?
Yes, this is an inherent power of the court, under criminal procedure to compel physical or
mental examination. This is not a mode of discovery - this is different from Rule 28.
o What is the effect of providing the person, who requested for the same, a copy
of his own mental examination? The effect is that any privilege such person may have in
that action or any other action involving the same controversy is deemed waived.63 The
opposing party can now ask for a copy of the persons previous or subsequent physical or
mental examination.
1. If the examined person refuses to provide the requesting party a copy of the previous
or subsequent physical or mental examination, and a witness is presented, e.g. one of
the examined persons doctors, the testimony of the doctor would be rendered
admissible.

63
Rule 28, Sec. 4. Waiver of privilege. By requesting and obtaining a report of the examination so ordered or by taking the
deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the
same mental or physical examination.

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RULE 30: Trial64


o This rule presents the order of presentation of evidence in terms of who presents first, i.e.
order of trial, but not the order of examination of witnesses which is provided for under Rule
132.
o Order of Examination of Witnesses:65
1. Direct examination. Direct examination is the examination-in-chief of a witness
by the party presenting him on the facts relevant to the issue. (Rule 132, Sec. 5). This
is also called evidence-in-chief. For as many witnesses that you have, that is as many
evidence-in-chief that you will have.
2. Cross-examination.66 - Cross-examination is to impeach67 and to elicit information.
But practitioners rarely elicit information because it is very hard to control someone
who is not your witness.
a. There are three (3) ways to impeach a witness:
i. By contradictory evidence;
ii. By evidence that the general reputation for truth, honesty, or integrity of
the witness is bad; and
iii. By prior inconsistent statements, but you have to lay the circumstances
of time, place, and persons.
b. Questions on cross-examination will be limited to matters taken up on direct
examination. However, there are instances wherein the lawyer would ask
questions which would appear to be beyond the matters taken up on direct
examination of course the party presenting the witness will have to object.
The lawyer directing the cross-examination would then say: But your Honor, I
am on cross-examination, and for this reason I should be given sufficient leeway
to test the credibility and the integrity of the answer of the witness. The court
will somehow give a certain leeway on cross examination.

64

This rule is a provision on civil cases. Criminal procedure has a parallel provision, i.e. Rule 119.

Rule 132, Sec. 4. Order in the examination of an individual witness. The order in which an individual witness may be
examined is as follows:
65

(a)
(b)
(c)
(d)

Direct examination by the proponent;


Cross-examination by the opponent;
Re-direct examination by the proponent;
Re-cross-examination by the opponent.

Rule 132, Sec. 6. Cross-examination; its purpose and extent. Upon the termination of the direct examination, the
witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith,
with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to
elicit all important facts bearing upon the issue.
66

Rule 132, Sec. 11. Impeachment of adverse party's witness. A witness may be impeached by the party against whom
he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by
evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular
wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been
convicted of an offense.
67

Rule 132, Sec. 13. How witness impeached by evidence of inconsistent statements. Before a witness can be impeached
by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related
to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any
question is put to him concerning them.

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3. Re-direct examination.68 This is used to allow the party or his counsel to require
the witness to explain or to supplement his testimony. On re-direct examination, only
matters taken up on cross-examination can be asked.
a. On cross-examination in a criminal case, a question was asked this way:
Counsel 2: Were you with the rape victim on the night that she was raped?
(This is a very pointed question, just answerable by either a yes, or a no).
Witness: Attorney, I want to explain before I give the answer.
Counsel 2: No, you do not need to explain. Just tell me, were you there? Were
you with the victim on the night that she was raped? Just answer me, yes? or
no?
Witness: Yes.
b. On re-direct examination, the counsel of the witness can ask him this question:
Counsel 1: Mr. Witness, you answered a while ago a question that goes this
way: Were you with the rape victim on the night that she was raped? What
was your answer again, Mr. Witness?
Witness: Yes.
Counsel 1: Why were you there?
Witness: (Explains).
4. Re-cross-examination.69 As a rule, only matters taken up on re-direct examination
can be the subject of the re-cross-examination. But, the court can exercise reasonable
discretion to allow questions even if not taken up on re-direct examination.
o Cancellation of Hearing, grounds of: In criminal cases, cancellation of hearing is
referred to as continuance. There are only two (2) acceptable grounds for a cancellation of
hearing:
1. Absence of evidence70 includes absence of a witness - testimonial evidence,
absence of an object, or absence of a document. For the court to consider this reason,
you will have to establish that the evidence is material and relevant; and that despite
the exercise of reasonable diligence, you cannot present the evidence during trial.
a. But despite the fact that the evidence is not available, the court may allow the
proceeding or trial or the hearing to continue if there is a reservation of the
right to object to the evidence when it is presented.
Rule 132, Sec. 7. Re-direct examination; its purpose and extent. After the cross-examination of the witness has been
concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the crossexamination. On re-direct examination, questions on matters not dealt with during the cross-examination, may be allowed by the
court in its discretion.
68

69
Rule 132, Sec. 8. Re-cross-examination. Upon the conclusion of the re-direct examination, the adverse party may recross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by
the court in its discretion.

Rule 30, Sec. 3. Requisites of motion to postpone trial for absence of evidence. A motion to postpone a trial on the
ground of absence of evidence can be granted only upon affidavit showing the materiality or relevancy of such evidence, and that
due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or
reserves the right to object to their admissibility, the trial shall not be postponed.

70

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2. Illness of the counsel or the party71 - the requisites of this ground are as follow:
a. That the illness is that which would render his non-appearance as excusable;
and
b. That the presence in court of the counsel or the party is indispensable.
o Can the court render judgment without trial? Yes, the court can render a judgment
without a trial.72 When there is no factual controversy, whether wholly or partially, the court
can require the parties to simply submit memoranda, and since there is no factual
controversy, there is no need for evidence to be presented. All that is left for the court to
resolve would be the question of law.
o Who should receive evidence in court?73 It is the duty of the Judge to receive evidence
presented in court. But the duty to receive evidence can be delegated by the Judge to the Clerk
of Court in the following instances: in cases of ex parte proceedings, in cases of default, and
when the parties so stipulate.
1. Any matter could be delegated to the Clerk of Court if the parties so stipulate; but
ordinarily, the matter that is referred to a Clerk of Court for reception of evidence are
mostly ex parte and default cases because the defendant is not present.
o Cases where the reception of evidence can be delegated to the Clerk of Court:
1. Land registration cases, if there is no oppositor;
2. Change of name, if there is no oppositor;
o Can the reception of evidence in adoption cases be delegated to the Clerk of
Court? No, the reception of evidence in adoption cases cannot be delegated to the Clerk of
Court.
1. Under SC Circular No. 12 (October 2, 1986), Judges are directed to personally hear all
adoption cases and desist from the practice of delegating the reception of evidence of
the petitioner to the Clerk of Court - the matter of adoption being particularly the
concern not only of the State, but also of the courts.

Rule 30, Sec. 4. Requisites of motion to postpone trial for illness of party or counsel. A motion to postpone a trial
on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presence
of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance
excusable.
71

Rule 30, Section 6. Agreed statement of facts. The parties to any action may agree, in writing, upon the facts involved
in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties
agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe.
73
Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of court. The judge of the court where the case is
pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any
case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of
the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections
shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the
hearing.
72

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RULE 31: Consolidation74 or Severance75


o When we talk of joinder of causes of action, we refer to an instance or a situation where there
are yet no pending cases. It is permissive, not mandatory, and is left to the party instituting
the action. On the other hand, when we talk of consolidation, there are already pending cases
in court. What you should remember in consolidation is that both cases must involve a
common fact or law.
o Can you consolidate an action for the issuance of a writ of possession together
with an action for annulment of the foreclosure sale? No. Although it appears that
both actions involve the same parties, the writ of possession is a separate and distinct case
from an annulment of foreclosure sale. The nature of the cases cannot be consolidated annulment of foreclosure sale being an ordinary action, while the application for a writ of
possession being an ex parte proceeding and summary in nature.
o Can you consolidate a case pending in Iloilo and that pending in Makati? Yes, as
long as there is a common fact or law involving the same parties.
1. In the case of Zulueta vs. Asia Brewery (2001), the court held that: Two cases
involving the same parties and affecting closely related subject matters must be
ordered consolidated and jointly tried in court, where the earlier case was filed. The
consolidation of cases is proper when they involve the resolution of common questions
of law or facts. Indeed, upon the consolidation of the cases, the interests of both parties
in the two civil cases will best be served and the issues involved therein expeditiously
settled. After all, there is no question on the propriety of the venue in the Iloilo case.
But in practice, a consolidation in the nature of the aforementioned case is an
administrative nightmare.
o The more common consolidation is a consolidation pending in the same station. It will be
consolidated in the court bearing the lowest docket number, i.e. the first case filed by filing a
motion to consolidate in all of the courts with the prayer that the same be transferred to the
court bearing the lowest docket number.
o Consolidation, three (3) concepts: As held in Republic v. Sandiganbayan (Fourth
Division), citing American jurisprudence, the term "consolidation" is used in three (3)
different senses or concepts, thus:
1. Quasi-consolidation - Where all except one of several actions are stayed until one
is tried, in which case the judgment in one trial is conclusive as to the others. This is
not actually consolidation but is referred to as such;
2. Actual consolidation - Where several actions are combined into one, lose their
separate identity, and become a single action in which a single judgment is rendered.
This is illustrated by a situation where several actions are pending between the same
parties stating claims which might have been set out originally in one complaint.
3. Consolidation for Trial - Where several actions are ordered to be tried together but
each retains its separate character and requires the entry of a separate judgment. This
type of consolidation does not merge the suits into a single action, or cause the parties
to one action to be parties to the other. (Neri vs. Sandiganbayan, 2013).
74
Rule 31, Sec. 1. Consolidation. When actions involving a common question of law or fact are pending before the court, it
may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it
may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Rule 31, Sec. 2. Separate trials. The court, in furtherance of convenience or to avoid prejudice, may order a separate trial
of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues.
75

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o Consolidation, as taken in the above senses, is allowed under Rule 31. The counterpart, but
narrowed, rule for criminal cases is found in Sec. 22, Rule 119, viz: Sec. 22. Consolidation of
trials of related offenses. - Charges for offenses founded on the same facts or forming part of
a series of offenses of similar character may be tried jointly at the discretion of the court.
1. Quasi-consolidation is more common in criminal cases. You cannot have actual
consolidation in criminal cases because the nature of each of the cases must be
retained every offense has one (1) information. Criminal cases are consolidated only
for purposes of trial.

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RULE 32: Trial by Commissioner


o Who is a commissioner? A commissioner may be a referee, an examiner, or an auditor.
o What matters could be referred to a commissioner? Any matter could be referred to
a commissioner, for as long as the parties agree and stipulate.
1. If the parties do not agree, the matters that could be referred to a commissioner are
limited to the following:76
a. If the records are so long and voluminous;
b. If there are questions of facts arising, other than upon the pleadings; or those
facts arising out of motions; and
c. Those facts which are necessary for the court to render a judgment.
o The most important order that you will get from the court is what you call an order of
reference which will outline what the commissioner can do, including the powers of the
commissioner.77
o Other proceedings that recognize appointment of commissioners:
1. Expropriation under Rule 67, where reference to commissioners is mandatory; and
2. Partition, under Rule 69, where reference to commissioners is not mandatory - the
appointment of a commissioner under Rule 69 will only set in if the parties do not
agree to the partition.
o If there is already an order of reference, and the commissioner has already been
placed on oath, what should the commissioner do? The commissioner, who is placed
under oath, must conduct a conference to be held within ten (10) days after the date of the
order of reference and shall notify the parties or their counsel; and once the conference is
completed, submit a written report to the court upon matters submitted to him by the order
of reference.
1. Once the written report is submitted to the court, the Clerk of Court shall give a copy
to the parties, and shall allow the parties to comment within a period 0f ten (10) days.
2. Upon the expiration of the period of ten (10) days, the report shall be set for hearing,
after which the court shall issue an order whether or not to adopt, reject, accept a
portion of the report and reject the rest, or recommit it to the commissioner.

76
Rule 32, Sec. 2. Reference ordered on motion. When the parties do not consent, the court may, upon the application of
either, or of its own motion, direct a reference to a commissioner in the following cases:

a.
b.
c.

When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner
may be directed to hear and report upon the whole issue or any specific question involved therein;
When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment
or order into effect;
When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for
carrying a judgment or order into effect.

Rule 32, Sec. 3. Order of reference; powers of the commissioner. When a reference is made, the clerk shall forthwith
furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner,
and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence
only, and may fix the date for beginning and closing the hearings and for the filing of his report. Subject to the specifications and
limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing
before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order.
He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference,
he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as it would if held
before the court.
77

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3. Ordinarily, the costs of the appointment of the commissioners would have to be


suffered by the losing party, but of course the parties could agree to apportion the costs
between themselves.
o Can the commissioner resolve objections? Yes, the commissioner can resolve
objections if such power is within the order of reference.
o Can the commissioner resolve matters of admissibility of evidence? Yes, the
commissioner can resolve matters of admissibility if such power is within the order of
reference.
o Can the commissioner issue a subpoena? Yes, the commissioner can issue subpoena if
such power is within the order of reference.

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RULE 33: Demurrer to Evidence


o When to file a demurrer to evidence?
1. In civil cases, you file the demurrer after the plaintiff has completed the presentation
of his evidence, i.e. after the formal offer of evidence is acted upon by the court,
whether or not it is accepted, or whether certain evidence rejected or denied by the
court.
2. In criminal cases, you file the demurrer after the prosecution has rested its case, i.e.
after the formal offer of evidence is acted upon by the court, whether or not it is
accepted, or whether certain evidence rejected or denied by the court.
o Do you need leave of court to file a demurrer to evidence?
1. In civil cases, there is no need for a leave of court to file a demurrer to evidence.
2. In criminal cases,78 you may file a demurrer to evidence with or without leave, but you
must live with the consequences. If the demurrer is filed with leave of court, and the
demurrer is denied, you could still present evidence. But if the demurrer is filed
without leave of court, and the demurrer is denied, the court could already render a
judgment.
a. You may file a leave of court to file a demurrer to evidence within five (5) days
after the prosecution has rested its case. If the court grants you leave, only then
will you file the demurrer to evidence within ten (10) days from notice.
o What is the effect of a grant or denial of a demurrer to evidence in civil cases?
1. If the demurrer is granted, the case will be dismissed. This an adjudication on the
merits, hence a final judgment.
But if the Court of Appeals reverses the dismissal upon appeal by the plaintiff, the
defendant cannot be allowed to present evidence. The Court of Appeals can already
render judgment without allowing the defendant to present evidence.
2. If the demurrer is denied, you may present evidence, or you may file a motion for
reconsideration. If your motion for reconsideration is denied, you may file a petition
for certiorari under Rule 65 only if the denial is tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction.

Rule 119, Sec. 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the
ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon
demurrer to evidence filed by the accused with or without leave of court.
78

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the
demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a nonextendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a nonextendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from
notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by
appeal or by certiorari before judgment.

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o What is the effect of a grant or denial of a demurrer to evidence in criminal


cases?
1. If the demurrer is granted, such grant amounts to an acquittal. The general rule is that
an acquittal is a final determination of the case you cannot file a motion for
reconsideration nor an appeal.
2. If the demurrer is denied, the effect of the denial depends on whether the demurrer
was filed with leave of court, or without leave of court. You cannot file an appeal or a
certiorari until after the termination of the case.
o The general rule in criminal cases is that any dismissal prompted by the accused or with the
express consent of the accused, will not lead to double jeopardy. The exceptions to this rule
are (1) demurrer to evidence, because it is the accused that initiates or files the demurrer to
evidence; and (2) dismissal on the ground of speedy trial.
RULE 34: Judgement on the Pleadings
o There can be judgment on the pleadings if the answer fails to tender an issue, i.e. you did not
raise a factual controversy. You did not object nor deny anything - stated otherwise, you
admitted the material allegations of the complaint without raising any affirmative defense.
But once there is a material factual controversy, judgment on the pleading cannot be had.
o There will be no presentation of evidence. The judgment will only be limited to the complaint,
including its attachments, and the answer. However, in actions for declaration of nullity or
annulment of marriage or for legal separation, there can be no judgment on the pleadings.
The material facts alleged in the complaint shall always be proved, i.e. there will be
presentation of evidence.
1. In the case of Sps. Mongao vs. Pryce Properties Corporation (2005), the court held
that: When the answer asserts affirmative defenses, there is proper joinder of issues
which must be ventilated in a full-blown trial on the merits and cannot be resolved by
a mere judgment on the pleadings.
2. The court further held that: There is joinder of issues when the answer makes a
specific denial of the material allegations in the complaint or asserts affirmative
defenses which would bar recovery by the plaintiff. Where there is proper joinder of
issues, the trial court is barred from rendering judgment based only on the pleadings
filed by the parties and must conduct proceedings for the reception of evidence. On
the other hand, an answer fails to tender an issue where the allegations admit the
allegations in support of the plaintiffs cause of action or fail to address them at all. In
either case, there is no genuine issue and judgment on the pleadings is proper. (Id.)

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RULE 35: Summary Judgments


o Judgment on the Pleadings, and Summary Judgments, compared:
1. Unlike judgment on the pleadings where there must first be an answer which does not
tender an issue, in summary judgments, the time to file one depends on who among
the parties is applying for it. If it is the plaintiff, he can apply for a summary judgment
at any time after an answer. If it is the defendant, he can apply for a summary judgment
at any time, even before an answer is filed.
2. On a judgment on the pleadings, the judgment is only limited to the complaint,
including its attachments, and the answer; while on a summary judgment, the
judgment goes beyond the pleadings, i.e. affidavits, papers, documents not part of the
pleadings, depositions all of these are considered in a summary judgment.
3. On a judgment on the pleadings, the judgment is always a complete judgment. On a
summary judgment, there can be a complete summary judgment, and a partial
summary judgment, in which case there can be a separate judgment.
o What is the basis of a summary judgment? The basis of a summary judgment is that,
except as to the amount of damages, there is no genuine issue as to any material fact. This
simply means that you would have to prove damages, because damages like moral and
exemplary are normally unliquidated.
1. For you to determine whether an issue is genuine or not, you will have to determine
whether or not the issue is false or sham because it is very easy to make an issue out of
nothing.
2. In the case of Wood Technology Corp. vs. Equitable Banking Corp. (2005), the court
held that: Applying the requisites of a judgment on the pleadings vis--vis a summary
judgment, the judgment rendered by the RTC was not a judgment on the pleadings,
but a summary judgment. Although the Answer apparently raised issues, both the RTC
and the Court of Appeals after considering the parties pleadings, petitioners
admissions and the documents attached to the Complaint, found that the issues are
not factual ones requiring trial, nor were they genuine issues.
3. The court further held that: Summary judgment is a procedure aimed at weeding out
sham claims or defenses at an early stage of the litigation. The proper inquiry in this
regard would be whether the affirmative defenses offered by petitioners constitute
genuine issues of fact requiring a full-blown trial. In a summary judgment, the crucial
question is: are the issues raised by petitioners not genuine so as to justify a summary
judgment? A "genuine issue" means an issue of fact which calls for the presentation of
evidence, as distinguished from an issue which is fictitious or contrived, an issue that
does not constitute a genuine issue for trial. (Id.)
o Can there be a summary judgment in a case involving quieting of title? Yes, in the
case of Eland Philippines, Inc. vs. Garcia (2010), and in a number of similar cases, the court
held that: Any action can be the subject of a summary judgment with the sole exception of
actions for annulment of marriage or declaration of its nullity or for legal separation.

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RULE 36: Judgments, Final Orders and Entry79 Thereof


o What is a judgment? A judgment is a resolution or a decision of the court stating the facts
and the law upon which it is based. The court has to explain and state the basis of its
judgment.
o Final Judgment and Interlocutory Order, distinctions: Final judgment and
interlocutory order will determine the remedy available to one who questions said final
judgment and interlocutory order.
1. A final judgment or order is one that finally disposes of a case, leaving nothing more
for the court to do in respect thereto - such as an adjudication on the merits which, on
the basis of the evidence presented at the trial, declares categorically what the rights
and obligations of the parties are and which party is in the right, or a judgment or order
that dismisses an action on the ground of res judicata or prescription, for instance.
(Intramuros Tennis Club, Inc. vs. Philippine Tourism Authority, 2000).
2. An interlocutory order, on the other hand, is one that does not finally dispose of the
case, such as an order denying a motion to dismiss under Rule 16 of the Rules of Court,
or granting a motion for extension of time to file a pleading. (Id.)
3. Only final judgments or orders, as opposed to interlocutory orders, are appealable. A
final judgment or order becomes final and executory upon expiration of the period to
appeal therefrom where no appeal has been duly perfected or, an appeal therefrom
having been taken, the judgment of the appellant court in turn becomes final. It is
called a final and executory judgment because execution at such point issues as a
matter of right. (Id.)
4. As a general rule, there is no remedy to an interlocutory order. You must proceed with
the case because the case survives, unless the interlocutory order is tainted with grave
abuse of discretion amounting to lack or excess of jurisdiction, in which case you can
file a petition for certiorari under Rule 65.
o A judgment is immutable and unalterable. If the judgment has become final and executory,
it can no longer be disturbed, except in the following cases: (1) in cases of clerical or
typographical errors; (2) in cases of nunc pro tunc judgment; and (3) in cases of null and
void judgment.
1. A nunc pro tunc judgment is a judgment that does not speak the truth. In a nunc
pro tunc judgment, the court has already confronted and passed judgment on it,
except that the judgment did not reflect it that is why the even if the judgment has
attained finality, it can still be altered or amended.
o When will a judgment attain finality? After service to the counsel of record, a judgment
or order which is not appealed nor made subject of a motion for reconsideration within the
prescribed 15-day period attains finality.
1. For as long as there is no proper service of judgments or decisions to the counsel of
record, the reglementary period will not start to run. The period will only start to run
upon receipt, personally or by registered mail, of the judgment or decision.

Rule 36, Sec. 2. Entry of judgments and final orders. If no appeal or motion for new trial or reconsideration is filed
within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries
of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall
contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment
or final order has become final and executory.
79

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2. In the case of Sps. Topacio vs. Banco Filipino (2010), the court held that: As a rule,
judgments are sufficiently served when they are delivered personally, or through
registered mail to the counsel of record, or by leaving them in his office with his clerk
or with a person having charge thereof.80 After service, a judgment or order which is
not appealed nor made subject of a motion for reconsideration within the prescribed
15-day period attains finality.
o A judgment can only have effect if it was rendered by the judge or the justice during the time
that he has authority, i.e. before his promotion, retirement, resignation, or death.
o Can a judge validly render a decision even if he did not hear the witnesses? Yes,
the judge can validly render a decision despite the fact that he did not hear any of the
witnesses. For as long as the judge was able to review the records and the TSN, he can render
a valid decision.
o Separate Judgment and Several Judgment, distinction: A separate judgment is
based on claims, e.g. partial summary judgment where the court resolves a particular claim;
while a several judgment is based on parties.

80
Rule 13, Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be
served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments,
final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party.

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Remedies during the Reglementary Period


(Motion for Reconsideration, Motion for New Trial, and Appeal)
o Motion for Reconsideration (Rule 37) this remedy requires no further proceedings,
i.e. there will be a hearing because of the requirement under Rule 15, but there will be no trial
all over again. You can file a motion for reconsideration if you believe that: (1) the judgment
is contrary to law; (2) the award of damages is excessive; or (3) the judgment is not supported
by evidence.
o Motion for New Trial (Rule 37) you can file a motion for new trial on the following
grounds: (1) newly-discovered evidence, i.e. the evidence was not yet available during trial
despite exercise of diligence to procure it; and (2) fraud, accident, mistake, and excusable
neglect (FAME).
1. A motion based on FAME shall be supported by affidavits of merits which may be
rebutted by counter-affidavits. A motion based on newly-discovered evidence shall be
supported by affidavits of the witnesses by whom such evidence is expected to be given,
or by duly authenticated documents which are proposed to be introduced in evidence.
2. The effect of a grant of a motion for new trial is that the original judgment or final
order shall be vacated, and the action shall stand for trial de novo; but the recorded
evidence taken upon the former trial, in so far as the same is material and competent
to establish the issues, shall be used at the new trial without retaking the same.
3. You cannot ask for an extension of time to file a motion for reconsideration nor a
motion for new trial. In De Leon vs. Hercules Agro Industrial Corporation (2014),
citing the case of Habaluyas Enterprises Inc. vs. Japson (1986), the court held that:
No motion for extension of time to file a motion for new trial or reconsideration may
be filed with the MTCs, the RTCs, and the IAC. Such a motion may be filed only in
cases pending with the Supreme Court as the court of last resort, which may in its
sound discretion either grant or deny the extension requested.
4. The pending motion for reconsideration before the Court of Appeals, in case an appeal
is filed with the Supreme Court, shall be deemed abandoned. In the case of People vs.
Odilao (2004), the court held and cited Section 15, Rule VI of the 2002 Internal Rules
of the Court of Appeals, which explicitly provides thus: Effect of Filing an Appeal in
the Supreme Court. - No motion for reconsideration or rehearing shall be acted upon
if the movant has previously filed in the Supreme Court a petition for review on
certiorari or a motion for extension of time to file such petition. If such petition or
motion is subsequently filed, the motion for reconsideration pending in this Court
shall be deemed abandoned.
5. The Fresh-Period Rule (Neypes vs. CA, 2005): The Neypes ruling practically changed
how a motion for reconsideration and a motion for new trial, in terms of the period, is
counted.
a. Before the Neypes ruling, if you file a motion for reconsideration, or a motion
for new trial, and such motion is denied, you are left with the remaining time of
the 15-day appeal period to file the notice of appeal. If you filed the motion for
reconsideration or the motion for new trial on the last day of the 15-day
reglementary period to appeal, you only have one (1) day left (because the act
that caused the interruption is not included in the counting) to file the notice of
appeal upon receipt of the notice of denial of the motion for reconsideration or
motion for new trial.

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b. With the Neypes ruling today, you have the Fresh-Period Rule. If you file a
motion for reconsideration or a motion for new trial, and it is denied, your
period of fifteen (15) days starts to run again upon receipt of the denial.
c. The prevailing rule today is that whatever mode of appeal that you had, if there
was a motion for reconsideration previously filed which was denied, you will
have a fresh period of fifteen (15) days upon receipt of the denial.
d. The Neypes rule is also applicable in criminal cases. In the case of Yu vs. Tatad
(2011), the court held that: The provisions of Section 3 of Rule 41 and Section
6 of Rule 122, though differently worded, mean exactly the same. There is no
substantial difference between the two provisions insofar as legal results are
concerned the appeal period stops running upon the filing of a motion for new
trial or reconsideration and starts to run again upon receipt of the order
denying said motion for new trial or reconsideration. It was this situation that
Neypes addressed in civil cases. No reason exists why this situation in criminal
cases cannot be similarly addressed.
o Appeals (Rules 40 to 45) - the modes of appeal can be basically divided into three:
1. Ordinary Appeal81 under Rules 40 and 41;
2. Petition for Review under Rules 42 and 43; and
3. Petition for Review on Certiorari under Rule 45.
o Ordinary Appeal (Rules 40 and 41): The appeal to the Court of Appeals in cases decided
by the RTC in the exercise of its original jurisdiction shall be taken by filing a notice of appeal
or a record on appeal82 with the court which rendered the judgment or final order appealed
from and serving a copy thereof upon the adverse party.
1. Can the RTC, as an appellate court, review matters which were not
assigned as errors? Yes, the RTC can review matters which were not assigned as
errors. Under Rules 40 and 41, the RTC can review the entire records of the case, so
even if it was not assigned error, the court can pass judgment over the same.
2. Can the Court of Appeals review matters which were not assigned as
errors? No, the Court of Appeals cannot review matters which were not assigned as
errors. Under Rule 41, in relation to Rule 44, as differentiated from Rules 40 and 41 as
applied in the RTCs, the Court of Appeals can only review matters assigned as errors.
3. Is the procedure in the RTC as an appellate court the same as the
procedure in the Court of Appeals? No, the procedure is not the same. In the
81
The appeal is called an ordinary appeal because it is a one-step appeal. You can file a notice of appeal within 15 days, or a record
on appeal within 30 days, from receipt of the assailed judgment.

A notice of appeal must state that you received the decision, so that the reglementary period could be counted, that you are
willing to appeal, and that you are to pay the docket fees within the reglementary period. If a notice of appeal is filed in the court
that rendered the assailed judgment, the court of origin will elevate the entire records to the appellate court. A party's appeal by
notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. The court loses jurisdiction over
the case only upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. But
in practice, as long as the court has possession of the records, it can continue to act in the exercise of its residual jurisdiction.
82

A record on appeal is a compilation in a sequential manner of all pleadings and orders rendered by the court. This is required
in cases of special proceedings and in cases which require multiple appeals. This is to allow the appellate court to examine the
records without necessarily bringing up the original records. The records in the court of origin will not be elevated to the appellate
court, it is retained therein because there is something else yet to be done in the court of origin. You are to compile a copy of the
entire records in the court of origin which compilation (record) shall be elevated to the appellate court. A party's appeal by record
on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed
in due time. Without the approval of the court, the appeal will not be perfected. The court loses jurisdiction only over the subject
matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other
parties. The 30-day period to file a record on appeal cannot be extended. You cannot ask for an extension of time, unless the court
itself authorizes alteration.

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RTCs exercise of its appellate jurisdiction, the parties are required to submit a
memoranda to be filed within a period of fifteen (15) days. In the Court of Appeals,
what is required to be submitted is an appellants or an appellees brief to be filed
within a period of forty-five (45) days. The appellant's reply brief may be filed within
twenty (20) days from receipt of appellee's brief.83
o Petition for Review to the Court of Appeals (Rules 42 and 43): The appeal to the
Court of Appeals in cases decided by the RTC in the exercise of its appellate jurisdiction shall
be by petition for review under Rule 42; and cases decided by quasi-judicial agencies shall be
brought to the Court of Appeals also via petition for review, but under Rule 43.
1. Petitions for Review under Rules 42 and 43 are used to correct errors of judgment. You
have a reglementary period of fifteen (15) days to file an appeal, extendible to a period
of another fifteen (15) days for as long as you pay docket fees within the reglementary
period. You cannot ask for another extension of time, except for the most compelling
reason.
2. Can you directly file an appeal from the decisions of the Provincial
Agrarian Reform Adjudication Board (PARAB) to the Court of Appeals?
Yes, through a petition for review under Rule 43. Under the Rules of Court, Rule 43
shall apply to appeals from awards, judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions.
3. Can you directly file an appeal from the decisions of the National Labor
Relations Commissions (NLRC) to the Court of Appeals? Yes, but while the
supposed appeal goes directly through the Court of Appeals, it is not through a petition
for review under Rule 43, but through a special civil action under Rule 65. Under the
Labor Code, decisions of the NLRC is final and executory and for this reason, there is
no appeal nor plain and speedy remedy. That is why the remedy is through a petition
for certiorari under Rule 65 to the Court of Appeals in strict observance of the doctrine
on the hierarchy of courts as the appropriate forum for the relief desired.
4. What is your mode of appeal from a decision of the RTC as a commercial
court on intra-corporate disputes and corporate rehabilitation?84 Your
mode of appeal is through a petition for review under Rule 43. An appeal may now be
perfected by filing a petition for review within fifteen (15) days from notice of the
decision or final order of the trial court, directly to the Court of Appeals under Rule
43. There is no more need to file a notice of appeal and record on appeal.
5. Where do you go from a decision of the Court of Tax Appeals (CTA)? If it
is a decision of a CTA division, you have to elevate it to the CTA En Banc. Only when
the CTA En Banc resolves it can you elevate it to the Supreme Court on a petition for
review on certiorari under Rule 45.
6. Where do you go from a decision of the Housing and Land Use Arbiter?
The decision of the Housing and Land Use Arbiter will have to be elevated to the Board
of Commissioners of the HLURB, and from the decision of such board, it is then
elevated to the Office of the President.
7. Should the attachments in a petition for review under Rule 43 be certified
as authentic? Yes, everything that is attached to a petition for review to the Court of
83

Rule 44, Secs. 7, 8, and 9.

If you simply follow the Rules of Court, the proper remedy should have been an ordinary appeal because the RTC as a commercial
court is a court of original jurisdiction. However, in A.M. No. 04-9-07-SC, the court clarified that the proper mode of appeal in
cases involving intra-corporate disputes and corporate rehabilitation is through a petition for review under Rule 43. The decision
of the RTC as a commercial court is treated as if it originates from a quasi-judicial agency.
84

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Appeals originating from a quasi-judicial agency should all be certified as true copies
of the original. This is so because the quasi-judicial agencies are not part of the judicial
system, and for this reason, there is no way by which the court could validate that the
records that you are submitting are authentic. The only that the court could validate
its authenticity is if it is certified true copy considering that these are official records
of government agencies.
o Petition for Review on Certiorari to the Supreme Court (Rule 45)
1. An appeal by certiorari is used to correct errors of judgment. You have a reglementary
period of fifteen (15) days to file an appeal. However, the Supreme Court, on motion
duly filed and served, with full payment of the docket and other lawful fees before the
expiration of the reglementary period, may for justifiable reasons grant an extension
of thirty (30) days only within which to file the petition.
2. The only way to go up to the Supreme Court in civil and criminal cases is only by a
petition for review on certiorari under Rule 45. However, in criminal cases where the
penalty is reclusion perpetua, and life imprisonment, the mode of appeal is not under
Rule 45, but through a notice of appeal under Rule 122, Sec. 3 (a) to the Court of
Appeals. But no notice of appeal is necessary where the RTC imposed the death penalty
the review of the judgment shall be automatically done by the Court of Appeals.
3. A decision of the RTC, whether in the exercise of its original jurisdiction or appellate
jurisdiction, on a pure question of law can be directly elevated to the Supreme Court
on a petition for review on certiorari. What cannot happen is a decision of the MTC
being reviewed directly by the Supreme Court, even if it is a pure question of law.
4. A decision of the Court of Appeals on a pure question of law; a decision of the CTA En
Banc; a decision of the Sandiganbayan, may all be elevated to the Supreme Court
under this Rule.
5. The Supreme Court is not a trier of facts, however, the court may review matters of
fact if: (1) the finding of facts in the RTC is inconsistent with the finding of facts of the
CA; and (2) when it appears that the conclusion reached by the RTC or the CA is highly
impossible.
6. Can the Supreme Court treat a petition for certiorari under Rule 65 as
an appeal under Rule 42, Rule 43, or Rule 45? As a general rule, a petition for
certiorari cannot be treated as an appeal. However, under certain circumstances, the
Supreme Court can treat a petition for certiorari as an appeal if it was filed within
the reglementary period of fifteen (15) days; and if the allegations show that it
questions an error of judgment, and not an error of jurisdiction. In which case, even if
it was wrongly titled, the court may still consider it as an appeal.

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o Petition for Review on Certiorari (Rule 45) and Petition for Certiorari (Rule 65),
compared:
1. Under Rule 45, the appeal by certiorari is referred to as a Petition for Review on
Certiorari; while under Rule 65, the special civil action is referred to as a Petition
for Certiorari with the RTC, Court of Appeals, and the Supreme Court having
concurrent jurisdiction, subject to the hierarchy of courts.
2. Under Rule 45, the mode of appeal would correct errors of judgment; while the special
civil action under Rule 65 would correct errors of jurisdiction.
3. Under Rule 45, the petition for review on certiorari must be filed within fifteen (15)
days, extendible for a period of thirty (30) days for justifiable reasons; while under
Rule 65, the petition for certiorari must be filed, as a general rule, within a nonextendible period of sixty (60) days. Under exceptional cases, however, the 60-day
period may be extended subject to the courts sound discretion.
o What is the difference between a petition for certiorari under the
Constitution, and a petition for certiorari under Rule 65? Under the Sec. 1, Article
VIII of the Constitution, a petition for certiorari could be filed if there is grave abuse of
discretion amounting to lack or excess of jurisdiction committed by any agency or
instrumentality of the government; while under Rule 65, a petition for certiorari could
only be filed against any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted with grave abuse of discretion amounting to lack or excess of jurisdiction.

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Remedies Outside of the Reglementary Period


(Petition for Relief from Judgment and Annulment of Judgment)
o Petition for Relief from Judgment (Rule 38, Sec. 1)85
1. You can only avail of this remedy if the judgment is already final and executory, i.e.
there is already an entry of judgment. For this reason, you cannot file a motion for
reconsideration, a motion for new trial, or an appeal.
2. A petition for relief from judgment can be filed within a period of sixty (60) days from
knowledge of the judgment, and within six (6) months from entry of judgment. If you
learn of the judgment ten (10) days before the expiration of the six-month period, you
only have such remaining period to file the petition.
3. There are two (2) kinds of petition for relief, these are petition for relief from
judgment, order, or other proceedings, and petition for relief from denial of appeal.
Both petitions have the same ground, i.e. extrinsic fraud, accident, mistake, and
excusable negligence.
4. Only a party to the case can file for a petition for relief under this rule. However, in the
case of Alaban vs. CA (2005), the court held that in a proceeding in rem, the
corresponding publication of the petition brings in the whole world as a party in the
case and vests the court with jurisdiction to hear and decide it. As parties to the
probate proceedings, petitioners could have validly availed of the remedies of motion
for new trial or reconsideration and petition for relief from judgment. (Id.)
o Petition for Relief from Denial of Appeal (Rule 38, Sec. 2)86
1. This remedy presupposes that you were prevented from making an appeal because of
extrinsic fraud, accident, mistake, and excusable neglect.
2. If you were able to file an appeal but was filed out of time, and the court denied your
appeal, this remedy is not availing because you were not prevented from making an
appeal. In which case, your remedy is to file a motion for reconsideration, and if you
believe that the denial is tainted with grave abuse of discretion amounting to lack or
excess of jurisdiction, you can go up on a Rule 65.
o Petition for Annulment of Judgment (Rule 47)
1. This remedy is one of the very few instances that the Court of Appeals can issue
summons to require the other party to file an answer, because usually the Court of
Appeals in a petition will only issue a resolution requiring the party to file a comment.
2. This remedy is an original action filed in the Court of Appeals, or in the RTCs, as the
case may be. But unlike other original actions, an annulment of judgment does not
strictly require a cause of action because it is rooted on lack of jurisdiction or extrinsic
fraud. It does not refer to a particular violation of a right, but that the judgment is null
and void.

Rule 38, Sec. 1. Petition for relief from judgment, order, or other proceedings. When a judgment or final order is
entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside.

85

86
Rule 38, Sec. 2. Petition for relief from denial of appeal. When a judgment or final order is rendered by any court in a
case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he
may file a petition in such court and in the same case praying that the appeal be given due course.

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3. There are only two (2) grounds for an annulment of judgment, i.e. extrinsic fraud, and
lack of jurisdiction (over the subject matter, and over the person of the defendant).
The period for filing the petition, if based on extrinsic fraud, is within a period of four
(4) years from its discovery; and if based on lack of jurisdiction, at any time before it
is barred by laches or estoppel.
4. You cannot use this remedy if you were negligent, or you were at fault in not availing
of the proper remedies. In the case of Jongco vs. Veloso (2002), the court held that:
The remedy of annulment of judgment can therefore be resorted to only where
ordinary and other appropriate remedies, including appeal, are no longer available
through no fault of the petitioner.
5. Can you raise the doctrine of res judicata in an annulment of judgment?
No, you cannot. A void judgment for want of jurisdiction is no judgment at all. It
cannot be the source of any right nor the creator of any obligation. All acts performed
pursuant to it and all claims emanating from it have no legal effect. Hence, it can never
become final and any writ of execution based on it is void.
a. In the 1968 case of Cordovis vs. De Obias, the court held that: Technically, the
doctrine of res judicata may not be invoked in the present case for the reason
that the very purpose of the action in Civil Case No. T-115 is to annul the
judgment in Civil Case No. 3660.
6. Can you go to the Supreme Court on a petition for annulment of judgment
of the decision of the Court of Appeals? No, you cannot. Under Rule 56, the
Supreme Court cannot entertain an annulment of judgment it being not among the
original cases cognizable by the Supreme Court. Furthermore, the only mode of appeal
cognizable by the Supreme Court is a petition for review on certiorari under Rule 45.
a. In the case of Rufino vs. UP (2006), the court held that the Supreme Court has
no authority to take cognizance of an original action for annulment of
judgment of any lower court. The only original cases cognizable before this
Court are petitions for certiorari, prohibition, mandamus, quo warranto,
habeas corpus, disciplinary proceedings against members of the judiciary and
attorneys, and cases affecting ambassadors, other public ministers and consuls.
Petitions for annulment of judgment are not among the cases originally
cognizable by this Court.
b. A co-equal court cannot annul judgment of the same trial court. An annulment
of judgment can only be made by the next level court. If what is sought to be
annulled is the decision of the MTC, you file the petition with the RTC. If what
is sought to be annulled is the decision of the RTC, you file the petition with the
Court of Appeals.
7. Can the Court of Appeals, after annulling the judgment of the RTC,
determine the rights of the parties? No, it cannot. In accordance with Section 7,
Rule 47,87 a judgment of annulment shall set aside the questioned judgment or final
order or resolution and render the same null and void, without prejudice to the original
action being refiled in the proper court. The extent of the power of the appellate court
in an action for annulment of judgment is only to set aside and declare null and void
what was believed to be a judgment rendered without jurisdiction or with extrinsic
fraud. It cannot rule on the merits of the case.
Rule 47, Sec. 7. Effect of judgment. A judgment of annulment shall set aside the questioned judgment or final order or
resolution and render the same null and void, without prejudice to the original action being refiled in the proper court. However,
where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the
trial court to try the case as if a timely motion for new trial had been granted therein.
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8. Can you use Rule 47 to set aside a decision of an administrative agency?


No, you cannot use Rule 47 to set aside a decision of a quasi-judicial agency. Rule 47
is applicable only to decisions rendered by courts of law.
a. In the case of Cole vs. CA (2000), the court held that: Although the grounds
set forth in the petition for annulment of judgment are fraud and lack of
jurisdiction, said petition cannot prosper for the simple reason that the decision
sought to be annulled was not rendered by the Regional Trial Court but by an
administrative agency (HLU Arbiter and Office of the President), hence, not
within the jurisdiction of the Court of Appeals. There is no such remedy as
annulment of judgment of the HLURB or the Office of the President.
b. The court further held that: Assuming arguendo that the annulment petition
can be treated as a petition for review under Rule 43 of the 1997 Rules of Civil
Procedure, the same should have been dismissed by the Court of Appeals,
because no error of judgment was imputed to the HLURB and the Office of the
President. Fraud and lack of jurisdiction are beyond the province of petitions
under Rule 43 of the Rules of Court, as it covers only errors of judgment. A
petition for annulment of judgment is an initiatory remedy, hence no error of
judgment can be the subject thereof. (Id.)
9. Can you use Rule 47 to set aside a decision in a criminal case? No, you
cannot. The remedy of annulment of judgment cannot be availed of in criminal cases
there being no basis in law or in the rules. Under Sec. 1 of Rule 47, only civil actions
are subject to a petition for annulment of judgment. It is limited only to civil actions.

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RULE 39: Execution, Satisfaction and Effect of Judgments


Sections 1 to 14: General Provisions
o Execution, as a rule, will only take place if there is already a final judgment. Without a final
judgment, there will be no execution whether execution as a matter of right, or discretionary
execution it cannot take place. However, there are only at least two (2) instances where the
court can issue a writ of execution even in the absence of a final judgment:
1. In cases involving indigents, if the court is convinced that you are not indigent, and
you refuse to pay the required docket fees, then the court can issue a writ of execution
even if there is yet no final judgment.
2. In cases of support pendente lite under Rule 61, if the court orders that you give
support, but despite the order you refuse to comply, the court can issue a writ of
execution.
o Execution, matter of right: An execution as a matter of right presupposes a final and
executory judgment. Upon the expiry of the reglementary period to file for any remedy
without one being filed, i.e. no appeal, no motion for reconsideration, or if there is one, it has
already been resolved, the judgment becomes final and executory.
1. Where can you file the motion for execution? As a rule, you must file the motion
for execution in the court of origin, i.e. the court that rendered the original judgment.
a. As a rule only the court of origin can issue a writ of execution, but if the action
is an original action to the appellate court, the appellate court could issue a writ
of execution.
b. Can you file a motion for execution at the Court of Appeals? Yes.
Under Sec. 1 of Rule 39,88 the appellate court may, on motion in the same case,
when the interest of justice so requires, direct the court of origin to issue the
writ of execution. But as a general rule, the writ of execution shall be issued by
the court of origin.
2. When can you file the motion for execution? You can file the motion for
execution as soon as the decision or judgment attains finality.
a. The rule is that you can enforce a final and executory judgment upon motion,
i.e. motion for the issuance of a writ of execution, within a period of five (5)
years from the date of its entry.
b. But after five (5) years without the judgment being executed, and before the
expiration of ten (10) years from the date of its entry, a judgment may only be
enforced by action, i.e. a petition for revival of judgment.

Rule 39, Sec. 1. Execution upon judgments or final orders. Execution shall issue as a matter of right, on motion, upon
a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal
has been duly perfected.
88

If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on
motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders
sought to be enforced and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue
the writ of execution.

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3. Do you need to attach certified true copies of the judgment sought to be


enforced and of the entry thereof?
a. If it is an original action, there is no need to attach certified true copies of the
judgment sought to be enforced and the entry thereof in your motion.
b. If it is an appealed case, finally resolved, and became final and executory,
certified true copies of the judgment and the entry thereof need to be attached
to your motion for execution so that the court of origin would know what
decision you are referring to.
c. In practice, the court of origin must also wait for the remand of the records of
the case which it elevated to the appellate courts before it could act on the
motion for execution.
o Execution, matter of discretion (pending appeal):89 Execution pending appeal is
more of an exception rather than the general rule.
1. Can you still file a motion for execution pending appeal with the RTC if a
notice of appeal had already been filed, but the records of the case had not
yet been elevated? Yes, you can file the motion with the RTC because the records
still remain with the RTC, hence the RTC had not yet lost jurisdiction (residual
jurisdiction).
a. But if the records of the case had already been elevated, you can no longer file
the motion for execution with the RTC because it had already lost its
jurisdiction over the case. This time, you must file it with the Court of Appeals.
2. Requisites of execution pending appeal:
a. There must be a motion by the prevailing party with notice to the adverse party;
b. There must be good reasons90 for issuing the execution; and
c. The good reasons must be stated in a special order.
3. Is the ground for a motion for execution that the appeal filed by the losing
party is dilatory, a good reason for an execution pending appeal? No, the
reason does not justify execution pending appeal.
a. In the case of International School vs. CA (1999), the court held that: Where
the reason given is that an appeal is frivolous and dilatory, execution pending
appeal cannot be justified. It is not proper for the trial court to find that an
appeal is frivolous and consequently to disapprove it since the disallowance of
89

Rule 39, Sec 2. Discretionary execution.


(a) Execution of a judgment or final order pending appeal. On motion of the prevailing party with notice to the
adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record
or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion,
order execution of a judgment or final order even before the expiration of the period to appeal. After the trial court has
lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. Discretionary execution may
only issue upon good reasons to be stated in a special order after due hearing.
(b) Execution of several, separate or partial judgments. A several, separate or partial judgment may be executed
under the same terms and conditions as execution of a judgment or final order pending appeal.

In Ong v. Court of Appeals (1991), the Court underscored the importance of the requisite "good reasons" for allowance of
execution pending appeal. It ruled that: The reasons allowing execution [pending appeal] must constitute superior circumstances
demanding urgency which will outweigh the injury or damages should the losing party secure a reversal of the judgment. It is not
intended obviously that execution pending appeal shall issue as a matter of course. Good reasons, special, important, pressing
reasons must exist to justify it; otherwise, instead of an instrument of solicitude and justice, it may well become a tool of oppression
and inequity.
90

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an appeal by said court constitutes a deprivation of the right to appeal. The


authority to disapprove an appeal rightfully pertains to the appellate court.
4. Can the filing of a bond be considered a good reason to justify immediate
execution? No, it is not a good reason to justify immediate execution. A bond is not
a requirement for a motion for execution pending appeal. The bond is only needed in
a situation where the losing party wants to stay the execution.91
a. The mere filing of a bond by the successful party is not a good reason for
ordering execution pending appeal, as a combination of circumstances is the
dominant consideration which impels the grant of immediate execution, the
requirement of a bond is imposed merely as an additional factor, no doubt for
the protection of the defendants creditor. Since we have already ruled that the
reason that an appeal is dilatory does not justify execution pending appeal,
neither does the filing of a bond, without anything more, justify the same. (Id.)
b. In the case of Yasuda vs. CA (2000), the court held that: The prevailing
doctrine is that discretionary execution is permissible only when good reasons
exist for immediately executing the judgment before finality or pending appeal
or even before the expiration of the period to appeal. Good reasons consist of
compelling circumstances justifying the immediate execution lest judgment
becomes illusory, or the prevailing party after the lapse of time be unable to
enjoy it, considering the tactics of the adverse party who may apparently have
no case but to delay.
5. Are there judgments or decisions which are executory? Yes, there are
decisions or judgments which by their nature are executory, e.g. ejectment cases,
injunction, receivership, accounting and support.92 But you still need a motion for the
issuance of the writ of execution. The decision alone will not be sufficient. Under the
Rules of Court, even if executory, you still have to file a motion for execution.
a. Can an injunction be stayed by an appeal? No, an injunction cannot be
stayed by an appeal; otherwise it will render the executory nature of the
judgment as useless.
6. Are there judgments or decisions which are self-executory? Yes, there are
decisions or orders which are self-executory. An example of this is an order of
reinstatement in labor cases. The case of Pioneer Texturing Corp. v. NLRC (1997)
established the doctrine that an order or award for reinstatement is self-executory,
meaning that it does not require a writ of execution, much less a motion for its
issuance.
a. The NLRC Rules of Procedure require the employer to submit a report of
compliance within ten (10) calendar days from receipt of the Labor Arbiters
decision, disobedience to which clearly denotes a refusal to reinstate. The
employee need not file a motion for the issuance of the writ of execution since
Rule 39, Sec. 3. Stay of discretionary execution. Discretionary execution issued under the preceding section may be
stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed, conditioned
upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The
bond thus given may be proceeded against on motion with notice to the surety.

91

Rule 39, Sec. 4. Judgments not stayed by appeal. Judgments in actions for injunction, receivership, accounting and
support, and such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable
after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal
therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction,
receivership, accounting, or award of support.
92

The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection
of the rights of the adverse party.

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the Labor Arbiter shall thereafter motu proprio issue the writ. With the new
rules in place, there is hardly any difficulty in determining the employers
intransigence in immediately complying with the order. (Garcia vs. PAL,
2009)
b. Once the employer receives the order of reinstatement, it is incumbent upon
him to comply with the same within a period of ten (10) days from receipt.
Failure to comply with the order of reinstatement within the 10-day period will
lead to the issuance of a writ of execution.
7. Do you need a writ of execution for a judgment on a Rule 63 (declaratory
relief)? No, you do not need a writ of execution for a judgment under Rule 63, because
by its very nature, it need not be enforced it being merely a declaration of the validity
or interpretation of a deed, will, a written instrument, a law, a governmental
regulation, or an ordinance. You do not need a writ of execution, the decision will be
enough.
8. Can there be execution pending appeal in expropriation cases? No, as held
in Curata vs. PPA (2009), discretionary execution of judgments pending appeal under
Sec. 2 (a) of Rule 39 does not apply to eminent domain proceedings. Government
funds and properties cannot be seized under a writ of execution. Disbursements of
public funds must be covered by the corresponding appropriation as required by law.
The functions and public services rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds from their legitimate and
specific objects, as appropriated by law. (Commissioner of Public Highways v. San
Diego, 1970).
o Execution by motion or by independent action:93 The rule is that you can enforce a
final and executory judgment upon motion, i.e. motion for the issuance of a writ of execution,
within a period of five (5) years from the date of its entry. But after five (5) years without the
judgment being executed, and before the expiration of ten (10) years from the date of its entry,
a judgment may only be enforced by action, i.e. a petition for revival of judgment.
1. What is the life of the writ of execution? Under Sec. 14 of Rule 39, the life of the
writ is the period within which the judgment may be enforced by motion, i.e. five (5)
years from issuance. The 30-day period (intervals) mentioned in the same section
pertains to the period within which the sheriff will have to make a report, i.e. every
thirty (30) days on the proceedings taken thereon until the judgment is satisfied in
full, or its effectivity expires.
2. As regards revival of judgment, the law sets no limit you can revive the
judgment all you want. But although the law sets no limit, you have to understand that
you could only file a petition for revival of judgment within the proper prescriptive
period.
3. Is Sec. 6 of Rule 39, which states that judgment may be enforced within
five years by motion, and after five (5) years but within ten (10) years by
an action, applicable to special proceedings? No, it has no application to special
proceedings. Rule 39 finds application only to civil actions.
a. In a long line of cases, the Supreme Court had consistently held that Rule 39
applies only to ordinary civil actions, not to other or extraordinary proceedings
93
Rule 39, Sec. 6. Execution by motion or by independent action. A final and executory judgment or order may be
executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the
statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five
(5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations.

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not expressly governed by the Rules of Civil Procedure but by some other
specific law or legal modality such as land registration cases.
b. Section 6, Rule 39 of the Rules of Court is not applicable to an ex parte petition
for the issuance of the writ of possession as it is not in the nature of a civil action
governed by the Rules of Civil Procedure but a judicial proceeding governed
separately by Section 7 of Act No. 3135 which regulates the methods of effecting
an extrajudicial foreclosure of mortgage. (Sps. Topacio vs. Banco Filipino,
2010).
4. Where is the proper venue of the present action for revival of judgment?
The venue is dictated by the nature of the judgment. You do not consider the original
action, what you should look at is what the judgment to be revived says.
a. The proper venue depends on the determination of whether the present action
for revival of judgment is a real action or a personal action. If the action for
revival of judgment affects title to or possession of real property, or interest
therein, then it is a real action that must be filed with the court of the place
where the real property is located. If such action does not fall under the category
of real actions, it is then a personal action that may be filed with the court of the
place where the plaintiff or defendant resides. (Infante vs. Aran Builders, Inc.,
2007).
5. Can the court modify the original judgment that has been revived? No, the
court cannot modify the original judgment that has been revived. The purpose of an
action for revival of judgment is to merely give the creditor a new right of enforcement.
You do not need to re-litigate it, in fact you do not need a new cause of action.
6. A revived judgment should be final and executory. If the case is subject of a
motion for reconsideration, the case has not yet attained finality. In a case where the
records of the court had been burned, the remedy, there being no resolution on the
motion for reconsideration, should have been to re-constitute judicial records so that
the court can resolve the motion for reconsideration.
o Execution in case of death of party:94
1. If the judgment obligee dies, and judgment had become final and executory, forget
about substitution under Rule 3, Sec. 16 - apply Rule 39, Sec. 7 instead. The execution
may be enforced by the executor or administrator of the judgment obligees estate.
2. If the judgment obligor dies, and the case involves recovery of property, or
enforcement of a lien thereon, proceed against the executor or administrator of the
judgment obligors estate under Rule 87.95 If the case involves money claim, you do

Rule 39, Sec. 7. Execution in case of death of party. In case of the death of a party, execution may issue or be enforced
in the following manner:
(a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in
interest;
(b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the judgment
be for the recovery of real or personal property, or the enforcement of a lien thereon;
(c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may
be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding
executor or administrator for any surplus in his hands.
94

95
Rule 87, Sec. 1. Actions which may and which may not be brought against executor or administrator. No action
upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but
actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property, real or personal, may be commenced against him.

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not use Rule 87 - go to Rule 86,96 and lay your money claim. If there is already a levy,
there will be preference over the property subject of the levy.
o Execution of judgments for money, how enforced: The law provides for a number of
options in execution of a money judgment. These are (1) payment, (2) levy,97 and (3)
garnishment.
1. Payment is to be made to the judgment obligee. If the latter is not available, to his
authorized representative. In case both are not available, payment is to be made to the
sheriff who will bring the payment to the clerk of court that issued the writ who will in
turn deposit the same for the account of the judgment obligee.
2. Levy can only be done after giving an opportunity to the judgment obligor to pay the
judgment debt. The sheriff is required to first make a demand of the obligor the
immediate payment of the full amount stated in the writ of execution before a levy can
be made. (PAL vs. Balubar, 2004). The levied properties are now set aside for the
purpose of satisfying the command of the writ of execution.
a. If the judgment obligor cannot pay all or part of the obligation in cash, the
sheriff shall levy upon the properties of the judgment obligor giving the latter
the option to immediately choose which property or part thereof may be levied
upon, sufficient to satisfy the judgment. If the judgment obligor does not
exercise the option, the officer shall first levy on the personal properties, if any,
and then on the real properties if the personal properties are insufficient to
answer for the judgment.
b. The option to choose which property is to be levied is granted to a judgment
obligor before the sheriff levies its properties and not after. Hence, the
judgment obligor should communicate to the sheriff its choices before the
sheriff implements the levy. The judgment obligor's failure to seasonably
exercise such option, either by deliberate inaction or mere oversight, cannot be
countenanced by this Court. (Solar Resources, Inc. vs. Inland Trailways, Inc.,
2008).
3. Garnishment is a concept of execution. Under the law, it is a two-step process:
a. Notice of Garnishment: The court first issues a notice of garnishment. Once
the party in custody of the credits (due the judgment obligor), including bank
deposits, financial interests, royalties, commissions and other personal
property not capable of manual delivery in the possession or control of third
parties, receives said notice, it is now his duty to make a written report to the
court within five (5) days.

Rule 86, Sec. 5. Claims which must be filed under the notice. If not filed, barred; exceptions. All claims for money
against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for
funeral expenses and expenses for the last sickness of the decedent, and judgment for money against the decedent, must be filed
within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any
action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an
action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims
he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be
set off against each other in such action; and if final judgment is rendered in favor of the defendant, the amount so determined
shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the
administration proceedings. Claims not yet due, or contingent, may be approved at their present value.
96

Levy is different from an execution sale. Levy has been defined as the act or acts by which an officer sets apart or
appropriates a part or the whole of a judgment debtors property for the purpose of satisfying the command of the writ of execution.
On the other hand, an execution sale is a sale by a sheriff or other ministerial officer under the authority of a writ of execution
which he has levied on property of the debtor. (Caja vs. Nanquil, 2004)
97

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b. Order of Release: Once the custodian has submitted his report to the court,
the court will issue an order of release directing the custodian of the credits to
deliver to the court within ten (10) days the funds in his custody, which funds
shall thereafter be used to satisfy the judgment.
o Execution of judgments for specific act, how enforced: A judgment for specific act
requires the judgment obligor to do something or perform a specific act. If the judgment
obligor does not perform, the court can require someone else to do it. If there is no one else
to do it, the court can consider it as performed.
1. The specific acts extend to conveyance, delivery of deeds, sale of real or personal
property, delivery or restitution of real property, delivery of personal property,
removal of improvements on property subject of execution, or other specific acts.
However, for purposes of removal of improvements, you can only remove
improvements or you can only demolish if there is a special order of the court, i.e.
order of demolition.
2. Contempt cannot lie under this provision if the judgment obligor refuses to comply
because the judgment can be done not only by the judgment obligor, but also by
someone else.
o Execution of special judgments, how enforced: this is the only writ that requires
the judgment obligee to attach a certified copy of the judgment to the writ of execution
because it is only the judgment obligee who can perform the act. When a person commits
under a contract to perform, but refuses to perform in accordance with the contract, the court
can compel the performance through a special judgment.
1. If the person still refuses to perform despite the order, he may be punished for
contempt because it is only him who can perform the act. He cannot say that to compel
him despite his refusal is involuntary servitude because he voluntarily entered into the
contract and there is consideration.
o Property exempt from execution: Except as otherwise expressly provided by law, or
upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage
thereon, the following property, and no other, shall be exempt from execution:
1.
2.
3.
4.
5.
6.
7.
8.

Family home, but only up to the value provided under the Family Code;
Homestead in which he resides, and land necessarily used in connection therewith;
Ordinary tools and implements to the extent of PhP 300K;
The professional libraries and equipment of professionals, not exceeding PhP 300K;
One fishing boat and accessories not exceeding the total value of PhP 100K;
Furniture and utensils necessary for housekeeping of a value not exceeding PhP 100K;
Provisions for individual or family use sufficient for four (4) months;
Earnings of the judgment obligor for his personal services within the four (4) months
preceding the levy as are necessary for the support of his family;
9. Monies, benefits, privileges, or annuities accruing out of any life insurance;
10. The right to receive legal support, or any pension or gratuity from the Government;
11. His necessary clothing and articles for ordinary personal use, excluding jewelry;
12. Three horses, or three cows, or three carabaos, or other beasts of burden;
13. Lettered gravestones;
14. Properties specially exempted by law.

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o Is it enough that there is a claim that the property is exempt from execution, and
on the basis of such claim, the court will just exempt it from execution? No, a
mere claim that the property is exempt from execution is not enough. The court should make
an earnest determination of the truth of the claim before rendering judgment thereon.
1. In the case of Josef vs. Santos (2008), the court held that: The court should have
made an earnest determination of the truth to petitioners claim that the house and lot
in which he and his children resided was their duly constituted family home. Since it
did not, its July 16, 2003 Order is thus null and void. Being void, the Order could not
have conferred any right to respondent. Any writ of execution based on it is likewise
void.
2. The court further held that: A claim for exemption from execution of the family home
should be set up and proved before the sale of the property at public auction, and
failure to do so would estop the party from later claiming the exemption since the right
of exemption is a personal privilege granted to the judgment debtor which must be
claimed by the judgment debtor himself at the time of the levy or within a reasonable
period thereafter. (Id.)
o Can a juridical claim exemption from execution under Rule 39, Sec. 13? No, a
juridical person cannot claim exemption from execution under Rule 39. The exemption
pertains only to natural persons and not to juridical entities.
1. In the case of D Armoured Security vs. Orpia (2005), the court held that: Only
natural persons whose salaries, wages and earnings are indispensable for his own and
that of his familys support are exempted under Section 13 (i) of Rule 39 of the Rules
of Court. Undeniably, a corporate entity such as petitioner security agency is not
covered by the exemption.
2. If properties used in business are exempt from execution, there can hardly be an
instance when a judgment claim can be enforced against the business entity.
(Pentagon Security and Investigation Agency vs. Jimenez, 1990).

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Sections 15-34: Sale of Real and Personal Property


o After the property has been levied, the next step is to sell it. But you cannot immediately sell
the property. There are certain procedures, mandated by law that you need to follow before
the sale. The most important requirement before the sale is a notice of sale, i.e. notice to
the public, and notice to the judgment obligor.98 The notice shall specify the place, date and
exact time of the sale which should not be earlier than 9:00 a.m. and not later than 2:00 p.m.
The place of the sale may be agreed upon by the parties.99
1. In case of perishable property, by posting notice in three (3) public places where
the sale is to take place, for such time as may be reasonable, considering the character
and condition of the property;
2. In case of other personal property, by posting notice in the three (3) public places
above-mentioned for not less than five (5) days;
3. In case of real property, by posting for twenty (20) days in the three (3) public
places above-mentioned a similar notice particularly describing the property and
stating where the property is to be sold;
a. If the assessed value of the property exceeds PhP 50K, by publishing a copy of
the notice once a week for two (2) consecutive weeks in one newspaper selected
by raffle having general circulation in the province or city.
o Certificate of Sale This document conveys to the purchaser all the rights which the
judgment obligor had in such property as of the date of the levy on execution or preliminary
attachment. This is to evidence the purchase of the property recorded in the registry of
property, which registration triggers the running of the redemption period. When the
purchaser pays the purchase price, the sheriff must execute and deliver to him a certificate of
sale.
1. In case of personal property, capable of manual delivery, a certificate of sale
shall be issued only if desired;
2. In case of personal property not capable of manual delivery, a certificate of
sale is issued to the purchaser.
3. In case of real property, the sheriff must give to the purchaser a certificate of sale,
which must be registered in the registry of deeds of the place where the property is
situated, containing the following: (1) a particular description of the real property sold;
(2) the price paid for each distinct lot or parcel; (3) the whole price paid by him; (4) a
statement that the right of redemption expires one (1) year from the date of the
registration of the certificate of sale.
o Third-Party Claim100 (Rule 39, Sec. 16) - This is not a third-party complaint. This
provision on third-party claim, though with minor differences, is likewise present in the rules
on attachment under Rule 57, Sec. 14, and in the rules on replevin under Rule 60, Sec. 7.
Written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except in case of sale
of perishable property where notice shall be given at any time before the sale, in the same manner as personal service of pleadings
and other papers as provided by Section 6 of Rule 13.

98

In the absence of such agreement, the sale of real property or personal property not capable of manual delivery shall be held in
the office of the clerk of the court which issued the writ or which was designated by the appellate court. In the case of personal
property capable of manual delivery, the sale shall be held in the place where the property is located.
99

If the property is a conjugal or community property, the wife is not a stranger to the action. She need not file an affidavit of
third-party claim. She has the required personality to file any motion before the court where the case is pending although she is
not a party to the case.
100

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1. The interest of the judgment obligee is to satisfy the judgment. He deals with the
sheriff who in turn runs after the judgment obligors property.
2. If there is a third-party claimant who lays his claim to the levied property in an
affidavit of third-party claim and serves the same upon the sheriff and a copy thereof
upon the judgment obligee, the execution will be suspended.
3. For the sheriff to continue with his execution, the judgment obligee must post a bond101
approved by the court to indemnify the third-party claimant in a sum not less than the
value of the property levied on.
4. The judgment obligee who feels aggrieved by the third-party claim, which may be a
frivolous or plainly spurious claim, may vindicate his right by dragging the third-party
claimant in the same action or in a separate action.
5. The third-party claimant, on the other hand, may also vindicate his right but in a
separate action because he is not a part of the original case. The third-party claimant
is a stranger to the action, otherwise he could have been impleaded in the original case.
He can no longer intervene in the original case because the judgment is already final
and executory hence the execution.
o Third-Party Claim (Rule 57, Sec. 14) A third-party claim under this rule is not for
purposes of execution, but only for attachment. Unlike in Rule 39 where the property is levied
and then sold in execution, in Rule 57, the property is levied but is not subject to sale. It will
only be the subject of the writ of attachment or an annotation on the title of the property. The
owner of the levied property retains ownership and possession of the property.
1. The interest of the plaintiff is to attach the property of the adverse party as security for
the satisfaction of any judgment that may be recovered. He deals with the sheriff who
in turn runs after the adverse partys property.
2. If there is a third-party claimant who lays his claim to the levied property in an affidavit
and serves the same upon the sheriff and a copy thereof upon the plaintiff, the sheriff
shall not be bound to keep the property under attachment.
3. For the sheriff to continue with his attachment, the plaintiff must post a bond
approved by the court to indemnify the third-party claimant in a sum not less than the
value of the property levied upon.
4. The plaintiff who feels aggrieved by the third-party claim, which may be a frivolous or
plainly spurious claim, may vindicate his right by dragging the third-party claimant in
the same action or in a separate action.
5. The third-party claimant, unlike in Rule 39, may vindicate his right also in the same
action or in a separate action. He can intervene in the original action.
o Third-Party Claim (Rule 60, Sec. 7) - A third-party claim under this rule is not for
purposes of execution or attachment, but for recovery of possession of personal property. The
procedure in third-party claims under Rule 57, Sec. 14 is just the same as the procedure under
Rule 60, Sec. 7.
o Any individual could participate in the public sale of the levied property for as long as he pays
the amount. But usually, it is the judgment obligee who bids for and purchases the levied
property. When the purchaser is the judgment obligee, and no third-party claim has been
No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the filing of the bond.
101

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filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment.
If it does, he shall pay only the excess.
o What is the remedy of a purchaser of a property in an execution sale who was
not able to take possession of the property that he purchased? The purchaser can
recover the amount in the same action; or in a separate action; or the purchaser can have the
judgment revived under his name considering that the judgment award to the judgment
obligee has been satisfied by the purchasers payment. The purchaser can have the revived
judgment under his name and can execute against the obligor of the judgment obligee under
Rule 39, Sec. 34.
o Redemption of Property Personal property sold cannot be redeemed. Only real
property sold can be redeemed. Real property sold may be redeemed only by the following
persons (redemptioner): (1) the judgment obligor, or his successor in interest; and (2) a
creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold
subsequent to the lien under which the property was sold. But once the judgment obligor
redeems, there can be no further redemption.
1. Within what period can you redeem? You can redeem the property from the
purchaser at any time within one (1) year from the date of the registration of the
certificate of sale. If the property is not redeemed within such period, title to the
property shall now be consolidated to the purchaser of the property.
2. Who is entitled to possession, rents, earnings, and income accruing to the
property during the redemption period?
a. Under Rule 39,102 the judgment obligor is entitled to possession and income;
b. Under Rule 68,103 the mortgagor is entitled to possession and income;
c. Under Act No. 3135,104 the mortgagor is entitled to possession and income.
3. What is the redemption period and who is entitled to possession of the
property during the redemption period if the mortgagee is a bank?
a. If the mortgagor is a natural person, and his property is mortgaged in
favor of a bank, the redemption period, whether under judicial or extrajudicial
foreclosure, is a period of one (1) year. The purchaser or the bank, if the bank is
the bidder, is entitled to possession during the redemption period.
b. If the mortgagor is a juridical person whose property is mortgaged in
favor of banks, the redemption period (right of redemption) is only: (1) until,
but not after, the registration of the certificate of foreclosure sale; or (2) ninety
(90) days after foreclosure, whichever comes first.105

Rule 39, Sec. 31. Manner of using premises pending redemption; waste restrained. Until the expiration of the time
allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction,
on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession
of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue
to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to make the
necessary repairs to buildings thereon while he occupies the property.
102

Is there a redemption period in a judicial foreclosure sale? Yes. Under Rule 68, unless there is a law that gives a longer
period, the redemption period is what you call as equity of redemption, i.e. a period not less than 90 days nor more than 120
days.
103

Is there a redemption period in an extrajudicial foreclosure sale? Yes, you can redeem the property from the purchaser
at any time within one (1) year from the date of the registration of the certificate of sale.

104

RA No. 8791 (General Banking Law of 2000), Sec. 47: xxx Notwithstanding Act 3135, juridical persons whose property
is being sold pursuant to an extrajudicial foreclosure, shall have the right to redeem the property in accordance with this provision
until, but not after, the registration of the certificate of foreclosure sale with the applicable Register of Deeds which in no case shall

105

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Sections 3543: Remedies to Fully Satisfy the Judgment


o How can I fully satisfy the judgment? When the judgment remains unsatisfied, you can
avail of the following remedies. The court can issue subpoena to effect these remedies:
1. You are entitled to an order from the court requiring such judgment obligor to appear
and be examined concerning his property and income; and proceedings may be had
for the application of the property and income of the judgment obligor towards the
satisfaction of the judgment. But no judgment obligor shall be so required to appear
before a court or commissioner outside the province or city in which such obligor
resides or is found; or
2. You can call on the witness stand the debtors of the judgment obligor upon proof that
a person, or any juridical entity, has property of such judgment obligor or is indebted
to him. The service of the order shall bind all credits due the judgment obligor; or
a. After a writ of execution against property has been issued, a person indebted to
the judgment obligor may directly pay to the sheriff the amount of his debt or
so much thereof as may be necessary to satisfy the judgment. The sheriff's
receipt shall be a sufficient discharge for the amount so paid or directed to be
credited by the judgment obligee on the execution.
3. You can ask the court to order the judgment obligor to pay the judgment in fixed
monthly installments if, upon investigation of the judgment obligors current income
and expenses it appears that his earnings for his personal services are more than
necessary for the support of his family. Failure to pay any such installment when due
without good excuse, may punish him for contempt; or
4. You can request the court to appoint a receiver of the property of the judgment obligor
in order to preserve the property in order that it may be sold to satisfy the judgment.
This is the only instance that a provisional remedy, i.e. receivership, can be granted
even after the judgment has become final and executory; or
5. You can ask the court to order the receiver, if it appears that the judgment obligor has
an interest in real estate in the place in which proceedings are had, as mortgagor or
mortgagee or otherwise, and his interest therein can be ascertained without
controversy, to sell and convey any real estate or the interest of the judgment obligor
in said property to satisfy the judgment; or
6. You can ask the court to issue an order authorizing the sale of the property held by any
person or corporation who claims an interest in the property adverse to the judgment
obligor or denies its debt to the judgment obligor. The sale should be effected within a
period of 120 days from notice of the order. Disobedience by the judgment obligee
(winning party) of such order constitutes contempt punishable by law.
Secs. 44-45: Definition of Satisfaction of Judgment
o There is satisfaction of judgment if:
1. The writ of execution is returned to the court showing the satisfaction of the judgment;
2. The judgment obligee or his counsel files a written acknowledgment or an admission
to the satisfaction of the judgment executed and acknowledged in the same manner as
a conveyance of real property (satisfaction with admission);
be more than three (3) months after foreclosure, whichever is earlier. Owners of property that has been sold in a foreclosure sale
prior to the effectivity of this Act shall retain their redemption rights until their expiration.

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3. If there is a written endorsement of such admission by the judgment obligee or his


counsel on the face of the record of the judgment (satisfaction with admission).
4. In case the judgment obligee does not want to accept that the judgment has been fully
satisfied, but the court is convinced that it is fully satisfied, the court can order the
entry of satisfaction of the judgment in the court docket and in the execution book even
without the consent of the judgment obligee (satisfaction without admission).
o Section 46. When principal bound by judgment against surety. When a
judgment is rendered against a party who stands as surety for another, the latter is also bound
from the time that he has notice of the action or proceeding, and an opportunity at the surety's
request to join in the defense.
Sections 47-48: Effect of Judgment
o Res Judicata (bar by prior judgment): The judgment or decree of a court of
competent jurisdiction on the merits concludes the litigation between the parties and their
privies and constitutes a bar to a new action or suit involving the same cause of action either
before the same or any other tribunal. (Sps. Noceda vs. Directo, 2010).
o Conclusiveness of Judgment (preclusion of issue): This is likewise called
preclusion of issue, i.e. the issue passed upon by the court had already been precluded from
being tried again. When a right or fact has been judicially tried and determined by a court of
competent jurisdiction, or when an opportunity for such trial has been given, the judgment
of the court, as long as it remains unreversed, should be conclusive upon the parties and those
in privity with them. (Id.) Identity of cause of action is not required but merely identity of
issue.
o Is the judgment conclusive, or presumptive? A judgment or final order rendered by
the court having jurisdiction to pronounce the judgment or final order, may be as follows:
1. Conclusive: upon the title to the thing, the will or letters of administration, or the
condition, status or relationship of the person;
2. Presumptive: as to the death in the probate of a will or granting of letters of
administration because the will can be probated during the lifetime of the testator.
o Section 48. Effect of foreign judgments or final orders. The effect of a judgment
or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or
final order is as follows:
1. In case of a judgment or final order upon a specific thing, the judgment or final order
is conclusive upon the title to the thing; and
2. In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in interest
by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

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RULE 46: Original Cases in the Court of Appeals


o What are the original actions in the Court of Appeals? Some of the original actions
before the Court of Appeals are: annulment of Judgment under Rule 47; certiorari,
prohibition, and mandamus, under Rule 65; quo warranto under Rule 66; writ of habeas
corpus; writ of habeas corpus on custody of minors; writ of habeas data; writ of amparo;
and application for a Freeze Order under AMLA. This is not an exhaustive enumeration.
o Does the Court of Appeals issue summons in the original actions filed before it?
No, the court will not issue summons under Rule 46. What the court will issue is a resolution
requiring the respondent to file comment within a period of ten (10) days without filing a
motion to dismiss.
1. An exception to this is an action for annulment of judgment under Rule 47. An action
for annulment of judgment is only original action before the Court of Appeals that
allows the issuance of summons.
o How does the Court of Appeals acquire jurisdiction? The court shall acquire
jurisdiction over the person of the respondent by the service on him of its order or resolution
indicating its initial action on the petition; or by his voluntary submission to such
jurisdiction.
o Can the Court of Appeals conduct hearings? Yes, the court can conduct hearings
whenever necessary to resolve factual issues. The court itself may conduct hearings thereon
or delegate the reception of the evidence on such issues to any of its members or to an
appropriate court, agency or office.
o The necessary contents in a petition for certiorari under Rule 65 is incomplete.
You have to first refer to Rule 46, Sec. 3 in relation to Rule 65 whenever you file a petition for
certiorari, because if you file the petition based on the requirements of Rule 65 alone, your
petition will certainly be dismissed. The requirements are outlined under Rule 46, Sec. 3.
1. In the case of Air Philippines Corporation vs. Zamora (2006), the court held that:
Only those pleadings, parts of case records and documents which are material and
pertinent, in that they may provide the basis for a determination of a prima facie case
of abuse of discretion, are required to be attached to a petition for certiorari. A petition
lacking such documents contravenes paragraph 2, Section 1, Rule 65 and may be
dismissed outright under Section 3, Rule 46. However, if it is shown that the omission
has been rectified by the subsequent submission of the documents required, the
petition must be given due course or reinstated, if it had been previously dismissed.
2. The court further held that: Other pleadings and portions of case records need not
accompany the petition, unless the court will require them in order to aid it in its
review of the case. Omission of these documents from the petition will not warrant its
dismissal. (Id.)
o Only pleadings required by the court shall be allowed. All other pleadings and papers
may be filed only with leave of court.

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RULE 48: Preliminary Conference


o Preliminary conference under this rule is the equivalent of a pre-trial in the lower courts. If
the appellant fails to appear in the preliminary conference in the Court of Appeals, the appeal
will be dismissed under Rule 50, Sec. 1 (h).
o What is the function of a preliminary conference? At any time during the pendency
of a case, the court may call the parties and their counsel to a preliminary conference:
1. To consider the possibility of an amicable settlement, except when the case is not
allowed by law to be compromised;
2. To define, simplify and clarify the issues for determination;
3. To formulate stipulations of facts and admissions of documentary exhibits, limit the
number of witnesses, but only in cases falling within the original jurisdiction of the
court, or those within its appellate jurisdiction where a motion for new trial is granted
on the ground of newly discovered evidence; and
4. To take up such other matters which may aid the court in the prompt disposition of
the case.
o The proceedings at the preliminary conference shall be recorded and, upon the conclusion
thereof, a resolution shall be issued embodying all the actions taken therein, the stipulations
and admissions made, and the issues defined. The resolution shall control the subsequent
proceedings in the case unless, within five (5) days from notice thereof, any party shall
satisfactorily show valid cause why the same should not be followed.
RULE 49: Oral Argument
o An oral argument is limited only to original cases before the Court of Appeals and the
Supreme Court. The court, motu proprio, or upon motion of a party, may hear the parties in
oral argument on the merits of a case, or on any material incident in connection therewith.
The oral argument shall be limited to such matters as the court may specify in its order or
resolution
o Is a notice of hearing required whenever you file any kind of motion in the Court
of Appeals and in the Supreme Court? No, there is no need for a notice of hearing,
unless required or directed by the court. The adverse party may file objections to the motion
within five (5) days from service, upon the expiration of which such motion shall be deemed
submitted for resolution.

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RULE 50: Dismissal of Appeal


o This provision is like a sore thumb, a misplaced provision because Rules 46-55 covers original
actions in the Court of Appeals, while appeals in the Court of Appeals are found under Rules
41-43, and its procedure in Rule 44, and then suddenly Rule 50 on the grounds for dismissal
of appeal.
o This provision simply enumerates the grounds why your appeal will be dismissed in the Court
of Appeals, motu proprio, or on motion of the appellee. The following are the grounds:
1. Failure of the record on appeal to show on its face that the appeal was taken within the
reglementary period;
2. Failure to file the notice of appeal or the record on appeal within the reglementary
period;
3. Failure of the appellant to pay the docket and other lawful fees;
4. Unauthorized alterations, omissions or additions in the approved record on appeal;
5. Failure of the appellant to serve and file the required number of copies of his brief or
memorandum;
6. Absence of specific assignment of errors in the appellant's brief, or of page references
to the record;
7. Failure of the appellant to take the necessary steps for the correction or completion of
the record within the time limited by the court in its order;
8. Failure of the appellant to appear at the preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of the court without justifiable cause;
9. The fact that the order or judgment appealed from is not appealable;
10. An appeal under Rule 41 taken from the RTC to the CA raising only questions of law
shall be dismissed, issues purely of law not being reviewable by the CA;
11. An appeal by notice of appeal instead of by petition for review from the appellate
judgment of a RTC shall be dismissed.
o An appeal erroneously taken to the Court of Appeals shall not be transferred to the
appropriate court but shall be dismissed outright.
o An appeal may be withdrawn as of right at any time before the filing of the appellee's brief.
Thereafter, the withdrawal may be allowed in the discretion of the court.

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RULES 51 (Judgment) and 54 (Internal Business)


o The Court of Appeals is a collegial body who renders its decisions in divisions of three (3); not
five (5), not one (1), but only three (3) divisions. The decision to be validly issued should be a
unanimous decision, not a majority decision.
1. If one justice disagrees, i.e. there is dissent, the Presiding Justice (the equivalent of the
Chief Justice of the Supreme Court) will create a special division of five (5) who will
then revisit the case and render a decision, this time by majority decision.
o Can the Court of Appeals render a decision en banc? No, for purposes of rendering a
decision, it cannot sit en banc. Given the number of CA justices that we have in Manila, Cebu,
and in Cagayan De Oro, it would be difficult for them to all agree. But the Court of Appeals
can sit down en banc for administrative purposes.
o Are decisions of the Court of Appeals and the Supreme Court promulgated? Yes,
decisions of the Court of Appeals and the Supreme Court are promulgated.
1. After the ponencia is signed by all of the justices of the division that rendered the
decision, it is then delivered to the Division Clerk of Court who in turn prepares the
promulgation.
2. The Division Clerk of Court signs the promulgation and then delivers it to the Clerk of
Court of the Court of Appeals.
3. Upon the signature of the Clerk of Court of the Court of Appeals, the decision is now
ready for release. Although it is promulgated, the period to appeal or file a motion for
reconsideration will only start to run upon receipt, personally or by registered mail, by
the parties.
o Are decisions of the trial courts promulgated? No, decisions of the lower courts are
not promulgated but are served consistent with Rule 13, Sec. 9. But this rule only applies to
civil cases before the trial courts.
1. In criminal cases, judgments are promulgated, not served. The judge will issue a
notice of promulgation informing the accused and the bondsman of the date and the
time of the promulgation of the judgment. If the accused has jumped bail, the notice
of promulgation will be sent to his last known address.
2. On the scheduled date of promulgation, the judgment will be read to the accused. As a
general rule, the accused should be present on the promulgation of the judgment. An
exception to this rule is the promulgation of the judgment for light offenses. Accused
may be absent on the promulgation date for a light offense.
o Can the promulgation proceed despite the absence of the accused on the date of
the promulgation of judgment for a crime which is not a light offense? Yes, the
promulgation will still proceed despite the absence of the accused, but the accused forfeits his
remedies under the law, unless the accused reappears within the reglementary period and
explains to the court the reason for his absence.
o When is there an entry of judgment? The judgment or final resolution shall be entered
by the clerk in the book of entries of judgments after the lapse of the period to avail of your
remedies and no appeal or motion for new trial or reconsideration was filed within the
reglementary period.

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1. If there is an entry of judgment, it means that the judgment has become final and
executory. The entry of judgment shall, in the same way as a writ of execution, contain
only the dispositive portion of the judgment or final resolution.
2. In the Court of Appeals, you will not immediately receive the entry of judgment. Maybe
youll receive it a month or two (2) months later, but it does not mean that it has not
become final and executory on the day after the expiration of the period to appeal. The
physical delivery of the entry of judgment may take time, but once the reglementary
period lapses, the decision becomes final and executory.
o What if there is a discrepancy between the contents of the decision and the writ
of execution? The decision always prevails over the writ of execution. The sheriff or the
process server has no authority to expand nor add anything to the decision of the court.
RULES 52 (Motion for Reconsideration) and 53 (New Trial)
o What is the period to file a motion for reconsideration in the Court of Appeals?
The period to file a motion for reconsideration in the Court of Appeals and in the Supreme
Court is the same with the period in the lower courts, i.e. within fifteen (15) days from notice
of the decision.
1. The difference is the period within which the court has to resolve the motion for
reconsideration. In the trial courts, the period to resolve the motion for
reconsideration is thirty (30) days; in the Court of Appeals, the period to resolve the
motion for reconsideration is ninety (90) days.
o Can you file a motion for new trial in the Court of Appeals? Yes, you can file a motion
for new trial in the Court of Appeals, but only on the ground of newly-discovered evidence.
o What is the period to file a motion for new trial in the Court of Appeals? The
period to file a motion for new trial in the Court of Appeals is from the time an appeal from
the lower court has been perfected and as long as the Court of Appeals has jurisdiction over
the case.
1. The period to resolve the motion for new trial is ninety (90) days from the date the
court declares it submitted for resolution.
RULE 55: Publication of Judgments and Final Resolutions
o The published decisions and final resolutions of the Supreme Court shall be called "Philippine
Reports," while those of the Court of Appeals shall be known as the "Court of Appeals
Reports."
o The official publication of the Supreme Court is not through the Supreme Court Reports
Annotated (SCRA) a commercial publication of Central Bookstore, Inc.

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RULE 56: Procedure in the Supreme Court


Original Cases
o The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and
habeas corpus shall be in accordance with the applicable provisions of the Constitution, laws,
and Rules 46, 48, 49, 51, 52106 and this Rule. All references in said Rules to the Court of
Appeals shall be understood to also apply to the Supreme Court, but the rules dealing strictly
with and specifically intended for appealed cases in the Court of Appeals shall not be
applicable.
1. There is no annulment of judgment in the Supreme Court; only the Court of Appeals,
and the RTCs on decisions of the MTCs have Rule 47.
2. As a rule, there is no motion for new trial in the Supreme Court; only a motion for
reconsideration under Rule 52.
Appealed Cases
o An appeal to the Court of Appeals is through Rule 41, in conjunction with Rule 44; Rule 42,
and Rule 43.
o An appeal to the Supreme Court may be taken only by a petition for review on certiorari
under Rule 45, except in criminal cases where the penalty imposed is death, reclusion
perpetua or life imprisonment, in which case an appeal by notice of appeal is allowed.
1. The appeal shall be governed by and disposed of in accordance with the applicable
provisions of the Constitution, laws, Rules 45, 48, 51, 52, and 56.
2. There is no oral arguments under Rule 49 in the Supreme Court for appealed cases.
3. An appeal by certiorari taken to the Supreme Court from the RTC submitting issues
of fact may be referred to the Court of Appeals for decisions for appropriate action.
The determination of the Supreme Court on whether or not issues of fact are involved
shall be final.
o Procedure if opinion is equally divided. Where the court en banc is equally divided
in opinion, or the necessary majority cannot be had, the case shall again be deliberated on.
1. If after such deliberation no decision is reached, the original action commenced in the
court shall be dismissed; in appealed cases, the judgment or order appealed from shall
stand affirmed; and on all incidental matters, the petition or motion shall be denied.

106

Rule
Rule
Rule
Rule
Rule

46:
48:
49:
51:
52:

Original Cases in the Court of Appeals;


Preliminary Conference;
Oral Argument;
Judgment
Motion for Reconsideration.

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NOTES IN PROVISIONAL REMEDIES AND SPECIAL CIVIL ACTIONS


(Atty. T. Salvador III - Lecturer)
Provisional Remedies (Rules 57-61)1
o As a general rule, a provisional remedy is ancillary to the principal action - it cannot stand on
its own. However, under the law on Alternative Dispute Resolution (ADR), you can apply
for a certain provisional remedies as an original action in aid or in anticipation of future
arbitration.
1. Under Rule 57,2 an attachment is applied for to secure, not to satisfy, the judgment
because the applicant foresees that he will obtain a favorable judgment.
2. Under Rule 58,3 an injunction is applied for to stop, prohibit, or enjoin an act
(preliminary injunction), or to compel or require the performance of an act
(preliminary mandatory injunction).
3. Under Rule 59,4 a person is appointed to act as a receiver to preserve the property,
prevent it from being wasted and dissipated and to see to it that it is in good condition
until it is executed on.
4. Under Rule 60,5 a writ of replevin is applied for to recover personal property. This
is a special provision because it is directed only to a personal property.
5. Under Rule 61,6 support pendente lite is used in cases where there is a claim for
support. It is usually used in cases for declaration of nullity of marriage, annulment of
marriage, custody, and criminal cases for violation of VAWC.

1
Rule 127, Sec. 1. Availability of provisional remedies. The provisional remedies in civil actions, insofar as they are
applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. But the provisional
remedy of replevin cannot be availed of because there is no answer in criminal cases.
2

Grounds upon which attachment may issue:


1. In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, arising from
an obligation against a party who is about to depart from the Philippines with intent to defraud his creditors;
2. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer,
or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or
by any other person in a fiduciary capacity, or for a willful violation of duty;
3. In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the
property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the
applicant or an authorized person;
4. In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which
the action is brought, or in the performance thereof;
5. In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his
creditors;
6. In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served
by publication.

Requisites for a grant of a preliminary injunction:


1. There is a clear and unmistakable right, i.e. your basis for an application for preliminary injunction should stand on a clear
right, not wavering, not nebulous, but clear;
2. There is substantial damage or injury suffered; and
3. The injury should be irreparable, i.e. not quantifiable.

Grounds upon which a receiver may be appointed:


1. The property is in danger of being wasted or dissipated;
2. There is a stipulation in a mortgage agreement that a receiver may be appointed;
3. That the security on the mortgage is not sufficient to cover the obligation.

The grounds upon which a writ of replevin may issue (as found in the contents of the affidavit filed by the applicant):
1. That the applicant is the owner of the property claimed, or is entitled to the possession thereof;
2. That the applicant is unlawfully deprived of the possession of his property by the adverse party;
3. That the deprivation is not upon a levy, tax assessment or a fine pursuant to law, or seized under a writ of execution or
preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or
custody;
4. That the fair market value of the property must be stated.

The sole ground for this provisional remedy is support, i.e. assistance for basic necessity food, clothing, shelter, etc.,
but you have to establish relationship, i.e. filiation.

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RULE 57: Preliminary Attachment


o How to apply: An attachment is applied for to secure, not to satisfy, the judgment.
1. An attachment can be applied for any time before judgment in all courts of law,
including, in rare instances, the Court of Appeals and the Supreme Court.
2. In an application for attachment, a supporting affidavit7 and a bond are required.
There are two (2) ways to apply for an attachment: (1) ex parte application for a writ
of attachment as part of an initiatory pleading; or (2) motion for the issuance of a writ
of attachment during the pendency of the principal action.
3. Jurisdiction over the defendant should be acquired before or at the time of the
enforcement. No levy on attachment pursuant to the writ of attachment shall be
enforced unless it is preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the application for attachment, the
applicant's affidavit and bond, and the order and writ of attachment, on the defendant
within the PH.
o Is a general averment in the affidavit sufficient for the court to grant an
application for preliminary attachment? No, a general averment or allegation is not
enough to grant a preliminary attachment. Allegations must be done with particularity to
provide sufficient basis for the issuance of a writ of preliminary attachment.
o Grant of Preliminary Attachment, stages: For the first two (2) stages, it is not
necessary that jurisdiction over the person of the defendant be obtained, it is in the
implementation stage (third stage) that the court must have acquired jurisdiction over the
person of the defendant.
1. The court grants your ex parte application for preliminary attachment;
2. The writ of attachment issues pursuant to the order granting the writ; and
3. The writ is implemented together with the summons and the complaint.
o How do you attach property? Attachment depends on the nature of the property to be
attached:
1. If it is a real property, by filing with the registry of deeds a copy of the order,
together with a description of the property attached, and a notice that it is attached,
and by leaving a copy of such order, description, and notice with the occupant of the
property.
2. If it is a personal property capable of manual delivery, by taking and safely
keeping it in his custody, after issuing the corresponding receipt therefor;
3. If the property are stocks or shares of any corporation or company, by
leaving with the president or managing agent thereof, a copy of the writ, and a notice
stating that the stock or interest of the party against whom the attachment is issued is
attached in pursuance of such writ;
4. If the property are debts and credits, including bank deposits, financial interest,
royalties, commissions and other personal property not capable of manual
delivery, by leaving with the person owing such debts, or having in his possession or

The affidavit will state that there is a ground for the preliminary attachment, that there is a cause of action, and that there is no
sufficient security, and that the amount appearing on the order is as much as the sum for which the order is granted above all
legal counterclaims.
7

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under his control, such credits or other personal property, or with his agent, a copy of
the writ, and notice that the debts owing by him to the party against whom attachment
is issued, and the credits and other personal property in his possession, or under his
control, belonging to said party, are attached in pursuance of such writ;
5. If it is an interest in property belonging to the estate of the decedent,
whether as heir, legatee, or devisee, by serving the executor or administrator or other
personal representative of the decedent with a copy of the writ and notice that said
interest is attached. A copy of said writ of attachment and of said notice shall also be
filed in the office of the clerk of the court in which said estate is being settled and
served upon the heir, legatee or devisee concerned.
6. If the property sought to be attached is in custodia legis, a copy of the writ of
attachment shall be filed with the proper court or quasi-judicial agency, and notice of
the attachment served upon the custodian of such property.
o Execution on Attached Properties: If there is a favorable judgment, the attached
properties will first be applied to satisfy the judgment. Money attached will have to go first.
Real and personal properties attached will be subject to public sale in accordance with Rule
39.
1. After the public sale, and the proceeds have been generated for payment or satisfaction
of judgment, whatever is left of the proceeds, or if there is an excess, the excess shall
be returned to the losing party. But this hardly happens. Usually, the proceeds are less
than the judgment award.
2. If the attached properties have all been applied, and yet the judgment has not been
fully satisfied, you will now proceed to ordinary execution, i.e. execution of money
judgment, execution of specific acts, or execution of special judgment under Rule 39.
o How to dissolve the writ of attachment:
1. By posting a counter-bond after the writ of attachment has been enforced. You cannot
post it in anticipation of a preliminary attachment; or
2. By motion on the ground that the attachment was improper or irregularly issued or
enforced, or excessive,8 or that the bond is insufficient.
o Does the mere posting of a counterbond automatically discharge the writ of
attachment? No, the mere posting of a counterbond is not enough. It is only after hearing
and after the judge has ordered the discharge of the attachment if a cash deposit is made or a
counterbond is executed that the writ is properly discharged.
1. The attachment bond is posted to cover the damages that may be suffered by the
person against whom the writ of attachment is issued. The counter-attachment bond
is posted to cover the damages that may be suffered by the applicant by reason of
this counterbond, the writ of attachment may be discharged.
2. The amount of the counter-attachment bond is to be measured against the value of the
attached property as determined by the judge to secure the payment of any judgment
that the attaching creditor may recover in the action.

When you say improper, there is no ground or cause for the issuance of a preliminary attachment. When you say irregular,
the process or the procedure was not followed, e.g. attachment was issued without a supporting bond, affidavit, or summons.
When you say excessive, the attached property is worth more than the necessary amount to satisfy the judgment in case it is
favorable to the plaintiff.
8

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o Does the posting of a counterbond amount to a waiver of the claim for damages
arising from the wrongful attachment? No, the mere posting of a counterbond does not
discharge a claim for damages. It does not amount to waiver.
o Claim for damages: An application for damages on account of improper, irregular or
excessive attachment must be filed during the pendency of the case.
1. The only exception where you can apply for damages even after the termination of the
case is when the court grants the motion to dismiss and you had no opportunity to
present evidence.
2. You can also claim damages sustained during the pendency of the appeal by filing an
application in the appellate court before the judgment of the appellate court becomes
executory. The appellate court may allow the application to be heard and decided by
the trial court.
3. To be able to award moral and exemplary damages, there should be malice and bad
faith. However, the mere existence of malice and bad faith would not per se warrant
the award of actual or compensatory damages. To grant such damages, sufficient
proof thereon is required.

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RULE 58: Preliminary Injunction9


o How to apply: An injunction is applied for to stop, prohibit, or enjoin an act (preliminary
injunction), or to compel or require the performance of an act (preliminary mandatory
injunction).
1. The sole object of a preliminary injunction, whether prohibitory or mandatory, is to
preserve the status quo until the merits of the case can be heard. The status quo is the
last actual peaceable uncontested status which preceded the controversy. It may only
be resorted to by a litigant for the preservation or protection of his rights or interests
and for no other purpose during the pendency of the principal action. It should only
be granted if the party asking for it is clearly entitled thereto. (UCPB vs. United Alloy,
2005).
2. An application for injunction requires a supporting affidavit and a bond and can be
filed at any time before entry of judgment in all courts of law, including the Court of
Appeals and the Supreme Court, whether in an original action or in appealed cases.
o Can there be a grant of TRO or PI on the mere ground of probability of violation
of a right? Yes, the court can grant an application for a TRO or PI on the ground of
probability of a violation of a right.
1. In the case of Hernandez vs. NAPOCOR (2006), the court held that: For a writ of
preliminary injunction to be issued, the Rules do not require that the act complained
of be in violation of the rights of the applicant. Indeed, what the Rules require is that
the act complained of be probably in violation of the rights of the applicant. Under the
Rules of Court, probability is enough basis for injunction to issue as a provisional
remedy, which is different from injunction as a main action where one needs to
establish absolute certainty as basis for a final and permanent injunction.
o Injunction as a Provisional Remedy and Injunction as a Principal Action,
quantum of proof:
1. In PI, the quantum of evidence is ostensible right to the final relief prayed for a
prima facie evidence would suffice;
2. In injunction as a main case, the quantum of evidence must be conclusive and
complete, and needs to establish absolute certainty.
o What is a status quo order? A status quo order is a creation of jurisprudence. The effect
of this order is as if you have a preliminary injunction. As a general rule, a status quo order
does not require an affidavit and/or a bond. But in cases involving judicial and extrajudicial
foreclosure, any status quo order issued by the court should be supported by an affidavit and
a bond.
1. Under OCA Circular No. 25-2007 on procedure in extrajudicial or judicial foreclosure
of real estate mortgages, All requirements and restrictions prescribed for the
issuance of a TRO/writ of preliminary injunction, such as the posting of a bond, which
shall be equal to the amount of the outstanding debt, and the time limitation for its
effectivity, shall apply as well to a status quo order.

A grant of preliminary injunction if issued by the lower court can only be effective within the judicial district.

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o OCA Circular No. 25-2007 further provides the following:


1. No TRO or writ of preliminary injunction against the extrajudicial foreclosure of real
estate mortgage shall be issued on the allegation that the loan secured by the mortgage
has been paid or is not delinquent unless the application is verified and supported by
evidence of payment.
2. No TRO or writ of preliminary injunction against the extrajudicial foreclosure of real
estate mortgage shall be issued on the allegation that the interest on the loan is
unconscionable, unless the debtor pays the mortgagee the legal interest on the
principal obligation as stated in the application for foreclosure sale, which shall be
updated monthly while the case is pending.
o What is a temporary restraining order (TRO)?
1. A temporary restraining order (TRO) is an order that prohibits the performance of
an act but only for a limited period. It is only effective, from the moment it is served to
the adverse party, for the following periods:
a. A non-extendible period of twenty (20) days if issued by the trial courts; and
b. A non-extendible period of sixty (60) days if issued by the Court of Appeals.
c. Effective until further notice if issued by the Supreme Court.
2. Sec. 5, Rule 58 of the Rules of Court proscribes the grant of preliminary injunction
without hearing and prior notice to the party or person sought to be enjoined.
However, the rule authorizes the court to which an application for preliminary
injunction is made to issue a TRO if it should appear from the facts shown by affidavits
or by the verified petition that great or irreparable injury would result to the applicant
before the matter can be heard on notice, but only for a limited 72-hour period.
(Llamzon vs. Logronio, 2007).
a. Such TRO shall be issued only by the executive judge or single-sala station judge
and shall be served to the adverse party, together with the summons, complaint,
and a notice of raffle, to enforce the same. This is the only provisional remedy
where there is a notice of raffle.
b. Once the 72-hour TRO, summons, complaint, and the notice of raffle have been
served, there will be a raffle on the scheduled date appearing on the notice of
raffle.
c. Before the lapse of the 72 hours, the Presiding Judge to whom the case was
raffled shall then conduct a summary hearing to determine whether the TRO
can be extended for another period until the application for preliminary
injunction can be heard, which period shall in no case exceed 20 days including
the original 72 hours.
3. The rule thus holds that before a TRO may be issued, all parties must be heard in a
summary hearing first, after the records are transmitted to the branch selected by
raffle. The only instance when a TRO may be issued ex parte is when the matter is of
such extreme urgency that grave injustice and irreparable injury will arise unless it
is issued immediately, (Id.) i.e. either an ex parte 72-hour TRO or an ex parte TRO
for a straight period of twenty (20) days.
o Can a regular-court judge issue a 72-hour TRO? No, a regular-court judge to whom
the case was lodged after raffle cannot issue a 72-hour TRO. The 72-hour TRO is issued before
the raffle of cases.

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o Can the court issue an ex parte preliminary injunction? No, while a TRO can be
issued ex parte, a preliminary injunction cannot be issued ex parte. It should always be with
notice and hearing.
o Can you extend the period of a TRO? Under the Rules of Court, you cannot extend the
period of a TRO. But under the Special Rules of Court on ADR,10 you are entitled to a singular
extension of another twenty (20) days if the other party would ask for an extension of the
period to file his opposition or comment on why the interim measure of protection should
not be granted or to reset the hearing to a later date, and such request is granted.
o Is a grant of an injunctive relief a judgment on the merits? No, it is not a judgment
on the merits. It is interlocutory. The evidence submitted during the hearing for the
application for injunction is not conclusive or complete for only it is a sampling needed by
the trial court to have an idea of the justification for a preliminary injunction.
o What happens after a Complaint with Application for a TRO or PI is filed?
1. Once a case is filed, the case shall be delivered to the Executive Judge for purposes of
raffle. If your case does not involve an ex parte application for a TRO, the Executive
Judge will issue summons, together with the complaint, and a notice of raffle to be
served to the adverse party.
2. Once the case is raffled to a court, the presiding judge therein will conduct a summary
hearing to determine whether it could grant the 20-day TRO. This would require a
sampling of evidence, i.e. evidence sufficient to support the application for TRO.
3. If the 20-day TRO is granted, the court shall then conduct summary hearings within
the 20-day period to determine whether it could grant the application for preliminary
injunction. This would require also require a sampling of evidence, i.e. evidence
sufficient to support the application for preliminary injunction.
o How to dissolve the writ of injunction:11
1. By motion with supporting affidavits showing that there is no ground for the
preliminary injunction;
2. By motion on the ground that the damage that the person (against whom the
preliminary injunction was issued) will suffer will be far greater than the applicant and
by posting a counterbond in an amount to be determined by the court.
o Claim for damages: An application for damages on account of improper, irregular
injunction must be filed during the pendency of the case.
1. The only exception where you can apply for damages even after the termination of the
case is when the court grants the motion to dismiss and you had no opportunity to
present evidence.
2. You can also claim damages sustained during the pendency of the appeal by filing an
application in the appellate court before the judgment of the appellate court becomes
executory. The appellate court may allow the application to be heard and decided by
the trial court.

10
11

Rule 5.9, Special Rules of Court on Alternative Dispute Resolution.


Insufficiency is a ground to deny the application for a writ of preliminary injunction, but not a ground to dissolve.

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o Instances where TRO or preliminary injunction is improper:


1.
2.
3.
4.
5.

Improper if issued against the Presidential Agrarian Reform Council;


Improper if issued to restrain collection of any national internal revenue taxes;
Improper if issued to release imported articles impounded by the Bureau of Customs;
Improper if issued to restrain criminal prosecution this is the general rule;12
Improper if issued to restrain government infrastructure projects.
RULE 59: Receivership

o How to apply: Under this Rule, a person is appointed to act as a receiver to preserve the
property, prevent it from being wasted and dissipated and to see to it that it is in good
condition until it is executed on.
1. If the application is a part of an initiatory pleading, the application must be in a
verified petition with a supporting affidavit and a bond, to be filed at any time, even
after judgment has become final and executory,13 in all courts of law, including the
Court of Appeals and the Supreme Court.
2. If the principal action is pending, file a motion with a supporting affidavit and bond
for the appointment of a receiver.
3. There are two (2) bonds under this rule, i.e. bond of the receiver, and bond of the
applicant.
o What is the duty of a receiver? The duty of the receiver is to manage the properties and
its affairs, it is limited only to the power of administration. The receiver cannot perform acts
of ownership without the consent or approval of the court.
o How to dissolve the order appointing a receiver:
1. By the court motu proprio or on motion of either party on the ground that the necessity
for a receiver no longer exists;
2. By a counter-bond; and
3. By the receivers cessation from office.
o Claim for damages: An application for damages on account of improper, irregular
appointment of a receiver must be filed during the pendency of the case.
1. The only exception where you can apply for damages even after the termination of the
case is when the court grants the motion to dismiss and you had no opportunity to
present evidence.
2. You can also claim damages sustained during the pendency of the appeal by filing an
application in the appellate court before the judgment of the appellate court becomes
executory. The appellate court may allow the application to be heard and decided by
the trial court.
12

Exceptions to the prohibition of issuance of a TRO or PI to restrain criminal prosecution:


1. To afford adequate protection to the constitutional rights of the accused;
2. When necessary for the orderly administration of justice and to avoid multiplicity of actions;
3. When there is double jeopardy;
4. Where the charges are manifestly false and motivated by lust for vengeance;
5. Where there is clearly no prima facie case against the accused and a motion to quash has been denied.

Rule 39, Sec. 41. Appointment of receiver. The court may appoint a receiver of the property of the judgment obligor;
and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt
from execution.

13

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RULE 60: Replevin


o How to apply: A writ of replevin is applied for to recover personal property. This is a special
provision because it is directed only to a personal property.
1. An application with supporting affidavit and a bond for the issuance of a writ of
replevin can be filed only in the MTCs and RTCs and only before an answer is filed. It
is usually filed or incorporated in the initiatory pleading.
o How to dissolve the writ of replevin:
1. By simply posting a counter-bond which is double-the-value of the property without
questioning the sufficiency of the applicants bond to be entitled to immediate
recovery of the personal property.
2. By questioning the sufficiency of the bond of the applicant, but there will be no
immediate recovery of the personal property but recovery may be had after some
time.
o Claim for damages: An application for damages on account of improper, irregular issuance
of the writ of replevin must be filed during the pendency of the case.
1. The only exception where you can apply for damages even after the termination of the
case is when the court grants the motion to dismiss and you had no opportunity to
present evidence.
2. You can also claim damages sustained during the pendency of the appeal by filing an
application in the appellate court before the judgment of the appellate court becomes
executory. The appellate court may allow the application to be heard and decided by
the trial court.

jjsummer&rain#foursisons2015-0105

RULE 61: Support Pendente Lite


o How to apply: Support pendente lite is used in cases where there is a claim for support. It
is used in cases for declaration of nullity of marriage, annulment of marriage, custody, and
criminal cases for violation of VAWC.
1. An application for support pendente lite can only be filed during the pendency of the
principal action in the RTCs (Family Courts), Court of Appeals, and in the Supreme
Court. The principal action in an application for support pendente lite usually involves
cases cognizable by the RTCs (Family Courts) cases which the MTCs cannot
entertain.
2. You can apply for it as part of an initiatory pleading with supporting affidavit, or if the
principal action is pending, you can apply for it on motion with supporting affidavit.
Only an affidavit is required. This is the only provisional remedy that does not require
a bond.
o How to dissolve:
1. The recipient has already reached the age of majority and can now fend for himself;
2. The recipient of the support dies;
3. The recipient has no relationship with the provider of support.
o Claim for reimbursement: There can be no claim for damages under Rule 61 there being
no bond to charge it off. What we have here is reimbursement for all the expenses suffered
by the person ordered by the court to furnish support despite the absence of an obligation to
give support.
1. If the action is still pending, you can have your reimbursement from the person who
received support; or in his default, from the person who should have been giving
support to the other person, in the same action.
2. If there is already a judgment, you can only recover the amount in a separate action.

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SPECIAL CIVIL ACTIONS (Rules 62-71)14


RULE 62: Interpleader
o What is an interpleader? An interpleader is an action instituted by an applicant against
the conflicting claimants to compel them to interplead and litigate their several claims among
themselves.
1. Interpleader requires no breach or violation of a right because the party who institutes
the action has no interest over the subject of the controversy, or if he has an interest,
his interest is not inconsistent with, contested or disputed by the claimants. Otherwise,
if the applicants interest is disputed, you go to ordinary civil actions.
o Why does one institute an action for interpleader, and who pays the filing fee?
One files an action for interpleader because he does not want to be vexed by the conflicting
claims of the claimants to the property. The applicant pays the filing fee which shall be a lien
on the judgment award.
o What happens after an action for interpleader is filed in court? Upon the filing of
the complaint, and before an answer is filed, the court shall issue an order requiring the
conflicting claimants to interplead with one another. Thereafter, the court shall issue
summons together with a copy of the complaint directed to the parties and then the parties
will now have to file their answer.
o Can you file a motion to dismiss in an action for interpleader? Yes, you can file a
motion to dismiss in an action for interpleader on the ground of impropriety of the action for
interpleader or on appropriate grounds under Rule 16. This is where the ordinary rules of
civil procedure have suppletory application because the grounds for a motion to dismiss were
not enumerated in Rule 62.
o Can an action for interpleader be barred by a pending action involving the same
subject matter?15 No. All of the requisites of litis pendentia must be present. Absent one
requisite, there is no litis pendentia.
1. In the case of Lui Enterprises vs. Zuellig Pharma (2014), the court held that: there is
no litis pendentia since there is no identity of parties in the nullification of deed of
dation in payment case and the interpleader case. Zuellig Pharma is not a party to the
nullification case filed in the Davao trial court. There is also no identity of rights
asserted and reliefs prayed for. Lui Enterprises filed the first case to nullify the deed
of dation in payment it executed in favor of the PBCOM. Zuellig Pharma subsequently
filed the interpleader case to consign in court the rental payments and extinguish its
obligation as lessee. The interpleader case was necessary and was not instituted to
harass either Lui Enterprises or the PBCOM. Thus, the pending nullification case did
not bar the filing of the interpleader case.
Ordinary Civil Action and Special Civil Action, distinctions: An ordinary civil action, as a rule, requires a cause of action;
while a special civil action, also as a rule, does not require a cause of action, except judicial foreclosure under Rule 68, and
ejectment under Rule 70. Ordinary civil actions are governed by ordinary rules of procedure; while a special civil action is covered
by special rules - only when the special rules are inadequate will you go to ordinary procedure.
14

Litis pendentia is Latin for a pending suit. It exists when another action is pending between the same parties for the same
cause of action. The subsequent action is unnecessary and vexatious and is instituted to harass the respondent (in the
subsequent action).
15

The requisites of litis pendentia are:


a. Identity of parties or at least such as represent the same interest in both actions;
b. Identity of rights asserted and reliefs prayed for, the reliefs being founded on the same facts; and
c. The identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which
party is successful, amount to res judicata in the other.

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RULE 63: Declaratory Relief and Similar Remedies16


o You only come to court, under the first paragraph of Sec. 117 which is declaratory relief, to
ask the court to determine the validity or to interpret the will, the deed, contract, or other
written instrument, law, executive order, ordinance, or any other governmental regulation
constitutionality is not included.
o If the governmental act is quasi-legislative in nature, like passing of a rule or a regulation, an
action for declaratory relief is proper, not a petition for certiorari under Rule 65 in which
case the court of original jurisdiction is the RTC.
o The second paragraph of Sec. 1 is not declaratory relief, but other similar remedies. These
three remedies are considered similar to declaratory relief because they also result in the
adjudication of the legal rights of the litigants, often without the need of execution to carry
the judgment into effect.
1. Quieting of title18 or removal of cloud therefrom under Arts. 478 to 481 of the NCC;
2. Action to consolidate ownership under Art. 1607 of the NCC in a pacto de retro sale;
and
3. An action for the reformation of an instrument, recognized under Arts. 1359 to 1369
of the NCC.
o Jurisdiction over Quieting of Title or Removal of Cloud therefrom: Under the
case of Malana vs. Tappa (2009), jurisdiction over quieting of title is determined by the
assessed value of the property, i.e. actions involving title to, possession of, or interest therein.
However, in the case of Sabitsana vs. Muertegui (2013), jurisdiction over quieting of title
or removal of cloud therefrom is lodged with the RTC regardless of the assessed value of the
real property in dispute.
o Jurisdiction over Consolidation of Ownership and Reformation of an
Instrument: Jurisdiction over an action for consolidation of ownership by reason of a
pacto de retro sale, and an action for reformation of an instrument, being incapable of
pecuniary estimation, is lodged with the RTC.
o Can you file an action for declaratory relief in the Supreme Court? No, you cannot
file an action for declaratory relief in the Supreme Court because the Supreme Court has no
original jurisdiction for declaratory relief.
o What happens to the pending action for declaratory relief if there happens to be
a breach or violation of an instrument, or a law, executive order or regulation,

16

Requisites for an action for declaratory relief:


1. The subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order
or regulation, or ordinance;
2. The terms of said documents and the validity thereof are doubtful and require judicial construction;
3. There must have been no breach of the documents in question;
4. There must be an actual justiciable controversy or the "ripening seeds" of one between persons whose interests are
adverse;
5. The issue must be ripe for judicial determination; and
6. There is no adequate relief available through other means or other forms of action or proceeding.

Rule 63, Sec. 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, or
whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before
breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or
validity arising, and for a declaration of his rights or duties, thereunder.
17

An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil Code, may be brought under this Rule.
18

In an action for quieting of title, there is an apparent or ostensible title, but in truth and in fact, it is not.

jjsummer&rain#foursisons2015-0108

ordinance, or any other governmental regulation? The pending case will not be
dismissed, but instead converted into an ordinary action.
o A declaratory judgment may issue only if there has been no breach of the
documents in question. If the contract or statute subject matter of the action has already
been breached, the appropriate ordinary civil action must be filed. If adequate relief is
available through another form of action or proceeding, the other action must be preferred
over an action for declaratory relief.
1. A petition for declaratory relief is not the proper remedy once a notice of assessment
was already issued. The law on tax-exemption sought to be judicially interpreted in
this case had already been breached there being a notice of tax assessment. The RTC
of Pasay, therefore, had no jurisdiction over the PEZAs petition for declaratory relief
against the City. (City of Lapu-Lapu vs. PEZA, 2014).
o Can the court decide not to resolve an action for declaratory relief? Yes, the court
can leave the action undecided in cases where a decision will not terminate the controversy.
In an action for declaratory relief, the court is in no way compelled to resolve the case. It is
left to the sound judgment of the court.
1. Sec. 5 of Rule 63 states that: the court, motu proprio or upon motion, may refuse to
exercise the power to declare rights and to construe instruments in any case where a
decision would not terminate the uncertainty or controversy which gave rise to the
action, or in any case where the declaration or construction is not necessary and
proper under the circumstances.
o Can the court decide not to resolve an action involving other similar
remedies? No, the court cannot leave the action involving any of the three actions under
the second paragraph of Sec. 1 of Rule 63 unresolved. This is expressly stated in Sec. 5 of the
same rule. The court has no choice but to resolve the case.

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RULE 64: Review of Judgments and Final Orders


or Resolutions of the COMELEC and the COA
o The petition under Rule 64 is a petition for certiorari. It is directed only to judgments and
final orders or resolutions of the COMELEC and the COA.
o What is the period to file a petition for certiorari under Rule 64? Under Rule
65? Under Rule 64, the petition for certiorari must be filed within thirty (30) days from
notice of the judgment or final order or resolution sought to be reviewed; while under Rule
65, the petition shall be filed not later than sixty (60) days from notice of the judgment, order
or resolution.
o What are the decisions brought to the Supreme Court under Rule 64? Under
Rule 65? Under Rule 64, only judgments and final orders of the COMELEC and the COA
can be directly brought to the Supreme Court; while under Rule 65, judgments and final
orders of the lower courts must be filed with the RTC, or Court of Appeals, or the Supreme
Court, respecting the hierarchy of courts.
1. But if the petition under Rule 65 involves an act or an omission of a quasi-judicial
agency the petition shall be filed with and be cognizable only by the Court of Appeals,
unless otherwise provided by law.
o Is a motion for reconsideration required before resort to Rule 64 can be done?
Under Rule 65? Under Rule 64, a motion for reconsideration is required if the COMELEC
rules or COA rules allow the filing of a motion for reconsideration in their respective agencies;
while under Rule 65, a motion for reconsideration is required.
o Is a motion for reconsideration required before an appeal under Rules 40, 41,
42, 43 and 45 can be made? No, a motion for reconsideration is not required before one
can appeal an adverse judgment. An appeal is not required to have been subject of a motion
for reconsideration.
o Does the fresh-period rule apply to a petition for certiorari under Rule 64? No,
the fresh-period rule does not apply to Rule 64. The filing of a motion for reconsideration
in the COMELEC or COA only interrupts the running of the thirty-day (30) period to file the
petition for certiorari.
1. If the motion for reconsideration is denied, you will only have the remaining period of
the thirty-day (30) period, or five (5) days, if the remaining period is less than five (5)
days, to file the petition for certiorari.
o Does the fresh-period rule apply to a petition for certiorari under Rule 65?
Yes, the fresh-period rule applies to Rule 65. If the motion for reconsideration in the lower
court is denied, you will have a fresh period of sixty (60) days to file the petition for
certiorari.
o Must the attachments to the petition under Rule 64 be certified as true copies
of such attachments? Under Rule 65?
1. Under Rule 64, all attachments to the petition, including pertinent pleadings, shall be
certified true copies of such documents. This is because the COMELEC and the COA
are not part of the judicial system, and for this reason, there should be a way to
authenticate and validate the pleadings attached to the petition.
2. Under Rule 65, only the questioned order or decision should be certified as true copies
of the original. The rest of the attachments need not be certified as true copies.

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o Can you file a motion for extension of time to file a petition under Rule 64? No,
you cannot. There is no provision under Rule 64 governing an extension of time to file the
petition.
o Can you file a motion for extension of time to file a petition under Rule 65? No,
as a general rule, you cannot. A petition for certiorari under Rule 65 must be filed within a
non-extendible period of sixty (60) days. Under exceptional cases, however, the 60-day
period may be extended subject to the courts sound discretion.
1. The general rule is that a petition for certiorari must be filed strictly within 60 days
from notice of judgment or from the order denying a motion for reconsideration. This
is in accordance with the amendment introduced by A.M. No. 07-7-12-SC24 where no
provision for the filing of a motion for extension to file a petition for certiorari exists,
unlike in the original Section 4 of Rule 65 which allowed the filing of such a motion
but only for compelling reason and in no case exceeding 15 days. (Thenamaris vs. CA,
2014).
2. Under exceptional cases, however, the 60-day period may be extended subject to the
courts sound discretion. The deletion of the provisions in Rule 65 pertaining to
extension of time did not make the filing of such pleading absolutely prohibited. "If
such were the intention, the deleted portion could just have simply been reworded to
state that no extension of time to file the petition shall be granted. Absent such a
prohibition, motions for extension are allowed, subject to the courts sound
discretion." (Id.)

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RULE 65: Certiorari,19 Prohibition and Mandamus


Writ of Certiorari
o A motion for reconsideration is an essential precondition for the filing of a certiorari in order
to afford the tribunal, board or office, the opportunity to rectify the errors or irregularities.
But it does not mean that if you were unable to file a motion for reconsideration, your petition
should be dismissed because there are exceptions to the requirement of a motion for
reconsideration, viz:
1.
2.
3.
4.
5.
6.

When the order is a patent nullity;


When the questions in the proceedings have been previously passed upon by the court;
When there is urgent necessity of filing the petition for certiorari;
When the motion for reconsideration would be useless;
When petitioner was deprived of due process and there is extreme urgency; and
When relief from order of arrest is urgent, and the granting of relief by the trial court
is improbable; and
7. When issues raised are purely questions of law or where public interest is involved.

o Courts of justice determine the limits of power of the agencies and offices of the government
as well as those of its officers. In other words, the judiciary is the final arbiter on the question
whether or not a branch of government or any of its officials has acted without jurisdiction or
in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature The courts cannot hereafter evade the duty to settle
matters of this nature, by claiming that such matters constitute a political question. (Araullo
vs. Aquino, 2014).
o What are the remedies by which the grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government may be determined under the Constitution? Certiorari and
prohibition20 will lie for want or excess of jurisdiction. The following actions are used for
determining and correcting grave abuse of discretion amounting to lack or excess of
jurisdiction:
1. Petition for certiorari under Rule 64 (COMELEC and the COA);
2. Petition for certiorari under Rule 65; and
3. Petition for prohibition under Rule 65.
o Do you need to implead the court, agency, or the branch of government that
rendered the assailed decision under Rule 45? Under Rule 65? Under Rule 45, you
need not implead an agency of the government, you only implead a party to the case; while
under Rule 65, you implead as nominal party the court, agency, or tribunal that rendered the
assailed decision.

Rule 65, Sec. 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the
paragraph of Section 3, Rule 46.
19

Certiorari is a corrective remedy used for the re-examination of some action of an inferior tribunal, and is directed to the cause
or proceeding in the lower court and not to the court itself; while Prohibition is a preventive remedy issuing to restrain future
action, and is directed to the court itself.
20

jjsummer&rain#foursisons2015-0112

o What is the effect of a filing of a petition for review on certiorari under Rule
45? Filing of a petition for certiorari under Rule 65? Under Rule 45, an appeal
stays the judgment appealed from execution cannot be had, unless the judgment can be
executed for a good cause in the exercise of the sound discretion of the court (discretionary
execution); while under Rule 65, the assailed judgment will not be stayed, unless a TRO or PI
is obtained.
o What is the remedy for a discretionary act? For a ministerial act? A petition for
certiorari is the proper remedy to assail a discretionary act if such act was done with grave
abuse of discretion amounting to lack or excess of jurisdiction; while for a ministerial act,
mandamus is the proper remedy. Mandamus requires you to perform a writ that compels
you to do an act when there is a law that requires you to do an act specifically enjoined by law.
Writ of Prohibition21
o The purpose of a writ of prohibition is to keep a lower court within the limits of its
jurisdiction in order to maintain the administration of justice in orderly channels. Prohibition
is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior
court, or when, in the exercise of jurisdiction in handling matters clearly within its cognizance
the inferior court transgresses the bounds prescribed to it by the law, or where there is no
adequate remedy available in the ordinary course of law by which such relief can be obtained.
(Araullo vs. Aquino, 2014).
o A petition for prohibition is not the proper remedy to assail an IRR issued in the exercise of
a quasi-legislative function Prohibition lies against judicial or ministerial functions, but not
against legislative or quasi-legislative functions. (Id.)
o The remedies of certiorari and prohibition are necessarily broader in scope and reach and
may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation,
board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right,
undo and restrain any act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the Government, even if the latter does not
exercise judicial, quasi-judicial or ministerial functions. This application is expressly
authorized by the text of the second paragraph of Section 1, Art. VIII of the Constitution.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional
issues and to review and/or prohibit or nullify the acts of legislative and executive officials.
(Id.)
o Prohibition and Preliminary Injunction, distinctions:
1. Prohibition is directed to any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions; while a preliminary
injunction is directed against a party in an action.
2. Prohibition involves a question of jurisdiction, i.e. without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
21
Rule 65, Sec. 2. Petition for prohibition. When the proceedings of any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action
or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. The petition shall likewise
be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3,
Rule 46.

Can you file a petition for prohibition to enjoin an act that has already been performed? No, if an act has already been
performed, there is nothing more to prohibit. It is already fait accompli.

jjsummer&rain#foursisons2015-0113

jurisdiction; while a preliminary injunction does not involve a question of jurisdiction,


but a question of entitlement to the relief of injunction.
3. Prohibition is always a principal action; while preliminary injunction is a provisional
remedy an ancillary action. Although there is principal action for injunction, it is an
ordinary civil action.
Writ of Mandamus22
o Mandamus is a command issuing from a court of law of competent jurisdiction, in the name
of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some
corporation or person requiring the performance of a particular duty therein specified, which
duty results from the official station of the party to whom the writ is directed or from
operation of law. (Star Special Watchman vs. Puerto Princesa, 2014).
o The writ is a proper recourse for citizens who seek to enforce a public right and to compel
the performance of a public duty, most especially when the public right involved is mandated
by the Constitution. Mandamus will lie if the tribunal, corporation, board, officer, or person
unlawfully neglects the performance of an act which the law enjoins as a duty resulting from
an office, trust or station. (Id.)
1. The writ of mandamus, however, will not issue to compel an official to do anything
which is not his duty to do or which it is his duty not to do, or to give to the applicant
anything to which he is not entitled by law; nor will mandamus issue to enforce a right
which is in substantial dispute or as to which a substantial doubt exists, although
objection raising a mere technical question will be disregarded if the right is clear and
the case is meritorious. (Id.)
o As a rule, mandamus will not lie in the absence of any of the following grounds:
1. That the court, officer, board, or person against whom the action is taken unlawfully
neglected the performance of an act which the law specifically enjoins as a duty
resulting from office, trust, or station; or
2. That such court, officer, board, or person has unlawfully excluded petitioner/relator
from the use and enjoyment of a right or office to which he is entitled. On the part of
the relator, it is essential to the issuance of a writ of mandamus that he should have a
clear legal right to the thing demanded and it must be the imperative duty of
respondent to perform the act required; and
3. There should be no plain, speedy and adequate remedy in the ordinary course of law
other than the remedy of mandamus being invoked.23
o Mandamus cannot be used to enforce contractual obligations. Generally, mandamus will
not lie to enforce purely private contract rights, and will not lie against an individual unless
some obligation in the nature of a public or quasi-public duty is imposed. The writ is not
Rule 65, Sec. 3. Petition for mandamus. When any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some
other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn
certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46.
22

23
Mandamus can be issued only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief.
Although classified as a legal remedy, mandamus is equitable in its nature and its issuance is generally controlled by equitable
principles. Indeed, the grant of the writ of mandamus lies in the sound discretion of the court. (Star Special Watchman vs. Puerto
Princesa, 2014).

jjsummer&rain#foursisons2015-0114

appropriate to enforce a private right against an individual. The writ of mandamus lies to
enforce the execution of an act, when, otherwise, justice would be obstructed; and, regularly,
issues only in cases relating to the public and to the government; hence, it is called a
prerogative writ. To preserve its prerogative character, mandamus is not used for the
redress of private wrongs, but only in matters relating to the public. (Id.) (Emphasis
supplied)
o Can you file a petition for mandamus to compel an LGU to pay upon a writ of
execution? No, you cannot compel an LGU to pay upon a writ of execution, but you can
compel the enactment of the necessary ordinance and approval of the corresponding
disbursement by a writ of mandamus, in order to satisfy the judgment award.
1. Where a municipality fails or refuses, without justifiable reason, to effect payment of
a final money judgment rendered against it, the claimant may avail of the remedy of
mandamus in order to compel the enactment and approval of the necessary
appropriation ordinance, and the corresponding disbursement of municipal funds
therefor. (Star Special Watchman vs. Puerto Princesa, 2014).
o As regards final money judgment against the government or any of its agencies or
instrumentalities, the proper legal remedy is to seek relief with the Commission on Audit.
1. Upon determination of State liability, the prosecution, enforcement or satisfaction
thereof must still be pursued in accordance with the rules and procedures laid down
in P.D. No. 1445, otherwise known as the Government Auditing Code of the
Philippines. All money claims against the Government must first be filed with the
Commission on Audit which must act upon it within sixty (60) days. Rejection of the
claim will authorize the claimant to elevate the matter to the Supreme Court on
certiorari and, in effect, sue the State thereby (P.D. 1445, Sections 49-50). (Id.)

jjsummer&rain#foursisons2015-0115

RULE 66: Quo Warranto


o An action for quo warranto is generally instituted only by the government, the only exception
is when an aggrieved party institutes the action in his own name. The modes of institution of
an action for quo warranto are as follow:
1. Upon the direction of the PH President through the Solicitor General;
2. Upon a sufficient complaint;
3. Upon the relation of another person, i.e. relator,24 in which case, the Solicitor General
will first seek permission from the court on whether to proceed or not; and
4. Upon an action instituted by the aggrieved party.25
o A petition for quo warranto may be commenced by a verified petition against the following:
1. A person who usurps, intrudes into, or unlawfully holds or exercises a public office,
position or franchise;
2. A public officer who does or suffers an act which, by the provision of law, constitutes a
ground for the forfeiture of his office; or
3. An association which acts as a corporation within the Philippines without being legally
incorporated or without lawful authority so to act.
o An action under this Rule can be brought only in the Supreme Court, the Court of Appeals, or
in the RTC of the place where the respondent resides, but when the Solicitor General
commences the action, it may be brought in the RTC of Manila, in the Court of Appeals, or in
the Supreme Court.
o An action against a public officer or employee for his ouster from office or an action for
damages cannot be had, unless the same be commenced within one (1) year after the cause of
such ouster, or the right of the petitioner to hold such office or position arose, or one (1) year
after the entry of the judgment establishing the petitioner's right to the office in question.

24
25

A relator is someone who prompts the filing of the action.


An aggrieved party is the person claiming entitlement to the office or position usurped.

jjsummer&rain#foursisons2015-0116

RULE 67: Expropriation26


o When is expropriation resorted to? Expropriation is resorted to by the government only
when the expropriator and the owner of the property-to-be expropriated cannot agree on the
terms of the purchase offered by the government.
o Where do you file an action for expropriation? The jurisdiction over the action is not
dictated by the value of the property because the law looks at the exercise of the right to
expropriate hence it is to be filed in the RTC, whether the property to be expropriated is
real or personal. Venue, on the other hand, is dictated by the place where the property is
located.
o What are the two (2) stages of expropriation? Expropriation is a two-pronged
proceeding: first, the determination of the authority of the plaintiff to exercise the power and
the propriety of its exercise in the context of the facts which terminates in an order of
dismissal or an order of condemnation affirming the plaintiff's lawful right to take the
property for the public use or purpose described in the complaint and second, the
determination by the court of the just compensation for the property sought to be
expropriated. (City of Manila vs. Tan Te, 2011)
1. An order of expropriation denotes the end of the first stage of expropriation. Its end
then paves the way for the second stage the determination of just compensation, and,
ultimately, payment. An order of expropriation puts an end to any ambiguity
regarding the right of the petitioner to condemn the respondents properties. Because
an order of expropriation merely determines the authority to exercise the power of
eminent domain and the propriety of such exercise, its issuance does not hinge on the
payment of just compensation. After all, there would be no point in determining just
compensation if, in the first place, the plaintiffs right to expropriate the property was
not first clearly established. (Republic v. Phil-Ville Development and Housing
Corporation, 2007).
2. Conversely, as is evident from the foregoing, an order by the trial court fixing just
compensation does not affect a prior order of expropriation. As applied to the case at
bar, Cebu City can no longer ask for modification of the judgment, much less, withdraw
its complaint, after it failed to appeal even the first stage of the expropriation
proceedings. (Sps. Ciriaco vs. City of Cebu, 2009).
3. Expropriation is an example of an action involving multiple appeals. There is an order
of expropriation that could be appealed, and an order of determination of just
compensation which could also be appealed separately.
o Can the appointment of commissioners for the determination of just
compensation27 be dispensed with? The just compensation stage or the appointment of
commissioners cannot be dispensed with. It is a mandatory stage this stage is for the
protection of the owner of the property.
1. Just compensation is defined as the full and fair equivalent of the property taken from
its owner by the expropriator. The measure is not the takers gain, but the owners loss.
In eminent domain or expropriation proceedings, the just compensation to which the
owner of a condemned property is entitled is generally the market value. Such amount
is not limited to the assessed value of the property or to the schedule of market values
26

Eminent Domain is the power of the State, while expropriation is the procedure to exercise the right of eminent domain.

The determination of just compensation is essentially a judicial function that the judiciary exercises within the parameters of the
law. Any valuation for just compensation laid down in the statutes may serve only as a guiding principle or one of the factors in
determining just compensation, but it may not substitute the courts own judgment as to what amount should be awarded and how
to arrive at such amount.
27

jjsummer&rain#foursisons2015-0117

determined by the provincial or city appraisal committee. However, these values may
serve as factors to be considered in the judicial valuation of the property. (Republic
vs. Libunao, 2009).28
2. The general rule is that the just compensation to which the owner of the condemned
property is entitled to is the market value. Market value is that sum of money which
a person desirous but not compelled to buy, and an owner willing but not compelled
to sell, would agree on as a price to be paid by the buyer and received by the seller.
(Republic vs. BPI, 2013).
3. The general rule, however, is modified where only a part of a certain property is
expropriated. In such a case, the owner is not restricted to compensation for the
portion actually taken, he is also entitled to recover the consequential damage, if any,
to the remaining part of the property. (Id.)
4. To determine just compensation, the trial court should first ascertain the market
value of the property, to which should be added the consequential damages after
deducting therefrom the consequential benefits which may arise from the
expropriation. If the consequential benefits exceed the consequential damages, these
items should be disregarded altogether as the basic value of the property should be
paid in every case. (B.H. Berkenkotter & Co. v. Court of Appeals, 1992). Otherwise,
the government can simply walk away without paying just compensation.
5. No actual taking of the building is necessary to grant consequential damages.
Consequential damages are awarded if as a result of the expropriation, the remaining
property of the owner suffers from an impairment or decrease in value. Considering
that the subject property is being expropriated in its entirety, there is no remaining
portion which may suffer an impairment or decrease in value as a result of the
expropriation. Hence, the award of consequential damages is improper. (Republic vs.
Soriano, 2015).
o Is the trial court bound to adopt the commissioners report on the
determination of just compensation? No, the trial court is not bound by the
commissioners recommended valuation on the property sought to be expropriated. The
court has the discretion on whether to adopt the commissioners valuation or to substitute its
own estimate of the value as gathered from the records.
o How do you determine just compensation when the government takes
possession of your property without instituting an action for expropriation? The
property owner is still entitled to compensation despite the non-filing of an action for
expropriation. You can file an action to recover just compensation and damages.
1. When there is no action for expropriation and the case involves only a complaint for
damages or just compensation, the provisions of the Rules of Court on ascertainment
of just compensation (i.e., provisions of Rule 67) are no longer applicable, and a trial
before commissioners is dispensable. (Republic vs. Court of Appeals, 2009)
2. Rule 67 presupposes a prior filing of complaint for eminent domain with the
appropriate court by the expropriator. If no such complaint is filed, the expropriator
is considered to have violated procedural requirements, and hence, waived the usual
procedure prescribed in Rule 67, including the appointment of commissioners to
ascertain just compensation. (Id.)
Among the factors to be considered in arriving at the fair market value of the property are the cost of acquisition, the current
value of like properties, its actual or potential uses, and in the particular case of lands, their size, shape, location, and the tax
declarations thereon. The measure is not the taker's gain but the owner's loss. To be just, the compensation must be fair not only
to the owner but also to the taker. (Republic vs. Asia Pacific Integrated Steel Corporation, 2014)
28

jjsummer&rain#foursisons2015-0118

o What is public use? Public use, in common acceptation, means use by the public.
However, the concept has expanded to include utility, advantage or productivity for the
benefit of the public. The meaning of the term public use has evolved over time in response
to changing public needs and exigencies. Public use which was traditionally understood as
strictly limited to actual use by the public has already been abandoned. Public use has
now been held to be synonymous with public interest, public benefit, and public
convenience.
o Can an action for expropriation be withdrawn? Yes, an action for expropriation can
be withdrawn at any time for as long as there is no order of expropriation.
1. Once there is an order of expropriation, the government can no longer withdraw,
provided that there remains to be a public purpose without which, the proceedings
should be dismissed.
o What happens if the judgment in an expropriation case had long been final and
executory? If the expropriation case had long been final and executory, both the Order of
Expropriation, and the Order fixing Just Compensation by the RTC can no longer be
modified. In short, the government cannot withdraw from the expropriation proceedings.
o What is the effect of the abandonment of public purpose during the
proceedings for expropriation? The action for expropriation should be dismissed there
being no public use anymore. It is essential that the element of public use of the property
be maintained throughout the proceedings for expropriation. The moment it appears in
whatever stage of the proceedings that the expropriation is not for a public use, the complaint
should be dismissed and all the parties thereto should be relieved from further annoyance or
litigation.
1. In the case of Metropolitan Water vs. Delos Angeles (1931), the court held that: The
very moment that it appears at any stage of the proceedings that the expropriation is
not for a public use, the action must necessarily fail and should be dismissed, for the
reason that the action cannot be maintained at all except when the expropriation is for
some public use. That must be true even during the pendency of the appeal or at any
other stage of the proceedings.
2. With respect to the element of public use, the expropriator should commit to use the
property pursuant to the purpose stated in the petition for expropriation filed, failing
which, it should file another petition for the new purpose. If not, it is then incumbent
upon the expropriator to return the said property to its private owner, if the latter
desires to reacquire the same. Otherwise, the judgment of expropriation suffers an
intrinsic flaw, as it would lack one indispensable element for the proper exercise of the
power of eminent domain, namely, the particular public purpose for which the
property will be devoted. (Mactan-Cebu International Airport Authority v. Lozada,
Sr., 2010)
3. In view of the discontinuance of the proceedings and the eventual return of the
property to the respondents, there is no need to pay just compensation to them
because their property would not be taken by NAPOCOR. Instead of full market value
of the property, therefore, NAPOCOR should compensate the respondents for the
disturbance of their property rights from the time of entry in March 1993 until the time
of restoration of the possession by paying to them actual or other compensatory
damages. (Republic vs. Borbon, 2015).

jjsummer&rain#foursisons2015-0119

o Who can be parties to an action for expropriation? The parties to an action for
expropriation is the government, or its instrumentality which institutes the action;29 and all
persons owning or claiming to own, or occupying, any part thereof or interest in the property.
o Can an easement of right-of-way amount to expropriation? Yes, an easement of
right-of-way can amount to expropriation. Expropriation is not limited to the acquisition of
real property with a corresponding transfer of title or possession. The right-of-way easement
resulting in a restriction or limitation on property rights over the land traversed by
transmission lines also falls within the ambit of the term expropriation. (NAPOCOR vs.
Santa Loro, 2008).
1. After petitioners transmission lines were fully constructed on portions of
respondents lots, petitioner imposed restrictions thereon such as the prohibition
against planting or building anything higher than three meters below the area
traversed by said lines. Petitioners acquisition of an easement of right-of-way on the
lands of the respondents amounted to an expropriation of the portions of the latters
properties and perpetually deprived the respondents of their proprietary rights
thereon and for which they are entitled to a reasonable and just compensation. (Id.)
o Can you recover interest in case payment of the just compensation is delayed?
Yes, if only there is delay in payment due to the fault of the government. The mere fact of
delay will not entitle you to recover interest.
1. The concept of just compensation embraces not only the correct determination of the
amount to be paid to the owners of the land, but also the payment of the land within a
reasonable time from its taking. Without prompt payment, compensation cannot be
considered just inasmuch as the property owner is being made to suffer the
consequences of being immediately deprived of his land while being made to wait for
a decade or more before actually receiving the amount necessary to cope with his loss.
(Apo Fruits vs. Court of Appeals, 2007).
o How much should be the initial payment of the government be in order to take
possession of the property to be expropriated?
1. Under the Rules of Court, the government should deposit the assessed value of the
real property in a government depositary bank. If it should be a personal property, the
amount to be deposited shall be determined by the court;
2. Under the Local Government Code, the LGU should, upon the institution of the
expropriation proceedings, deposit with the proper court at least fifteen percent (15%)
of the fair market value of the property to be expropriated;
3. Under RA No. 8974 (re: government infrastructure projects), the government
should immediately pay the owner of the property its proffered value or the full
amount of the zonal value.
a. RA No. 8974 states that in case the completion of a government infrastructure
project is of utmost urgency and importance, and there is no existing valuation
of the area concerned, the implementing agency shall immediately pay the
owner of the property its proffered value, taking into consideration the
standards prescribed in Section 5 of RA No. 8974. (Republic vs. Gingoyon,
2005)

Please note that the National Governments power to expropriate is supreme; while an LGUs power to expropriate is inferior to
the national government. An LGU can only expropriate pursuant to an ordinance enacted for the purpose.

29

jjsummer&rain#foursisons2015-0120

o Can there be a counterclaim in an action for expropriation? No, you cannot make a
counterclaim in expropriation cases. Under Sec. 3 of Rule 67, no counterclaim, cross-claim
or third-party complaint shall be alleged or allowed in the answer or any subsequent
pleading.
o What is your remedy from an order of expropriation? A certiorari is not the remedy
for an order of expropriation it being a final judgment, and not interlocutory. The remedy
is an appeal. Under Sec. 4 of Rule 67, a final order sustaining the right to expropriate the
property may be appealed by any party aggrieved thereby. Such appeal, however, shall not
prevent the court from determining the just compensation to be paid.

jjsummer&rain#foursisons2015-0121

RULE 68: Foreclosure of Real Estate Mortgage


o Judicial Foreclosure is just like a regular action you will have to file a complaint and pay
the required docket fees. Your prayer in a complaint in an action for foreclosure is that the
defendant be ordered to pay his obligation within a certain period, and if he cannot pay,
foreclosure of the mortgaged property be had without this prayer, your action will simply
be an action for collection of sum of money.
o Extrajudicial foreclosure, on the other hand, is governed by Act No. 3135. You do not file
a complaint to institute an extrajudicial foreclosure, what is to be filed instead is a petition
for extrajudicial foreclosure which requires no answer from the adverse party. The petition
shall not be raffled and assigned to a regular court judge.
1. Once the petition is filed, and for as long as the necessary requirement of posting and
publication is followed, then the property can now be sold on a public foreclosure sale.
2. Do you need a new publication and posting if, for instance, you agree to a
resetting of the date of a foreclosure (extrajudicial) sale after the
requirements of posting and publication have been satisfied? Yes. In the
absence of a new publication and posting, any sale would be declared as null and void.
o Redemption of Property Personal property sold cannot be redeemed. Only real
property sold can be redeemed. Real property sold may be redeemed only by the following
persons (redemptioner): (1) the judgment obligor, or his successor in interest; and (2) a
creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold
subsequent to the lien under which the property was sold. But once the judgment obligor
redeems, there can be no further redemption.
o Within what period can you redeem under Rule 39? You can redeem the property
from the purchaser at any time within one (1) year from the date of the registration of the
certificate of sale. If the property is not redeemed within such period, title to the property
shall now be consolidated to the purchaser of the property.
o Is there a redemption period in a judicial foreclosure sale? Yes. Under Rule 68,
unless there is a law that gives a longer period, the redemption period is what you call as
equity of redemption, i.e. a period not less than 90 days nor more than 120 days.
o Is there a redemption period in an extrajudicial foreclosure sale? Yes. Under Act
No. 3135, you can redeem the property from the purchaser at any time within one (1) year
from the date of the registration of the certificate of sale.
o Who is entitled to possession, rents, earnings, and income accruing to the
property during the redemption period?
1. Under Rule 39,30 the judgment obligor is entitled to possession and income;
2. Under Rule 68, the mortgagor is entitled to possession and income;
3. Under Act No. 3135, the mortgagor is entitled to possession and income.

Rule 39, Sec. 31. Manner of using premises pending redemption; waste restrained. Until the expiration of the time
allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by
injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in
possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption,
to continue to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to
make the necessary repairs to buildings thereon while he occupies the property.
30

jjsummer&rain#foursisons2015-0122

o What is the redemption period and who is entitled to possession of the property
during the redemption period if the mortgagee is a bank?
1. If the mortgagor is a natural person, and his property is mortgaged in favor of a
bank, the redemption period, whether under judicial or extrajudicial foreclosure, is a
period of one (1) year. The purchaser or the bank, if the bank is the bidder, is entitled
to possession during the redemption period.
2. If the mortgagor is a juridical person whose property is mortgaged in favor of
banks, the redemption period (right of redemption) is only: (1) until, but not after, the
registration of the certificate of foreclosure sale; or (2) ninety (90) days after
foreclosure, whichever comes first.31
o Can you stop a foreclosure sale? Can you annul a foreclosure sale? Yes, you can
stop a foreclosure sale by filing an action for injunction. You can also annul a foreclosure sale
as provided under Sec. 8 of Act No. 3135.32
o How is venue dictated in an action for judicial foreclosure? In an action for judicial
foreclosure, the venue shall be in the place where the property is located.
o How is venue dictated in an action for extrajudicial foreclosure? In an extrajudicial
foreclosure, where the properties are in different localities, payment of fees can be done in
one locality but the actual sale shall be in the place where each of the mortgaged property is
located.
1. Where the application concerns the extrajudicial foreclosure of mortgages of real
estates and/or chattels in different locations covering one indebtedness, only one filing
fee corresponding to such indebtedness shall be collected. (Sps. Yu vs. PCIB, 2006).
2. The collecting Clerk of Court shall, apart from the official receipt of the fees, issue a
certificate of payment indicating the amount of indebtedness, the filing fees collected,
the mortgages sought to be foreclosed, the real estates and/or chattels mortgaged and
their respective locations, which certificate shall serve the purpose of having the
application docketed with the Clerks of Court of the places where the other properties
are located and of allowing the extrajudicial foreclosures to proceed thereat. (Id.)
o Disposition of Proceeds of Sale: The amount realized from the foreclosure sale of the
mortgaged property shall, after deducting the costs of the sale, be paid to the person
foreclosing the mortgage, and when there shall be any balance or residue, after paying off the
mortgage debt due, the same shall be paid to junior encumbrancers in the order of their
priority, to be ascertained by the court, or if there be no such encumbrancers or there be a
balance or residue after payment to them, then to the mortgagor or his duly authorized agent,
or to person entitled to it. (Rule 68, Sec. 4)

31
RA No. 8791 (General Banking Law of 2000), Sec. 47: xxx Notwithstanding Act 3135, juridical persons whose property is
being sold pursuant to an extrajudicial foreclosure, shall have the right to redeem the property in accordance with this provision
until, but not after, the registration of the certificate of foreclosure sale with the applicable Register of Deeds which in no case shall
be more than three (3) months after foreclosure, whichever is earlier. Owners of property that has been sold in a foreclosure sale
prior to the effectivity of this Act shall retain their redemption rights until their expiration.
32
Act No. 3135, Sec. 8. The debtor may, in the proceedings in which possession was requested, but not later than thirty days
after the purchaser was given possession, petition that the sale be set aside and the writ of possession cancelled, specifying the
damages suffered by him, because the mortgage was not violated or the sale was not made in accordance with the provisions
hereof, and the court shall take cognizance of this petition in accordance with the summary procedure provided for in section one
hundred and twelve of Act Numbered Four hundred and ninety-six; and if it finds the complaint of the debtor justified, it shall
dispose in his favor of all or part of the bond furnished by the person who obtained possession. Either of the parties may appeal
from the order of the judge in accordance with section fourteen of Act Numbered Four hundred and ninety-six; but the order of
possession shall continue in effect during the pendency of the appeal.

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o Deficiency Judgment: If upon the sale of any real property, there be a balance due to the
plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment
against the defendant for any such balance for which, by the record of the case, he may be
personally liable to the plaintiff, upon which execution may issue immediately if the balance
is all due at the time of the rendition of the judgment; otherwise, the plaintiff shall be entitled
to execution at such time as the balance remaining becomes due under the terms of the
original contract, which time shall be stated in the judgment. (Rule 68, Sec. 6).

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RULE 69: Partition33


o Judicial and Extrajudicial Partition, distinctions:
1. Judicial partition under Rule 69 requires the filing of an action in court; while an
extrajudicial partition under Rule 74 may be done (1) upon an affidavit of selfadjudication; (2) upon a public instrument; or (3) upon a stipulation in an action for
judicial partition in which case it will be a compromise judgment.
2. In a judicial partition, there is no need for publication; while in an extrajudicial
partition publication is required, and if the property partly consists of personal
property, a bond is needed in an amount equivalent to the value of the personal
property involved.
o Who are indispensable parties in an action for partition? In judicial partition, the
indispensable parties are all the owners. Failure to include any of the indispensable parties
will render the judgment of the court null and void.
o What is the remedy of the excluded co-owner in an action for partition? The
excluded co-owner can still recover his share by virtue of Sec. 1234 of Rule 69.
o What is the remedy of the excluded co-owner in an extrajudicial partition? The
excluded co-owner may compel the settlement of the estate in the courts for the purpose of
satisfying his lawful participation at any time within two (2) years after the settlement and
distribution of the estate. (Rule 74, Sec. 4).
o What are the two (2) stages of judicial partition?
1. Determination of co-ownership: The first phase of a partition and/or accounting
suit is taken up with the determination of whether or not a co-ownership in fact exists,
and a partition is proper (i.e., not otherwise legally proscribed) and may be made by
voluntary agreement of all the parties interested in the property. This phase may end
with a declaration that plaintiff is not entitled to have a partition either because a coownership does not exist, or partition is legally prohibited. It may end, on the other
hand, with an adjudgment that a co-ownership does in truth exist, partition is proper
in the premises and an accounting of rents and profits received by the defendant from
the real estate in question is in order. (Lacbayan vs. Samoy, 2011).
2. Partition: The second phase commences when it appears that "the parties are
unable to agree upon the partition" directed by the court. In that event, partition shall
be done for the parties by the court with the assistance of not more than three (3)
commissioners. This second stage may well also deal with the rendition of the
accounting itself and its approval by the court after the parties have been accorded
opportunity to be heard thereon, and an award for the recovery by the party or parties
thereto entitled of their just share in the rents and profits of the real estate in question.
(Id.)
o Is the appointment of commissioners in an action for judicial partition
mandatory? No, appointment of commissioners is not mandatory under Rule 69. It is only
resorted to if the parties are unable to agree upon the partition that the court shall appoint
33

This rule applies to real and personal properties, or a combination of both real and personal properties.

34
Rule 69, Sec. 12. Neither paramount rights nor amicable partition affected by this Rule. Nothing in this Rule
contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved
by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made;
nor so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by
agreement and suitable instruments of conveyance without recourse to an action.

jjsummer&rain#foursisons2015-0125

not more than three (3) competent and disinterested persons as commissioners to make the
partition.
o What if the property to be partitioned is indivisible, such that if you divide it, it
will be destroyed or will be rendered unusable? The property may be sold and the
proceeds divided among the co-owners; or the property can be purchased by one of the coowners, and the proceeds divided among the rest of the non-buying co-owners.
o What is the venue of an action for partition if the property consists of both real
and personal properties? You follow the rule on joinder of actions, in which case the
property with the highest value dictates the court which has jurisdiction over the action,
respecting the rule on venue.

jjsummer&rain#foursisons2015-0126

RULE 70: Forcible Entry and Unlawful Detainer35


o One of the three kinds of action for the recovery of possession of real property is accion
interdictal, or an ejectment proceeding - which may be either that for forcible entry
(detentacion) or unlawful detainer (desahucio), which is a summary action for the recovery
of physical possession where the dispossession has not lasted for more than one year, and
should be brought in the proper inferior court. In ejectment proceedings, the courts resolve
the basic question of who is entitled to physical possession of the premises, possession
referring to possession de facto, and not possession de jure. (Corpuz vs. Sps. Agustin, 2012).
o Can the court determine ownership in an action for ejectment?36 Yes, but only
provisionally for the purpose of resolving the issue of possession. The determination of
ownership therein is not res judicata you are not barred from instituting an action for
determination of ownership.
1. Where the parties to an ejectment case raise the issue of ownership, the courts may
pass upon that issue to determine who between the parties has the better right to
possess the property. However, where the issue of ownership is inseparably linked to
that of possession, adjudication of the ownership issue is not final and binding, but
only for the purpose of resolving the issue of possession. The adjudication of the issue
of ownership is only provisional, and not a bar to an action between the same parties
involving title to the property. (Id.).
o Unlawful Detainer and Forcible Entry, distinguished:
1. In unlawful detainer, the possession of the defendant at the outset is lawful, but after
the breach or expiration of the period to hold possession, it becomes unlawful; while
in forcible entry, possession of the defendant at the outset is already unlawful there
being deprivation of the property by force, intimidation, threat, strategy, or stealth.
2. Unlawful detainer requires a prior demand37 (demand letter) which should contain a
demand for the defendant to pay and vacate or comply and vacate - failure to make
such an allegation in the demand letter will make your demand letter defective; while
for forcible entry, a prior demand letter is not required. The most important allegation
in an action for forcible entry is prior physical possession, and there is deprivation of
the property by force, intimidation, threat, strategy, or stealth.
o What is the effect of a defective demand letter? If the demand letter is defective, your
case for ejectment can be dismissed. A prior demand letter to pay and vacate or comply
and vacate is jurisdictional.
o Is unlawful detainer limited to a lease contract? No, it is not limited to a lease
contract. It applies to any contract wherein the possession is initially lawful which later
becomes unlawful.

The Rules on Summary Procedure, except for some little differences, were lifted into Rule 70. The only court having jurisdiction
over ejectment cases is the MTC, regardless of the amount of damages or unpaid rentals sought to be recovered.
35

Rule 70, Sec. 16. Resolving defense of ownership. When the defendant raises the defense of ownership in his pleadings
and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved
only to determine the issue of possession.
36

Rule 70, Sec. 2. Lessor to proceed against lessee only after demand. Unless otherwise stipulated, such action by the
lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the
lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the
premises if no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land or five
(5) days in the case of buildings.
37

jjsummer&rain#foursisons2015-0127

Summary Procedure in an Ejectment Case:


o Let us say that a complaint38 for ejectment was filed - the responsive pleading thereto is an
answer39 to be filed within a period of ten (10) days.40
1. Can the court dismiss the complaint outright? Yes. Under Summary Procedure,
the complaint can be dismissed outright. If the court will not dismiss the complaint, it
is the duty of the court to issue summons requiring the defendant to file an answer.
2. Can you file a motion to declare defendant in default in case he does not
file an answer? No, you cannot file a motion to declare defendant in default such
being a prohibited pleading.41 If there is no answer, the court can already render a
judgment; but if the court did not act, you can file a motion informing the court that
there is no answer not a motion to declare defendant in default.
o Within thirty (30) days from the defendants filing of his answer, the court schedules a
preliminary conference not a pre-trial conference. If in the preliminary conference, the
plaintiff is absent, but the defendant is present, the case will be dismissed; but if the plaintiff
is present, while the defendant is absent, the court can already render a judgment.
1. Can you file a motion for cancellation of hearing? The provision of the law says
that only dilatory motions for postponement are prohibited, but to be safe, do not file
a motion for cancellation of hearing because it is the court that determines whether or
not your motion is dilatory.
2. Can the court still render a judgment if the absent defendant has a valid
reason for his non-appearance at the preliminary conference? If there is
good reason for the absence, then the court will have to simply reset the hearing to
allow the party to appear next time.
3. Does the rule on ejectment allow a representative to substitute for a
partys personal appearance in the preliminary conference? Yes, the rules
on ejectment allows substitution for a partys personal appearance if there are valid
reasons or if a representative has a special authority to appear in behalf of a party. The
second sentence of par. (1), Sec. 8 of Rule 70 provides that: The provisions of Rule 18

A complaint for ejectment must be filed within one (1) year from the time of dispossession, but jurisprudence holds that the
counting of the one-year period is from the date of the last demand.
38

Affirmative and negative defenses not pleaded in the answer shall be deemed waived, except lack of jurisdiction over the subject
matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to
counterclaims or cross-claims shall be served and filed within ten (10) days from service of the answer in which they are pleaded.

39

Rule 70, Sec. 4. Pleadings allowed. The only pleadings allowed to be filed are the complaint, compulsory counterclaim
and cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified.

40

41

Rule 70, Sec. 13. Prohibited pleadings and motions. The following petitions, motions, or pleadings shall not be allowed:
1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply
with Section 12 (Referral for Conciliation);
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions.

jjsummer&rain#foursisons2015-0128

on pre-trial shall be applicable to the preliminary conference unless inconsistent with


the provisions of this Rule.42
4. Can the court render a judgment if after the termination or conclusion of
the preliminary conference, it is convinced that there is sufficient
evidence to pass judgment? Yes, the court can render a judgment if it is convinced
that there is sufficient evidence to pass judgment even without conducting a trial.
o Within five (5) days after the termination of the preliminary conference, the court issues a
preliminary conference order43 requiring both parties to submit their position papers and
judicial affidavits within ten (10) days from receipt of the order.
o From the submission of the parties position papers and judicial affidavits, or the expiration
of the period for filing the same, the court has thirty (30) days to render judgment. There is
no need for trial in a summary procedure for civil cases44 the position papers and the
judicial affidavits will suffice as basis for the courts judgment.45
o The judgment rendered in an action for forcible entry or detainer shall be conclusive with
respect to the possession only and shall in no wise bind the title or affect the ownership of the
land or building. Such judgment shall not bar an action between the same parties respecting
title to the land or building. (Rule 70, Sec. 18, par. 1)
1. Can you file a motion for reconsideration in case of an adverse judgment?
No, you cannot file a motion for reconsideration it being a prohibited pleading.
2. What is your remedy in case of an adverse judgment? Your remedy is to file
an appeal (Rule 40) from the adverse judgment within the reglementary period.
3. Can the mere filing of an appeal stay the judgment? No, an appeal will not stay
the judgment. By its very nature, judgment in ejectment cases are executory not
final and executory, but only executory.
4. How can you stay the immediate execution of the judgment? To stay the
immediate execution of the judgment, you must:
a. File an appeal within the reglementary period;
b. Pay the docket fees;
In Macasaet vs. Macasaet (2004), the court held that Rule 18, which allows the appearance of a representative for a party,
applies to a preliminary conference under Section 8 of Rule 70, thus: Unless inconsistent with Rule 70, the provisions of Rule 18
on pretrial applies to the preliminary conference. Under Section 4 of this Rule, the nonappearance of a party may be excused by
the showing of a valid cause; or by the appearance of a representative, who has been fully authorized in writing to enter into an
amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and
of documents.
42

Rule 70, Sec. 9. Record of preliminary conference. Within five (5) days after the termination of the preliminary
conference, the court shall issue an order stating the matters taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the parties;
3. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be
rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days
from issuance of the order;
4. A clear specification of material facts which remain controverted; and
5. Such other matters intended to expedite the disposition of the case.
43

But in summary procedure for criminal cases, trial is required because the Constitution requires that the accused should not only
be informed of the accusations against him, but also be confronted with the witnesses and the evidence against him.
44

However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order
specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten
(10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last affidavit or
the expiration of the period for filing the same. The court shall not resort to the foregoing procedure just to gain time for the
rendition of the judgment.

45

jjsummer&rain#foursisons2015-0129

c. Post a sufficient supersedeas bond covering the rentals in arrears from the
time you failed to pay until judgment; and
d. Pay on a monthly basis before the appellate court the monthly rental or the
payment for the use or occupation of the property.
o Is the decision of the RTC on appeal executory?46 Yes. As a rule, the decision of the
RTC on the appealed ejectment case is executory, and cannot be stayed,47 unless you are able
to obtain a TRO or a preliminary injunction from the appellate court.
1. In the case of Benedicto vs. Court of Appeals (2005), the court held that: Despite the
executory character of the RTC judgment against the defendant in ejectment cases,
injunctive relief may still be granted.
2. The court further held that: First, a preliminary injunction may be granted even if not
prayed for as long as the requisites therefor are present. More so if it is prayed for.
Second, contrary to petitioners contention, the questioned writ of preliminary
injunction did not dispose of the main case without trial. The writ merely suspended
the execution of the RTC judgment pending appeal. It bears stressing that the main
case, subject of the petition for review, is still yet to be resolved by the Court of Appeals.
Lastly, it is evident from Judge Pagapong-Agraviadors letter that the impugned
judgment is not yet fully executed. Thus, the acts sought to be enjoined by the assailed
writ of preliminary injunction are not yet fait accompli. (Id.)
o Can you apply for a preliminary mandatory injunction48 in ejectment cases? Yes,
you can apply for a preliminary mandatory injunction in an ejectment case.
1. If you apply in the MTC, you have to apply for it within five (5) days from the filing of
the complaint.
2. If you apply for it in the RTC, application must be done within ten (10) days from the
perfection of the appeal.

A decision of the RTC, whether in the exercise of its original jurisdiction or appellate jurisdiction, on a pure question of law can
be directly elevated to the Supreme Court on a petition for review on certiorari. What cannot happen is a decision of the MTC being
reviewed directly by the Supreme Court, even if it is a pure question of law.
46

Rule 70, Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court. The judgment of the
Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken
therefrom.
48
Rule 70, Sec. 20. Preliminary mandatory injunction in case of appeal. Upon motion of the plaintiff, within ten (10)
days from the perfection of the appeal to the Regional Trial Court, the latter may issue a writ of preliminary mandatory injunction
to restore the plaintiff in possession if the court is satisfied that the defendant's appeal is frivolous or dilatory, or that the appeal
of the plaintiff is prima facie meritorious.
47

jjsummer&rain#foursisons2015-0130

RULE 71: Contempt


o Civil49 and Criminal50 Contempt, distinctions:
1. Civil contempt consists in failing to do something ordered to be done by a court in a
civil action for the benefit of the opposing party therein and is, therefore, an offense
against the party in whose behalf the violated order is made. A criminal contempt, on
the other hand, is conduct that is directed against the dignity and authority of the court
or a judge acting judicially; it is an act obstructing the administration of justice which
tends to bring the court into disrepute or disrespect.
2. The proceedings to punish a civil contempt are remedial and for the purpose of the
preservation of the right of private persons. It has been held that civil contempt is
neither a felony nor a misdemeanor, but a power of the court. On the other hand, a
criminal contempt, being directed against the dignity and authority of the court, is an
offense against organized society and, in addition, is also held to be an offense against
public justice which raises an issue between the public and the accused, and the
proceedings to punish it are punitive.
3. Since the purpose of civil contempt proceedings is remedial, the defendant's intent in
committing the contempt is immaterial. Hence, good faith or the absence of intent to
violate the court's order is not a defense in civil contempt. On the other hand, intent is
a necessary element in criminal contempt, and that no one can be punished for a
criminal contempt unless the evidence makes it clear that he intended to commit it.
4. Who institutes a civil contempt proceeding? How about in a criminal
contempt proceeding? Civil contempt proceedings should be instituted by an
aggrieved party, or his successor, or someone who has a pecuniary interest in the right
to be protected. Criminal contempt proceedings, on the other hand, is instituted by the
State it being the prosecutor.
5. Is there a presumption of innocence in a civil contempt case? How about
in a criminal contempt case? There is no presumption of innocence in a civil
contempt proceeding; while in a criminal contempt case, there is a presumption of
innocence.
6. Is the dismissal of a civil contempt case appealable? How about in a
criminal contempt case? The dismissal of a civil contempt case is appealable; while
a dismissal of a criminal contempt case is not appealable it being an acquittal.
7. What is the quantum of proof in a civil contempt case? How about in a
criminal contempt case? The quantum of proof for a civil contempt case must
amount to more than a mere preponderance of evidence it lies somewhere between
the criminal "reasonable doubt" burden and the civil "fair preponderance" burden;
while in a criminal contempt case, it is proof beyond reasonable doubt.
It has been held that a proceeding for contempt to enforce a remedy in a civil action is a proceeding in that action. Accordingly,
where there has been a violation of a court order in a civil action, it is not necessary to docket an independent action in contempt
or proceed in an independent prosecution to enforce the order. It has been held, however, that while the proceeding is auxiliary
to the main case in that it proceeds out of the original case, it is essentially a new and independent proceeding in that it involves
new issues and must be initiated by the issuance and service of new process. (People vs. Godoy, 1995).
49

Strictly speaking, however, they are not criminal proceedings or prosecutions, even though the contemptuous act involved is
also a crime. The proceeding has been characterized as sui generis, partaking of some of the elements of both a civil and criminal
proceeding, but really constituting neither. In general, criminal contempt proceedings should be conducted in accordance with the
principles and rules applicable to criminal cases, in so far as such procedure is consistent with the summary nature of contempt
proceedings. So it has been held that the strict rules that govern criminal prosecutions apply to a prosecution for criminal contempt,
that the accused is to be afforded many of the protections provided in regular criminal cases, and that proceedings under statutes
governing them are to be strictly construed. However, criminal proceedings are not required to take any particular form so long
as the substantial rights of the accused are preserved. (Id.)
50

jjsummer&rain#foursisons2015-0131

o On the basis of the foregoing legal principles which are now well settled, it can be safely
concluded that under paragraph (d) of Section 3, Rule 71 of the Rules of Court on indirect
contempt, any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice, constitutes criminal contempt.
o Direct51 and Indirect Contempt,52 distinctions:
1. Do you need to file a complaint for direct contempt? For indirect
contempt? You do not need to file a complaint for direct contempt. Direct contempt
is any act of disrespect or disobedience in the presence of the court or the judge. It is
the court itself who summarily adjudges a person guilty of direct contempt; while in
indirect contempt, a complaint for indirect contempt is necessary. Indirect contempt
is a violation of a writ, order, or process of the court. It is not a summary proceeding it requires notice and hearing.
2. What is your remedy if the court holds you liable for direct contempt? Sec.
2 of Rule 71 provides that: The person adjudged in direct contempt by any court may
not appeal therefrom, but may avail himself of the remedies of certiorari or
prohibition. An order of direct contempt is executory. In order to stay the same, you
do not only file certiorari or prohibition, but you will also have to post a bond.
3. What is your remedy if the court holds you liable for indirect contempt?
Your remedy from a judgement finding you guilty of an indirect contempt is an appeal.
The judgment is executory and in order to stay the same, you do not only file an appeal,
but you will also have to post a bond.
o How do you initiate an action for indirect contempt? There are two (2) ways to
initiate an action for indirect contempt, viz:
1. The court upon a formal charge motu proprio, i.e. the judge must make a formal
charge motu proprio. The court can require the respondent to show cause why he
should not be punished for indirect contempt; or
2. Through a verified petition, because you cannot file a motion for indirect contempt in
the same court. The verified petition must be accompanied with a certificate of nonforum shopping, supporting particulars and certified true copies of documents or
Rule 71, Sec. 1. Direct contempt punished summarily. A person guilty of misbehavior in the presence of or so near a
court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities
toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required
to do so, may be summarily adjudged in contempt by such court and punished by a fine not exceeding two thousand pesos or
imprisonment not exceeding ten (10) days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a
fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court.
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Rule 71, Sec. 3. Indirect contempt to be punished after charge and hearing. After charge in writing has been filed,
and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard
by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:
52

1.
2.

3.
4.
5.
6.
7.

Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;
Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who,
after being dispossessed or ejected from any real property by the judgment or process of any court of competent
jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing
acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled
thereto;
Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt
under section 1 of this Rule;
Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;
Assuming to be an attorney or an officer of a court, and acting as such without authority;
Failure to obey a subpoena duly served;
The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of
a court held by him.

But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court,
or from holding him in custody pending such proceedings.

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papers involved therein, docketed, heard and decided separately, with an option to
consolidate if the contempt charges arose out of or are related to a principal action
pending in the court.
o What are the penalties for contempt?
1. For direct contempt:
a. If committed against an RTC or a superior court, the punishment is
imprisonment of ten (10) days and/or fine not exceeding PhP 2,000.
b. If committed against the MTC, the punishment is imprisonment of one (1) day
and/or fine not exceeding PhP 200.
2. For indirect contempt:
a. If committed against an RTC or a superior court, the punishment is
imprisonment of six (6) months and/or fine not exceeding PhP 30,000.
b. If committed against the MTC, the punishment is imprisonment not exceeding
one (1) month, and/or a fine not exceeding PhP 5,000.
o Separate Penalty for Each Contumacious Act: In the case of Sps. Curata vs. Philippine
Ports Authority (2009), the court held that: A person guilty of indirect contempt may be
punished by a fine not exceeding PhP 30,000 or imprisonment not exceeding six (6) months
or both. Judge Tac-an violated four (4) resolutions/processes of the CA, namely: the January
10, 2000 TRO, the March 15, 2005 Writ of Preliminary Injunction, the April 19, 2005 TRO
and the June 3, 2005 Resolution, for which he is hereby fined PhP 30,000 for each violation.
Let this serve as a warning to all trial courts to strictly comply with the resolutions and orders
of the appellate courts and this Court. (Emphasis supplied).
o What if the judge charged of indirect contempt has retired during the pendency
of the action, can he still be held liable for indirect contempt? Yes, the retired judge
can still be held liable for indirect contempt. The rule covers government officials or
employees who retired during the pendency of the petition for contempt.
1. Contempt of court applies to all persons, whether in or out of government. Thus, it
covers government officials or employees who retired during the pendency of the
petition for contempt. Otherwise, a civil servant may strategize to avail himself of an
early retirement to escape the sanctions from a contempt citation, if he perceives that
he would be made responsible for a contumacious act. The higher interest of effective
and efficient administration of justice dictates that a petition for contempt must
proceed to its final conclusion despite the retirement of the government official or
employee, more so if it involves a former member of the bench. While there is still no
definitive ruling on this issue when the respondent charged with contempt has retired,
we apply by analogy the settled principle in administrative disciplinary cases that
separation from service does not render the case moot and academic. (Sps. Curata vs.
Philippine Ports Authority, 2009)
o Does Rule 71 apply to proceedings before quasi-judicial agencies?53 Rule 71 does
not apply to proceedings before a quasi-judicial agency if it has its own rules for contempt.
The rules on contempt of such quasi-judicial agency will apply. Rule 71 will have no
application at all.
1. But in cases where the quasi-judicial agency has no contempt rules, then Rule 71 will
apply. The action will then be instituted in the RTC of the place where the
Rule 71, Sec. 12. Contempt against quasi-judicial entities. Unless otherwise provided by law, this Rule shall apply to
contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect
to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The Regional Trial
Court of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefor.

53

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contumacious act was committed. Only when there is no law granting the quasijudicial agency contempt powers that the action shall be filed with the RTC.
2. In the case of Robosa vs. NLRC (2012), the court held that: Under Article 218 of the
Labor Code, the NLRC (and the labor arbiters) may hold any offending party in
contempt, directly or indirectly, and impose appropriate penalties in accordance with
law. The penalty for direct contempt consists of either imprisonment or fine, the
degree or amount depends on whether the contempt is against the Commission or the
labor arbiter. The Labor Code, however, requires the labor arbiter or the Commission
to deal with indirect contempt in the manner prescribed under Rule 71 of the Rules of
Court. Rule 71 of the Rules of Court does not require the labor arbiter or the NLRC to
initiate indirect contempt proceedings before the trial court. This mode is to be
observed only when there is no law granting them contempt powers. As is clear
under Article 218(d) of the Labor Code, the labor arbiter or the
Commission is empowered or has jurisdiction to hold the offending party
or parties in direct or indirect contempt. The petitioners, therefore, have not
improperly brought the indirect contempt charges against the respondents before the
NLRC. (Emphasis supplied).

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