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CIVIL PROCEDURE GRAND REVIEWER

2004 remedial law team (100% bar-ops)

he lThis reviewer was made especially for the UP 2004 bar reviewees by the Civ Pro team composed of Debbie Acosta,
Toie Biruar, JP Cabilao, Yang Quimson, Alan Tan, Gme Tomboc, Charles Veloso (head), and Tonette Veloso of Class 2006A,
finished on 25 June 2004. This reviewer was completely patterned after the 2004 Civ Pro Syllabus of our Professor, Antonio Bautista
(former Bar Examiner in Rem Law), to whom we are eternally indebted. In the grand manner tradition, this 193-page reviewer
contains a record of 55 tables (from various sources) 1 and 168 digests (by Gme and Charles) of all US and Philippine cases in the
outline. Brief notes from Feria, Bautista, class discussions, and other sources are also included. Due to time constraint, some
substantive and technical (grammar, format, & footnotes) errors may be present. This reviewer would be also be very helpful for
Baltik’s Civ Pro class. Good luck!

I. JURISDICTION

1. General concepts

Constitution, Art. VIII


Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
Section 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but
may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.
No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its members.

 Jurisdiction is the power of the court to hear or entertain an action or proceeding and to render a judgment thereon which
will bind the parties to such action or proceeding2.
 An error of judgment is one which the court may commit in the exercise of it jurisdiction. An error of jurisdiction renders an
order or judgment void or voidable3. Errors of jurisdiction are reviewable on certiorari; errors of judgment, only by appeal4.

Classes of Jurisdiction5
(1) General and Limited/Special
General jurisdiction extends to all controversies which may be brought before a court within the legal bounds of
rights and remedies.
Limited or special jurisdiction, on the other had, is confined to particular causes prescribed by the statute.
(2)Original and Appellate
Original jurisdiction is that conferred on, or inherent in, a court of first instance.
Appellate jurisdiction is the power conferred on a superior court to rehear and determine causes which have
been tried in inferior courts.
(3) Exclusive and Concurrent/Coordinate
Exclusive jurisdiction is that confined to a particular tribunal or grade of courts and possessed by it to the
exclusion of others.
Concurrent or coordinate jurisdiction is that exercised by different courts at the same time over the same
subject matter and within the same territory, and wherein litigants may, in the first instance, resort to either indifferently.
(4) Criminal and Civil
Criminal jurisdiction is the power to take cognizance of a criminal offense and to impose sentence after a lawful
trial.
Civil jurisdiction is that which exists when the matter is not of a criminal nature.
(5) Territorial Jurisdiction
It is the power of the court with reference to the territory within which it is to be exercised.
(6) Jurisdiction of the subject matter
Jurisdiction over the subject matter pertains to the classes or kinds of actions or proceedings which the court is
authorized to entertain and adjudicate
(7) Jurisdiction over the person
. Jurisdiction over the person is the power to render a personal judgment against a person and is acquired by
the voluntary appearance of a party in court and his submission to its authority, or by the coercive power of legal process
exerted over the person6.
(8) Jurisdiction over the res or property
Jurisdiction over the res or property is that obtained by a seizure of the property under legal process of the
court, whereby it is held to abide by such order as the court makes, and with respect to the person whose rights in the

1
Special acknowledgments to jan Aliling and Joane Trinidad.
2
A. Bautista, Basic Civil Procedure (2003), page 3.
3
J. Feria. Vol. 1 Civil Procedure Annotated (2001), page 130.
4
Cochingyan, Jr. v. Cloribel, 76 SCRA 361, 386 (1977); Fernando v. Vasquez, 31 SCRA 288 (1970).
5
J. Feria. Vol. 1 Civil Procedure Annotated (2001), pages 131-133.
6
Banco Español-Filipino v. Palanca, 37 Phil. 921, 927 (1918).

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property are to be affected, jurisdiction may be attained by constructive service of process, it not being necessary that
they should be brought within the reach of the process of the court or should receive actual notice 7. Jurisdiction over the
res includes jurisdiction over the personal status of a plaintiff 8.

CASES:

DECANO v. EDU (1980)


Decano was given temporary appointment at the Dagupan City office by Public Works Usec. Later, Edu (Land
Commissioner, who holds office in Manila) removed him. He filed for mandamus and injunction with CFI Pangasinan.
Issue: WON CFI of Pangasinan has jurisdiction over the petition for mandamus and injunction although the official station of the
respondent, whose official actuation (terminating petitioner from job) is assailed, is in Quezon City, which is outside the jurisdictional
district of the said court. Yes.
Held: A CFI has no jurisdiction to require or control the execution of an act committed beyond the limits of its territorial jurisdiction.
But the ,mandamus and injunction are merely collateral remedies to the main relief sought – to enjoin the implementation of the
termination order. Though the order was issued by Edu, it was to be implemented in Dagupan by subordinate officer and respondent
Acting Registrar. The termination was fait accompli, the injunction must be taken only to restrain the implementation of order by his
co-respondent whose official station at Dagupan is within the territorial boundaries of the trial court’s jurisdictional district. Edu was
joined not for injunction purposes but mainly for testing the legality of his dismissal order.

TIJAM v. SIBONGHANOY (1968)


Tijam sued Sibonghanoy and its surety in CFI Cebu for 1,908. One month before, Judiciary Act of 1948 was passed, giving
exclusive original jurisdiction to inferior courts if value does not exceed 2000. However, this ground was raised in MTD only after trial
and only after surety had raised (and were rebuffed on) other grounds – 15 years after the action commenced.
Held: Jurisdiction over the subject matter is conferred by law and as the lack of it affects the very authority of the court to take
cognizance of the case, the objection may be raised at any stage of the proceedings. However, a party may be barred by laches
from invoking this plea for the first time on appeal for the purpose of annulling everything done. From the time the surety became a
quasi-party, it could have raised the question of lack of jurisdiction of the CFI Cebu. It failed to do so. Instead, at several stages of
the proceedings in the CFI and in the CA, it invoked the jurisdiction of said courts to obtain affirmative relief and merits. It was only
after an adverse decision was rendered by the Court of Appeals that it finally woke up to raise the question of jurisdiction. Were we
to sanction such conduct, we would in effect be declaring as useless all the proceedings had.

NATIONAL STEEL CORP v. CA (1999)


NSC owns100 shares of stock, registered before in Jacinto’s name. Jacinto filed for recovery, but failed to pay the correct
docket fees. NSC alleges lack of jurisdiction.
Held: Action is to recover prop, not specific performance. Docket fee should be based on value of prop and damages being claimed,
exclusive of interest. Although payment of docket fees is jurisdictional requirement, trial court may allow plaintiff to pay
within a reasonable time before the expiration of the applicable prescriptive or reglementary period. NSC filed in 1990 a mtd but did
not raise the issue of jurisdiction. Instead, it based its motion on prescription. Upon the denial of the trial court of the mtd, it filed an
answer, submitted its pre-trial brief, and participated in the proceedings before the trial court. It was only in 1993, more than 3 years
after filing its mtd that NSC again filed a mtd on the ground of lack of jurisdiction. Clearly, the petitioner is estopped from raising this
issue. Indeed, while the lack of jurisdiction of a court may be raised at any stage of an action, nevertheless, the party raising such
question may be estopped if he has actively taken part in the very proceedings in which he questions and he only objects to the
court’s jurisdiction because the judgment or the order subsequently rendered is adverse to him.

CHUNG FU INDUSTRIES v. CA (1992)


Roblecor, contractor, failed to finish Chung Fu’s factory. They agreed to compulsory arbitration and that arbitrator’s decision
is final and unappealable, without any further judicial recourse.
Held: Whatever be the case, such recourse to an extrajudicial means of settlement is not intended to completely deprive the courts
of jurisdiction. The doctrine before was that a clause in a contract providing that all matters in dispute between the parties shall be
referred to arbitrators and to them alone is contrary to public policy and cannot oust the courts of jurisdiction. The issue is squarely
met by Article 2044 of the Civil Code: any stipulation that the arbitrator’s award or decision shall be final is valid, without prejudice to
Articles 2038, 2039, and 2040. When the courts refuse to review an arbitration award, the proper remedy is certiorari under Rule 65.
Even decisions of administrative agencies which are declared final by law are not exempt from judicial review. Since voluntary
arbitrators act in a quasi-judicial capacity, their decisions should not be beyond the scope of the power of judicial review of the SC.
 Case remanded for further hearing bec Arbit failed to apply provisions of the ©.

LACKS v. LACKS (U.S. 1976)


Husband got divorce from wife. 4 yrs after judgment became final, wife said SC without subj matter jurisdiction bec husband
did not meet residence requirement to get divorce in that State.
Held:
Residency requirements go only to the substance of the divorce cause of action, not to the competence of the court to
adjudicate the case. Statement that the court lacks jurisdiction may mean in reality that elements of cause of action are absent or

7
21 C.J.S. Courts §84.
8
Rule 4, §3 and Rule 14, §15.

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that party has no standing to file action. Absence of competence to entertain an action deprives court of subj matter jurisdiction;
absence of power to reach the merits does not.

2. Subject-matter jurisdiction/ Jurisdiction of the different levels of courts in civil cases

 Jurisdiction over the subject matter is conferred by law9.


 There are four levels of courts in the Philippines: the Supreme Court, the Court of Appeals, Regional Trial Courts (RTCs),
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts. The MTCs are legislative creations and
their respective jurisdiction is defined by statute.
 As a rule, neither waiver nor estoppel shall apply to confer jurisdiction upon a court barring highly meritorious and
exceptional circumstance. One such exception was enunciated in Tijam v. Sibonghanoy where it was held that “after
voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question
the jurisdiction or power of the court.”10
 Parties to an action cannot stipulate on the matter as to vest or oust jurisdiction in or from the court. They may stipulate in
a contract that they will enter into an arbitration process in case a dispute arises but such recourse to extrajudicial
settlement cannot oust courts of jurisdiction and the right to review11.
 General rule: subject-matter jurisdiction of the court is determined by the allegations in the complaint. Allegations in an
answer cannot oust the court of jurisdiction12.

a) SUPREME COURT

Const., Art VIII.


Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.

Const., art. VIII


Section 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for
certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments
and orders of lower courts in:

(a) All cases involving the constitutionality or validity of any treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.

(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not
exceed six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same
grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the Supreme Court.
(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.

ORIGINAL JURISDICTION
(1) Cases affecting ambassadors, other public ministers and consuls, and
(2) Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus13.

A. Original and Exclusive

9
21 C.J.S. Courts §84
10
J. Feria. Vol. 1 Civil Procedure Annotated (2001), page 133.
11
Chung Fu Industries (Phils.), Inc. v. CA, 206 SCRA 545 (1992).
12
Sta. Clara Homeowners’ Assn. V. Gaston, 198 SCRA 73 (2002).
13
Phil. Const., art. IX, § 5(1).

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(1) Petitions for the issuance of writs of certiorari, prohibition and mandamus against the following:
(a) Court of Appeals.14
(b) Commission on Elections.15
(c) Commission on Audit. 16
(d) Sandiganbayan. 17
 These writs may be issued against a court only by another court superior in rank to the former 18.

B. Original and Concurrent with the Court of Appeals


(1) Petitions for the issuance of writs of certiorari, prohibition and mandamus against the following:
(a) National Labor Relations Commission.19
 However, the petitions should be filed with the Court of Appeals; otherwise, they shall be dismissed 20.
(b) Civil Service Commission.21
(c) Central Board of Assessment Appeals.22
(d) Court of Tax Appeals and Quasi-Judicial Agencies. 23
 The petitions should be filed with the Court of Appeals24.
(e) Regional Trial Courts and Lower Courts.25

C. Original and Concurrent with the Court of Appeals and Regional Trial Court
(1) Petitions for habeas corpus and quo warranto. 26
(2) Petitions for the issuance of writs of certiorari, prohibition and mandamus against lower courts or bodies.27
 Where the issuance of an extraordinary writ is also within the competence of the CA or an RTC, it is either of these courts
that the specific action for the writ’s procurement must be presented. Courts and lawyers must strictly observe this 28.

D. Original and Concurrent with the Regional Trial Court


(1) Actions affecting ambassadors, other public ministers and consuls.29
(2) Actions brought to prevent and restrain violations of law concerning monopolies and combinations in restraint of trade.
30

APPELLATE JURISDICTION
(1) The Supreme Court shall have the power to review, revise, reverse, modify or affirm on appeal or certiorari as the law
or the Rules of Court may provide, final judgments and orders of lower courts in:

(a) All cases involving the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.31
(f) Petitions for naturalization or denaturalization.32
(g) All decisions of the Auditor General, if the appellant is a private person or entity. 33

14
Judiciary Act of 1948, RA No. 296, § 17 (1948).
15
Phil. Const., art IX, §7.
16
Id.
17
Pres. Decree No. 1606, as amended (1978).
18
Pineda v. Lantin, 6 SCRA 757 (1962) ; Poblete Construction Co. v Social Security Commission, 10 SCRA 1 (1964).
19
BP Blg. 129, § 9, as amended by RA No. 7902 (1995); see St. Martin Funeral Homes v. NLRC, 295 SCRA 494 (1998).
20
In Re: Dismissal of Special Civil Actions in NLRC Cases, Supreme Court Administrative Matter 99-2-01 (1999).
21
RA 7902 (1995).
22
Pres. Decree No. 464; BP Blg. 129, §9 as amended by RA No. 7902.
23
BP Blg. 129, § 9, as amended by RA No. 7902 (1995);
24
Rule 65, § 4.
25
BP Blg. 129, § 9(1)
26
Id. at § 21(1).
27
Id.
28
Vergara Sr. v. Suelto, 165 SCRA 753 (1987).
29
Phil. Const., art, VIII, § 5(1); BP Blg. 129, §21(2).
30
Judiciary Act of 1948, § 17.
31
Phil. Const., art. VIII, § 5(2).
32
Judiciary Act of 1948, § 17.
33
Id.

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(h) Final judgments or orders of the Commission on Elections.34

b) COURT OF APPEALS

BP 129, Sec 9. The Court of Appeals shall exercise:


1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, whether or not in
aid of its appellate jurisdiction;
2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and
3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts
and quasi-judicial agencies, instrumentalities, boards or commissions, including the SEC, Social Security Commission, the ECC
ORIGINAL JURISDICTION
and the CSC, except those falling within the appellate jurisdiction of the SC in accordance with the Constitution, the Labor Code
A. Original and Exclusive
of the Philippines under PD 442, as amended, the provisions of this Act, and of subparagraph 4 of the 4 th 35par of Sec 17 of the
(1) Actions for annulment of judgments of RTCs on the grounds of extrinsic fraud and lack of jurisdiction.
Judiciary Act of 1948.
The CA shall have the power to try cases and conduct hearings, receive evidence, and perform any and all acts necessary to
B. Original and Concurrent with the Supreme Court
resolve factual issues raised in issues falling within its original jurisdiction, including the power to grant and conduct new trials or
(1) Petitions for the issuance of writs of certiorari, prohibition and mandamus against the following:
further proceedings. Trials or hearings in the CA must be36continuous and must be completed within 3 months, unless extended
(a) National Labor Relations Commission.
by the Chief Justice.
(b) Civil Service Commission.37
(c) Central Board of Assessment Appeals.38
(d) Court of Tax Appeals and Quasi-Judicial Agencies. 39
(e) Regional Trial Courts and Lower Courts.40

C. Original and Concurrent with the Supreme Court and the Regional Trial Court
(1) Petitions for habeas corpus and quo warranto. 41
(2) Petitions for the issuance of writs of certiorari, prohibition and mandamus against lower courts or bodies.42
 Under Section 30 of the Judiciary Act of 1948, the CA could only issue such writs in aid of its appellate jurisdiction. The
supervisory power of the CA to issue these writs must co-exist with its appellate jurisdiction to review, the final decisions of
the lower court, in order to have a complete supervision over the acts of the latter 43. Now, under BP Blg. 129, the CA may
issue these writs and auxiliary processes, whether or not in aid of its appellate jurisdiction 44.

APPELLATE JURISDICTION
A. Exclusive Appellate Jurisdiction
(1) Ordinary appeal by Notice of Appeal or Record on Appeal
(a) Appeals from the judgments, decisions or final orders of the RTC in the exercise of its original jurisdiction, 45
except in all cases where only questions of law are involved, which are appealable to the SC.
(b) Appeals from the RTC on constitutional, tax and jurisdictional questions which involve questions of fact
and should be appealed first to the CA.46
(c) Appeals from decisions and final orders of the Family Courts. 47
(2) Appeal by Petition for Review
An appeal may be taken to the CA whether the appeal involves questions of fact, mixed questions of fact and
law, or questions of law, in the following cases:
Regular
(a) Appeals in cases decided by the RTC in the exercise of its appellate jurisdiction.48
Special
(a) Appeals from the Civil Service Commission.49

34
Id.
35
Rule 47; BP Blg. 129, § 9(2).
36
BP Blg. 129, § 9, as amended by RA No. 7902 (1995); see St. Martin Funeral Homes v. NLRC, 295 SCRA 494 (1998).
37
RA 7902 (1995).
38
Pres. Decree No. 464; BP Blg. 129, §9 as amended by RA No. 7902.
39
BP Blg. 129, § 9, as amended by RA No. 7902 (1995);
40
BP Blg. 129, § 9(1)
41
Id. at § 21(1).
42
Id.
43
Breslin v. Luzon Stevedoring Co., 84 Phil. 618 (1949).
44
J. Feria. Vol. 1 Civil Procedure Annotated (2001), page 155.
45
Rule 41, § 3 (a).
46
Judiciary Act of 1948, § 17 as amended by RA Nos. 2618 and 5440; BP Blg. 129, § 9(3).
47
RA No. 8369, § 14.
48
Rule 41, § 2(b); Rule 122, §3(b); BP Blg. 129, §22.
49
BP Blg. 129, §9 as amended by RA No. 7902 and Rule 43.

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(b) Judgments or final orders of the Court of Tax Appeals, and


(c) Awards, judgments, final orders or resolutions authorized by any of the following quasi-judicial agencies in
the exercise of their quasi-judicial functions:
(i) Central Board of Assessment Appeals
(ii) Securities and Exchange Commission
(iii) Office of the President
(iv) Land Registration Authority
(v) Social Security Commission
(vi) Civil Aeronautics Board
(vii) Bureau of Patents, Trademarks and Technology Transfer (Intellectual Property Office)
(viii) National Electrification Administration
(ix) Energy Regulatory Board
(x) National Telecommunications Commission
(xi) Department of Agrarian Reform under RA No. 6657
(xii) Government Service Insurance System
(xiii) Employees Compensation Commission
(xiv) Agricultural Inventions Board
(xv) Insurance Commission
(xvi) Board of Investments
(xvii) Philippine Atomic Energy Commission
(xviii) Construction Industry Arbitration Commission
(xix) Voluntary Arbitrators authorized by law50
(xx) Ombudsman, in administrative disciplinary cases51
(xxi) National Commission on Indigenous Peoples.52

c) REGIONAL TRIAL COURTS


(1)
BP Blg. 129. Sec. 18. Authority to define territory appurtenant to each branch. - The Supreme Court shall define the territory over
which a branch of the Regional Trial Court shall exercise its authority. The territory thus defined shall be deemed to be the
territorial area of the branch concerned for purposes of determining the venue of all suits, proceedings or actions, whether civil or
criminal, as well as determining the Metropolitan Trial Court, Municipal Trial Courts, and Municipal Circuit Trial Courts over the said
branch may exercise appellate jurisdiction. The power herein granted shall be exercised with a view to making the courts readily
accessible to the people of the different parts of the region and making the attendance of litigants and witnesses as inexpensive as
possible.
(2) Family Courts
RA 8369- FAMILY COURTS ACT OF 1997
Section 3. Establishment of Family Courts. — There shall be established a Family Court in every province and city in the country.
In case where the city is the capital of the province, the Family Court shall be established in the municipality which has the highest
population.

Section 5. Jurisdiction of Family Courts- The Family Courts shall have exclusive jurisdiction to hear and decide the ff cases:
a) Criminal cases where 1 or more of the accused is below 18 yrs of age but not less than 9 yrs of age, or where one or more
of the victims is a minor at the time of the commission of the offense. Provided, That if the minor is found guilty, the court
shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence, however,
shall be suspended without need of application pursuant to PD 603, otherwise known as the Child and Youth Welfare Code.
b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter
c) Petitions for adoption of children and the revocation thereof
d) Complaints for annulment of marriage, declaration of nullity of marriage, and those relating to marital status and property
relations of husband and wife or those living together under diff status and agreements, and petitions for dissolution of CPG
e) Petitions for support and/or acknowledgment
f) Summary judicial proceedings brought under the provisions of EO 209, otherwise known as the Family Code of the
Philippines
g) Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or
involuntary commitment of children, the suspension, termination or restoration of parental authority and other cases
cognizable under PD 603, EO 56 (series of 1986), and other related laws
h) Petitions for the constitution of the family home
i) Cases against minors cognizable under the Dangerous Drugs Act, as amended
j) Violations of RA 7610, otherwise known as the Special Protection of Children against Child Abuse, Exploitation and
Discrimination Act, as amended by RA 7633
k) Cases of domestic violence against
50
BP Blg. 129 as amended by RA No. 7902; Rule 43.
51
Fabian v. Desierto, et al., 295 SCRA 470 (1998).
52
The Indigenous Peoples Rights Act of 1997, RA No. 8371, § 67(1997).

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1) Women — which are acts of gender based violence that results, or are likely to result in physical, sexual or psychological
harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which
violate a woman's personhood, integrity and freedom of movement; and
2) Children — which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination
and all other conditions prejudicial to their development.
If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings and the
corresponding penalties.

3)
Administrative Circular 09-94, June 14, 1994 – The inclusion of the term “damages of whatever kind” in determining the
jurisdictional amount under Section 19(8) and Section 33 (1) of BP 129, as amended by RA 7691, applies to cases
when the damages are merely incidental to or a consequence of the main cause of action. MHowever, in cases
where the claim for damages is the main case of action, or one of the causes of action, the amount of such claim
shall be considered in determining the jurisdiction of the court.

(4)
SC Res. A.M. No. 01-2-04 (Interim Rules of Procedure for Intra-Corporate Controversies under RA 8799)
Section 5. Venue- All actions covered by these Rules shall be commenced and tried in the RTC which has jurisdiction over the
principal ofc of the corp, partnership, or assoc concerned. Where the principal ofc of the corp, partnership or assoc is registered in
the SEC as Metro Mla, the action must be filed in the city or municipality where the head ofc is located.

ORIGINAL JURISDICTION
A. Original and Exclusive
(1) Civil actions in which the subject of the litigation is incapable of pecuniary
estimation53.

 An action for expropriation is incapable of pecuniary estimation and falls within the jurisdiction of the RTC, regardless
of the value of the subject property.54
 In foreclosure of mortgage, the court of appropriate jurisdiction depends upon both the value of the mortgaged
property, real or personal, and the amount of the mortgage debt being recovered. If one amount is within the
jurisdiction of the RTC and the other is within that of the inferior court, then the RTC has jurisdiction. 55
 An action for the annulment of a Deed of Declaration of Heirs and for partition of a parcel of land with an assessed
value of P5,000.00 is not capable of pecuniary estimation. The partition of land is just incidental to the main action for
annulment.56
 Other examples: actions for specific performance, support, or foreclosure of mortgage 57 or annulment of mortgage;
also actions involving the validity of a mortgage, annulling a deed of sale or conveyance and to recover the price
paid and for rescission, which is a counterpart of specific performance.58

(2) Civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value
of the property is involved exceeds Twenty Thousand pesos (P20,000.00) or for civil actions in Metro Manila, where
such value exceeds Fifty Thousand pesos (P50,000.00) except actions for forcible entry into and unlawful detainer
of lands or of buildings.59

(3) Actions in admiralty and maritime jurisdiction where the demand or claim exceeds Two Hundred Thousand pesos
(P200,000.00) or in Metro Manila, where such claim exceeds Four Hundred Thousand pesos (P400,000.00).60

(4) Matters of probate, both testate and intestate, where the gross value of the estate exceeds Two Hundred Thousand
pesos (P200,000.00) or, in Metro Manila, where such gross value exceeds Four Hundred Thousand pesos
(P400,000.00).61

53
BP Blg. 129, § 19(1).
54
Barangay San Roque v. Heirs of Pastor, GR No. 138896, June 20, 2000.
55
J. Feria. Vol. 1 Civil Procedure Annotated (2001), page 167; see Seño v. Pestolante and Barimbao, 103 Phil. 414 (1958) and The Good Development Corporation v. Tutaan,
73 SCRA 189 (1989).
56
Russell v. Vestil, 304 SCRA 738 (1999).
57
Amorganda v. CA, 166 SCRA 203 (1988); De Jesus et. al., v. Garcia et. al., 19 SCRA 554 (1967).
58
Russell v. Vestil, 304 SCRA 738 (1999).
59
Id., 129, § 19(2).
60
Id., 129, § 19(3); RA No. 7691. §5(1994); Office of the Court Administrator Circular No.21-99 (1999).
61
Id., 129, § 19(4).

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(5) Actions involving the contract of marriage and marital relations62.

 These are now under the jurisdiction of the Family Courts.63

(6) Cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial
functions.64

(7) Cases falling within the exclusive jurisdiction of a Juvenile and Domestic Relations Court and of the Courts of Agrarian
Relations as now provided by law.65

 Cases falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court are now under
the jurisdiction of the Family Courts.66

(8) Other cases in which the demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation
expenses, and costs or the value of the property in controversy exceeds Two Hundred Thousand pesos (P200,000.00) or
in Metro Manila, where such demand exceeds Four Hundred Thousand pesos (P400,000.00).67

 Under both Section 5 of RA No. 7691, which took effect in 1994, and Circular 21-99, the jurisdictional amount
for RTCs should be adjusted as follows: Five years after the effectivity of RA No. 7691, the amount exceeds
Two Hundred thousand pesos; and five years thereafter, the amount exceeds Three Hundred thousand pesos.
In Metro Manila, the amount shall be adjusted after five years from the effectivity of RA No. 7691 such that the
amounts exceed Four Hundred Thousand pesos.
 The term “damages of whatever kind” has been specially defined by the SC as to apply only to cases when the
damages are merely incidental to or a consequence of the main cause of action, and that therefore where the
claim for damages is the main cause of action or one of the causes of action, the amount of the claim shall be
considered in determining the jurisdiction of the court.68

(9) Actions under the Proposed Interim Rules of Procedure Governing Intra-Corporate Controversies under RA No.
879969.

B. Original and Concurrent with the Supreme Court


(1) Issuance of writs of certiorari, prohibition, mandamus, quo warranto and injunctions.

 As issued by RTCs, these writs may only be enforced within their respective regions. 70

(2) Actions affecting ambassadors, other public ministers and consuls.71


(3) Actions brought to prevent and restrain violations of law concerning monopolies and combinations in restraint of trade.
72

C. Original and Concurrent with the Court of Appeals


(1) Issuance of writs of certiorari, prohibition, mandamus, quo warranto and injunctions.

D. Original and Concurrent with the Insurance Commission


(1) Claims not exceeding One Hundred Thousand pesos (P100,000.00).73

APPELLATE JURISDICTION

The RTC shall exercise appellate jurisdiction over:


(1) Cases decided by the MTC, MeTC and MCTC in their respective territorial jurisdictions.74
62
Id., 129, § 19(5).
63
J. Feria. Vol. 1 Civil Procedure Annotated (2001), page 163, footnote.
64
BP Blg. 129, § 19(6).
65
Id., §19(7).
66
J. Feria. Vol. 1 Civil Procedure Annotated (2001), page 163, footnote
67
BP Blg. 129, § 19(8) as amended by RA No. 7691.
68
SC Administrative Circular No. 09-94, effective 14 June 1994.
69
SC A.M. No. 01-2-04, Rule 1, §5 and Rule 2, § 1.
70
BP Blg. 129, §21.
71
Phil. Const., art, VIII, § 5(1); BP Blg. 129, §21(2).
72
A. Bautista, Basic Civil Procedure (2003), page 7; Judiciary Act of 1948, § 17.
73
The Insurance Code, PD No. 612, §416 (1974).
74
BP Blg. 129, § 22.

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SPECIAL JURISDICTION

 The SC may designate certain branches of the RTC to handle exclusively criminal cases, juvenile and domestic relations
cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of quasi-judicial bodies and
agencies, and/or such other special cases as the SC may determine in the interest of a speedy and efficient
administration of justice.75

d) METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS

 The MTCs are the first-level trial courts in this country. They have therefore no appellate jurisdiction.

ORIGINAL JURISDICTION
A. Original and Exclusive
(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not
exceed Two hundred thousand pesos (P200,000.00) or, in Metro Manila where such personal property, estate, or amount
of the demand does not exceed Four hundred thousand pesos (P400,000.00), exclusive of interest, damages of
whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged.

Provided, That interest, damages of whatever kind, attorney's fees, litigation expenses, and costs shall be
included in the determination of the filing fees: Provided, further, That where there are several claims or causes of actions
between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of
the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different
transactions. 76

(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases,
the defendant raises the questions 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.77

(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest
therein where the assessed value of the property or interest therein does not exceed Two Hundred Thousand pesos
(P200,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Four Hundred Thousand
pesos (P400,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs:
Provided, That in cases of land not declared for taxation purposes, the value of such property shall be
determined by the assessed value of the adjacent lots.78

(4) Exclusive original jurisdiction over admiralty and maritime cases where the demand or claim does not exceed Two
Hundred Thousand Pesos (P200,000.00).79

(5) Exclusive original jurisdiction in cases of inclusion and exclusion of voters. 80

 In joinder of claims or causes of action by one party against another, the totality of the claims for money shall be the test
of the jurisdiction. However, in joinder of parties plaintiff or defendant, the conditions on permissive joinder of parties, the
conditions on permissive joinder of parties shall apply. 81

DELEGATED JURISDICTION
(1) The MTCs may be assigned by the SC to hear and determine the cadastral or land registration cases covering lots
where there is no controversy or opposition, or contested lots where the value of which does not exceed One Hundred
Thousand pesos (P100,000.00), such value to be ascertained by the affidavit of the claimant or by agreement of the
respective claimants if there are more than one, or from the corresponding tax declaration of the real property. Their
decisions in these cases shall be appealable in the same manner as decisions of the Regional Trial Courts. 82

75
Id., § 23.
76
BP Blg. 129, § 33(1).
77
Id., § 33(2).
78
Id., § 33(3).
79
J. Feria. Vol. 1 Civil Procedure Annotated (2001), page 171.
80
Omnibus Election Code of the Philippines, BP Blg. 881, §138(1985).
81
Rule 3, §6.
82
BP Blg. 129, § 34 as amended by RA No. 7691, §4.

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SPECIAL JURISDICTION
In the absence of all the RTC judges in a province or city, any MTC, MeTC or MCTC Judge may hear and decide petitions
for a writ of habeas corpus or applications for bail in criminal cases in the province or city where the absent RTC judges sit. 83

CASES:
Reyes v. Sta. Maria (1979)
Defendants (Ds) refused to vacate land they occupy by the mere tolerance of Plaintiffs (Ps). Ps file action to quiet title. D
filed mtd on the ground that the CFI has no jurisdiction over the suit which is actually one for ejectment and unlawful detainer.
Held:
Refusal of Ds to vacate was due to their adverse claim of ownership, on their counter-allegation that they bought the land
from PA; therefore the action is clearly one for recovery of their right to possess the property and to be declared owners thereof. Ps
correctly filed accion publiciana before the CFI.

Ortigas and Co v. Herrera (1983)


The action involved in this case is one for specific performance and not for a sum of money and therefore incapable of
pecuniary estimation because what private respondent seeks is the performance of petitioner’s obligation under a written contract to
make a refund but under certain specific conditions still to be proven or established. Factual allegations of complaint seeking
performance of an obligation under a written contract which is a matter clearly incapable of pecuniary estimation prevail over
designation in the complaint as one for a sum of money and damages.

Ortigas and Co. v. CA (1981)


An action for unlawful detainer, which is a summary proceeding to wrest possession from one who has no right thereto, is
applicable only when the issue is that of possession; but rights of the property created by the agreements, especially the relative
rights and obligations of the parties to the improvements are directly involved and the Municipal Court did not have jurisdiction as
the same involved rights over real property, other than mere possession. The complaint for unlawful detainer filed before the MTC
sought not only the ejectment of the defendant from the subject lot, but likewise prayed that the residential building constructed by
him on the same lot be declared forfeited in P’s favor. Clearly, the issues raised did not only involve possession of the lot but also
the rights and obligations of the parties to the residential building, which is a real property (Art. 415 CC).

Nera v. Vacante (1961)


A violation by a party of any of the stipulations of a contract to sell real property would entitle the other party to resolve or rescind it.
An allegation of such violation in a detainer suit may be proved by competent evidence. And if proved, a justice of the peace might
make a finding to that effect, but it certainly cannot declare and hold that a contract is resolved or rescinded. It is beyond its power to
do so. And as the illegality of the possession of realty is premised upon the resolution of the contract, it follows that an allegation and
proof of such violation , a condition precedent to such resolution or rescission, cannot be taken cognizance of by a justice of the
peace court.

Specialized courts/tribunals/agencies

INSURANCE COMMISSIONER

 Claims involving any loss, damage or liability for which an insurer may be liable under any kind of policy or contract, or for
which such insurer may be liable under a contract of suretyship, or for which a reinsurer may be sued…or for which a
mutual benefit association may be liable.
 Where the amount of such loss, damage or liability, exclusive of interest, cost and attorney’s fees, does not exceed in any
single claim One Hundred Thousand pesos (P100,000.00) .
 Jurisdiction acquired over the parties in accordance and pursuant to the Rules of Court.
 Authority to adjudicate shall be concurrent with that of the civil courts, but the filing of a complaint with the Commissioner
shall preclude the civil courts form taking cognizance of a suit involving the same subject matter.
 May be appealed to Intermediate Appellate Court (CA now).
 In case of contumacy or refusal to obey subpoena issued to any person, the Commissioner may invoke the aid of any
RTC within the jurisdiction of which such proceeding is carried on to issue an order or to punish for contempt of RTC if still
disobeyed.84

Katarungang Pambarangay
SC Administrative Circular No. 14-93 (Guidelines on Katarungang Pambarangay Conciliation Procedure)- pursuant to The
Revised Katarungang Pambarangay Law under R.A. 7160, otherwise known as the Local Government Code of 1991, effective on
January 1, 1992, and which repealed P.D. 1508,

I. All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang Pambarangay Law (formerly P.D.
1508, repealed and now replaced by Secs. 399-422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160,
otherwise known as the Local Government Code of 1991), and prior recourse thereto is a pre-condition before filing a complaint in

83
Id., at §35.
84
Insurance Code of the Phils., PD No. 612. § 416.

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court or any government offices, except in the following disputes:


1. Where one party is the government, or any subdivision or instrumentality thereof;
2. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;
3. Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to
submit their difference to amicable settlement by an appropriate Lupon;
4. Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay
conciliation proceedings either as complainants or respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);
5. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay
units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate
Lupon;
6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one (1) year or a fine over five thousand
pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the
following:
a. Criminal cases where accused is under police custody or detention (See Sec. 412 (b)(1), Revised Katarungang
Pambarangay Law);
b. Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally
deprived of his liberty or one acting in his behalf;
c. Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and
support during the pendency of the action; and
d. Actions which may be barred by the Statute of Limitations.
9. Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary
of Justice;
10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Secs. 46 & 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-employee relations (Montoya vs. Escayo, et al., 171 SCRA 442; Art.
226, Labor Code, as amended, which grants original and exclusive jurisdiction over conciliation and mediation of disputes,
grievances or problems to certain offices of the Department of Labor and Employment);
12. Actions to annul judgment upon a compromise, which may be filed directly in court (See Sanchez vs. Tupaz, 158 SCRA
459).

II. Under the provisions of R.A. 7160 on Katarungang Pambarangay conciliation, as implemented by the Katarungang
Pambarangay Rules and Regulations promulgated by the Secretary of Justice, the certification for filing a complaint in court or
any government office shall be issued by Barangay authorities only upon compliance with the following requirements:
1. Issued by the Lupon Secretary and attested by the Lupon Chairman (Punong Barangay), certifying that a confrontation of
the parties has taken place and that a conciliation or settlement has been reached, but the same has been subsequently
repudiated (Sec. 412, Revised Katarungang Pambarangay Law; Sec. 2[h], Rule III, Katarungang Pambarangay Rules);
2. Issued by the Pangkat Secretary and attested by the Pangkat Chairman, certifying that:
a. a confrontation of the parties took place but no conciliation/settlement has been reached (Sec. 4[f], Rule III,
Katarungang Pambarangay Rules; or
b. that no personal confrontation took place before the Pangkat through no fault of the complainant (Sec. 4[f], Rule III,
Katarungang Pambarangay Rules).
3. Issued by the Punong Barangay, as requested by the proper party on the ground of failure of settlement where the dispute
involves members of the same indigenous cultural community, which shall be settled in accordance with the customs and
traditions of that particular cultural community, or where one or more of the parties to the aforesaid dispute belong to the
minority and the parties mutually agreed to submit their dispute to the indigenous system of amicable settlement, and
there has been no settlement as certified by the datu or tribal leader or elder to the Punong Barangay of the place of
settlement (Secs. 1, 4, & 5, Rule IX, Katarungang Pambarangay Rules); and If mediation or conciliation efforts before the
Punong Barangay proved unsuccessful, there having been no agreement to arbitrate (Sec. 410 [b], Revised Rule
Katarungang Pambarangay Lay; Sec. 1, c, (1), Rule III, Katarungang Pambarangay Rules), or where the respondent fails
to appear at the mediation proceeding before the Punong Barangay (3rd par. Sec. 8, a, Rule VI, Katarungang
Pambarangay Rules), the Punong Barangay shall not cause the issuance of this stage of a certification to file action,
because it is now mandatory for him to constitute the Pangkat before whom mediation, conciliation, or arbitration
proceedings shall be held.

CASES:
GONZALES v. CA (1987)
Gonzales wants his lessee to vacate bec his married children need the premises. He sued for ejectment in City Court of
Caloocan. CA dismissed for lack of jurisdiction bec failed to undergo confrontation at brgy level.
Held:
Conciliation under PD 150885 is not jurisdictional. Jurisdiction conferred by BP 129 and Judiciary Act of 1948. PD 1508
does not vest jurisdiction in lupong tagapayapa. Jurisdiction means the power to try and decide a case. Lupon does not decide
cases, but only has conciliation functions. While non-compliance with condition precedent could affect sufficiency of the complaint

85
PD 1508- predecessor of Local Govt Code

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and make it vulnerable to MTD for lack of cause of action or prematurity, it will not prevent competent court from exercising its power
of adjudication before the case, where defendants failed to object.
 Defendant took part in trial= waiver of objection to jurisdiction

AGBAYANI v BELEN (1986)


Quieting case dismissed by CFI on defendant’s motion that there was no conciliation yet before the Lupon Tagapayapa.
Held:
Generally, disputes involving parties actually residing in the same city or municipality, or in adjoining brgys of diff cities or
municipalities, should first be brought before the approp Brgy Lupon. Proceeding before Lupon is precondition to filing of any action
or proceeding, and complaint may be dismissed on motion of any interested party for failure to state a cause of action.
Venue for conciliation:
1. where parties reside
2. where any respondent reside, if parties live in diff brgys in same city or municipality
3. where real prop or any part is situated, if dispute about real prop or interest therein
Since parties reside in diff municipalities or cities and their barangays do not adjoin each other, Lupon has no jurisdiction,
even if subj is real prop.

II. VENUE
 Venue determines which of several courts in the Philippines having jurisdiction over it shall take cognizance of it. It would
depend on the nature of the action, whether real or personal.
 Real actions are those affecting title to or possession of real property. These include partition of, or foreclosure of
mortgage on, real property. All other actions are personal.86
 Personal actions may be filed in alternative places, at the election of the plaintiff:
(1) where the plaintiff resides or any of the principal plaintiffs resides; or
(2) where the defendant or any of the principal defendant resides; or
(3) in the case of a non-resident, where he may be found.87
 Unlike subject-matter jurisdiction, venue is waivable and may be the subject of the parties’ stipulation. Parties may
stipulate in the contract that any action arising therefrom including unlawful detainer should be filed exclusively in a place
other than where the property is located.88
 The Supreme Court is empowered by the Constitution to order a change of venue to avoid a miscarriage of justice. 89
 However, where the venue stipulation appears to be too one-sided as to amount to a “contract of adhesion,” the consent
of the parties thereto may well be vitiated and the venue stipulation will not be given any effect.90
(1)

Rules of Court, RULE 4


Sec. 1. Venue of real actions.
Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court
which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated.
Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein
the real property involved, or a portion thereof, is situated.
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.
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.
Sec. 4. When Rule not applicable.
This Rule shall not apply:
(a) In those cases where a specific rule or law provides otherwise; or
Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof.

(2)

SEC. 18, BP 129


Authority to define territory appurtenant to each branch. - The Supreme Court shall define the territory over which a branch of the
Regional Trial Court shall exercise its authority. The territory thus defined shall be deemed to be the territorial area of the branch
concerned for purposes of determining the venue of all suits, proceedings or actions, whether civil or criminal, as well as
determining the Metropolitan Trial Court, Municipal Trial Courts, and Municipal Circuit Trial Courts over the said branch may
86
exercise
J. Feria. Vol.appellate jurisdiction.
1 Civil Procedure AnnotatedThe power
(2001), herein granted shall be exercised with a view to making the courts readily accessible to
page 258.
87 the people of the different parts of the region and making the attendance of litigants and witnesses as inexpensive as possible.
Rule 4, §2.
88
Rule 4, §4(b); Villanueva v. Mosqueda, 115 SCRA 904 (1982).
89
Phil. Const., Art. VIII, Sec. 5(4).
90
Sweet Lines v. Teves, 83 SCRA 361 (1978).

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(3)
1. ART. VIII, SEC. 5 (4) (1987 Constitution)
The Supreme Court shall have the following powers:
Order a change of venue or place of trial to avoid a miscarriage of justice.

CASES:

CLARIDADES V MERCADER (1966)


Claridades sued Mercader before the CFI Bulacan (where Claridades the plaintiff lives) for dissolution o f partnership,
consisting of a fishpond located in Marinduque.
Held:
The fact that plaintiff prays for the sale of the asset of the partnership, including the fishpond in question, did not change
the nature or character of the action as personal, such sale being merely a necessary incident of the liquidation of the partnership,
which should precede and or is part of its process of dissolution.

SWEET LINES INC v TEVES (1978)


Passengers sued Sweet Lines in CFI Misamis Oriental for breach of © of carriage. However, ticket stipulated that all
actions should be filed in Cebu.
Held: Contracts of adhesion call for greater strictness and vigilance on the part of the courts of justice with a view to protecting the
weaker party from abuses and imposition, and to prevent their becoming traps for the unwary. Art. 24 CC, “[i]n all contractual,
property, or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence,
mental weakness, tender age and other handicap, the courts must be vigilant for his protection. Condition No. 14 must be held as
void and unenforceable for being contrary to public policy – to make courts accessible to all who may have need of their service: (1)
under circumstances obtaining in the inter-island shipping industry, it is not just and fair to bind passengers to the terms of the
conditions printed at the back of the passage tickets, on which condition 14 is printed in fine letters, (2) condition 14 subverts the
public policy on transfer of venue of proceedings of this nature since the same will prejudice rights and interests of innumerable
passengers in different parts of the country, who will have to file suits in Cebu City. Although venue may be transferred by
agreement in writing (Rule 4 S4), such an agreement will not be held valid where it practically negates the action of the claimants,
such as the private respondents herein. The philosophy underlying the provisions on transfer of venue of actions is the convenience
of the plaintiffs as well as his witnesses and to promote the ends of justice.

VILLANUEVA v MOSQUEDA (1982)


Lessor resides in Pampanga. Lessee is renting in lessor’s house in Manila. If someone violates the ©, they stipulated that
one could sue the other in their respective residences. Lessor sued lessee for ejectment in MTC Pampanga.
Held: Rules of Court: FE and UD cases regarding real prop shall be brought in the municipality or city in which the subj matter
thereof is situated. This does not refer to the jurisdiction of the court over the subj matter, but only to the place where the ejectment
suit may be brought. By written agreement of the parties the venue of an action may be changed or transferred from one province to
another.

EASTERN ASSURANCE & SURETY CORP v CUI (1981)


Transunion sued Eastern Assurance in CFI Manila. Eastern then filed a 3rd party complaint v Pan, its indemnitor.
Indemnity agreement however stipulated that all actions to be brought in QC.
Held: Paragraph 7 of the Indemnity Agreement was imposed on the Pan spouses by the petitioner surety company for its benefit
and convenience and therefore the latter could waive the provision by filing its complaint not in QC but in Manila. Granting that Par 7
imposed a reciprocal obligation, it has to be remembered that at 3 rd party complaint is but an ancillary to the main action and is a
procedural device to avoid multiplicity of suits. Thus, a tpc has to yield to the jurisdiction and venue of the main action. A contrary
rule would result in split jurisdiction which is not favored, and in multiplicity of suits.
 Provision on venue was inserted for Eastern’s benefit. Therefore, he could waive it by filing somewhere
else.

DAVAO ABACA PLANTATION v DOLE PHILS (2000)


Lease agreement bet Davao Abaca (with office in Manila) and Dole (with office in Makati). Davao sued Dole before RTC
Manila to comply with the lease agreement.
Held:
Jurisdiction of court over subj matter is determined upon allegations made in the complaint. Breach of © is cause of action
either for specific performance or rescission of ©. => personal action, where venue can be where any plaintiff or defendant resides.
 If principal relief affects title or possession of realty or interest therein, it is real. If not, personal.

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Table 1: Venue v. Jurisdiction91


VENUE JURISDICTION
1. Place where the action is instituted 1. Power of the court to hear and decide a case
2. May be waived 2. Jurisdiction over the subject matter and over the nature of the
action is conferred by law and cannot be waived
3. Procedural 3. Substantive
4. May be changed by the written agreement of the parties 4. Cannot be the subject of the agreement of the parties

Uniform rule on venue in RTC and MTC92

1. VENUE OF REAL ACTIONS – in the proper court which has jurisdiction over the area wherein real property involved or a portion
thereof is situated.

2. VENUE FOR FORCIBLE ENTRY AND DETAINER ACTIONS – in the MTC of the municipality or city wherein the real property or a
portion thereof is situated.

3. VENUE OF PERSONAL ACTIONS – where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the
principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the
plaintiff.

 “Residence” means place where party actually resides at time of action; does NOT mean permanent home or domicile.
 Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in
that place and also an intention to make it one’s domicile.93

4. Action against non-resident not found in the Philippines

a. ACTION AFFECTS THE PLAINTIFF’S PERSONAL STATUS - in the court of the place where the plaintiff resides.

b. ACTION AFFECTS ANY PROPERTY OF THE DEFENDANT IN THE PHILIPPINES - where the property or any portion thereof is
situated or found.

5. Rules on Venue shall NOT apply:

a. In those case where a specific rule or law provides otherwise (e.g., civil case for damages in cases of libel, where Article
360 of RPC provides specific rules on venue); OR

b. Where the parties have validly agreed IN WRITING before the filing of the action on the EXCLUSIVE venue thereof.

 In this instance, the action can only be filed in the place agreed upon even if the other place is the place of residence of
the parties or the location of the real property involved.

REAL ACTIONS

(1) An action to annul a deed of sale of real property and to obtain a judicial declaration that the plaintiff is the owner thereof. 94

(2) An action for the rescission of the sale of land or building does not efface the fundamental and prime objective and nature of the
action which is to recover said real property, even if the plaintiff does not directly seek the recovery of title or possession of the
property in question.95

(3) A suit that principally seeks the recovery of a sum of money, but in the event of failure of the defendant to voluntarily pay the
amount, the foreclosure on the real estate mortgage shall be commenced and tried in the province where the property or any part
thereof lies.96

PERSONAL ACTION

91
From the Bar 2004 Remedial Law Notes
92
From the Bar 2004 Remedial Law Notes
93
Raymond v. CA, 166 SCRA 50,54 (1988) citing Garcia Fule v. CA. 74 SCRA 50, 54 (1974); Koh v. CA, 70 SCRA 298 (1976).
94
Muñoz v. Llamas, 87 Phil. 737 (1950).
95
Punsalan v. Vda, de Lacsamana, 121 SCRA 331(1983).
96
Navarro v. Lucero, et al., 100 Phil. 147 (1956).

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(1) An action for the dissolution of a partnership is a personal action, even though it may involve a fishpond. Thus, it can be brought
either in the residence of the plaintiff or the defendant, not just where the fishpond is located.97

(2) An action for the recovery of damages is purely personal, despite the prayer for the issuance of a writ of preliminary injunction to
restrain the spouse from selling certain parcels of land belonging to the conjugal partnership.98

(3) An action for specific performance or rescission of contract due to a breach of contract is a personal action. Here, the plaintiff is
not attempting to recover land, but is only claiming rental payments for the use of the land.99

III. PARTIES

1. CAPACITY TO SUE AND BE SUED

 Sec. 1 Who may be parties; plaintiff and defendant.


Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the
claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) party plaintiff. The term "defendant" may refer to
the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.) party defendant.

 Sec. 4. Spouses as Parties.


Husband and wife shall sue or be sued jointly, except as provided by law.

 Sec. 5. Minor or incompetent persons.


A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has
none, a guardian ad litem.

 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.

 A person can become a party if he sues, intervenes or is impleaded.


 But merely being sued does not make him a party. He becomes party not by filing of case against him but
by being summoned.
 Entity without juridical personality cannot sue but can be sued. (ex. frat or law partnership
 Spouses must sue or be sued jointly
EXCEPTION: Wife may sue alone when
1) spouses are judicially separated
2) separation in fact for at least 1 yr
3) sep of prop in M settlements
4) admin of prop in M transferred to wife
5) litigation bet H and W
6) suit concerns her paraphernal prop
7) action is civil liab from crim offense
8) litig is incidental to her profession, occupation or business
9) any civil action in CC 25-35100
10) action upon quasi-delict
 Co-owner can bring action in behalf of co-owners

PHHC v JEREMIAS (1976)


After their loss in an ejectment case, MTC required Jeremias couple to execute surety bond. City Court later gave PHHC writ of
execution against surety bond, from which surety appealed.
Held:
A party is one who is to benefited or injured by a judgment or order of the court, and includes a person who is a party to the record.
When surety filed performance bond to insure execution of judgment in FE and UD case, surety became necessarily a party when it
filed its bond in court and when notice was served on it of the motion for execution. Surety had standing to appeal the order of
execution.

97
Claridades v. Mercader, 17 SCRA 1 (1966).
98
De Guzman v. Genato, 89 SCRA 674 (1979).
99
Davao Abaca Plantation Co. Inc., v. Dole Phils. Inc., 346 SCRA 682 (2000).
100
CC: thoughtless extravagance (25), dignity & privacy (26), refusal of public servant to perform official duty (27), unfair competition (28), acquittal of accused in crim case
(29), separate civil liab from crim offense (30), violation of civil rights (32), defamation, fraud and physical injuries (33), failure of police to render assistance (34), for civil liab
from crime if fiscal refuses to prosecute (35)

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MR Holdings v. Bajar(2002)
If a foreign corporation does business in the Philippines without license, it cannot sue before the Philippine courts; if a foreign
corporation is not doing business in the Philippines, it needs no license to sue before Philippine courts on an isolated transaction or
on a coa entirely independent of any business transaction; and if a foreign corporation does business in the Philippines with the
required license, it can sue before Philippine courts on any transaction.
Doing business implies a continuity of commercial dealings and arrangements, and contemplates, to that extent, the performance of
acts or works or the exercise of some of the functions normally incident to, and in progressive prosecution of, the purpose and
object for which the corporation was organized. At this early stage and with petitioner’s acts or transactions limited to the
assignment of contracts, it cannot be said that it had performed acts intended to continue the business for which it was organized.

2. REAL PARTY 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.
 Real party in interest required bec Consti says that judicial power should be exercised to settle actual
controversies

 Test if a person is real party in interest: if there will be double recovery

Sosnow, Kranz, & Simcoe Inc. v. Storatti Corp.


The purpose of the agreements was to secure for the insured Sosnow, et.al. an amount equivalent to their loss without subjecting
the assured to the risk of liability for repayment if no recovery against the 3 rd party (Storatti) can be had, and without transferring to
the insurer by subrogation. The parties had the right so to shape their transactions that title would reside wherever they saw fit. So
long as the wrongdoer against whom the coa is asserted is not subjected to the danger of double recovery, he is in no position to
complain. Plaintiff transferred to their insurers the beneficial interest in any recovery, but refrained from transferring the legal title to
their claims. By retaining title to the coa, the Ps were constituted trustees of an express trust and as such are the real parties in
interest to prosecute the claims.

3. REPRESENTATIVE SUITS

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.

 If no executor or administrator for estate of deceased person, heirs may sue or be sued on a claim of or
against the deceased. Suit may be in the heirs’ personal capacity and not as reps of the deceased
although they may be invoking or claiming rights of the deceased.

A) Class Suit
 Rule 3, Sec 12
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.

 Common interest must be in the subj matter of the controversy and not in the legal question involved, and
must be common for each member of the class and should not conflict with each other.
 Example: Subd residents question fee of 50 for maintenance of improvements. Can a resident bring class
suit in behalf of all?
Answer: No, because interest of each homeowner is only in their respective lots.
Hansberry v. Lee
Prior case: Burke v. Kleiman, Burke is a landowner who sought to enforce the 95% to allow colored to own lots. Burke lost the case,
the 95% was not met. Present case: Petitioner Hansberry, negroes, wants to own land, invokes that the 95% was met; respondent
cries breach of the agreement, invokes res judicata of prior case.
Held: The restrictive agreement did not create a joint obligation or liability. If valid and effective, its promises were the several
obligations of the signers and those claiming under them. The promises ran severally to every other signer. It is plain that in such
circumstance, all those alleged to be bound by the agreement would not constitute a single class in any litigation brought to enforce

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it, for the agreement imposes obligations and confers rights on the owner of each plot of land; their interests are several and may be
conflicting.

4. JOINDER OF PARTIES

 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.

 Sec. 7. Compulsory joinder of indispensable parties.


Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants.

 Sec. 8. Necessary party.


A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to
those already parties, or for a complete determination or settlement of the claim subject of the action.

 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.

 Sec. 10. Unwilling co-plaintiff.


If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a defendant and the reason
therefor shall be stated in the complaint.

 Sec. 11. Misjoinder and non-joinder of parties.


Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the
court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a
misjoined party may be severed and proceeded with separately.

BLUME AND REED, PLEADING AND JOINDER


Joinder of parties has 2 distinct meanings:
1) Joinder of parties- When 2 or more persons have a joint right in one claim, or are jointly liable on one
claim, they must, ordinarily, join as plaintiffs or be joined as defendants.
2) Joinder of claims- When 2 or more persons, each having a claim against another person, join their
claims in one action, it is called joinder of claims, but is usually called joinder of parties
- applies also if plaintiff has several claims against a diff person but joins claims in 1
action

 Requirements for joinder:


1) right to relief in respect to or arising out of the same transaction or series
of transactions
2) question of fact or law common to all
 Joinder is mandatory if there are indispensable parties
 Joinder of necessary parties depends on court. Example of necessary party: junior mortgagee who, if not
made a party in foreclosure, will simply not be bound by judgment
Bank of California v. Superior Court
Other legatees are merely necessary, not indispensable parties. Each distribute is individually held as a constructive trustee solely
of the property which came to him, and none is interested in the granting or denial of similar relief. Plaintiff may litigate her claim
against the appearing defendants alone and obtain a decree which binds them alone, though the entire matter, the disposition of all
the decedent’s property cannot be finally settled without a binding adjudication for or against every legatee.

Olsen v. Bankers Trust Co.


The claims of the plaintiffs maker and payee are not coordinate, alternative, or complementary. They are not joint, nor several, nor
common. They are mutually destructive. If one plaintiff proves his right to recover, the other’s claim [from the bank] must be entirely
extinguished. The right of action is now in the maker and no obligation remains to the payee upon the bank’s part.

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Fortemeyer v. National Biscuit Co.


Why should the plaintiff, having but one cause of action and entitled to only one satisfaction of it be compelled to proceed against
the defendants separately, and bring these separate actions, instead of one, for the same coa?

5. SUBSTITUTION OF PARTIES

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 of the fact thereof, and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30)
days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one 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.
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.
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.
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.
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 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.

6. ALTERNATIVE & UNKNOWN DEFENDANTS

Rule 3, Secs. 13 & 14


Sec. 13. Alternative defendants.
Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in
the alternative, although a right to relief against one may be inconsistent with a right of relief against the other.

Sec. 14. Unknown identity or name of defendant.


Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other
designation as the case may require; when his identity or true name is discovered, the pleading must be amended accordingly

7. INDIGENT PARTY

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.
Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes
which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted
from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court
should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper
docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by
the court, execution shall issue for the payment thereof, without prejudice to such other sanctions as the court may impose.

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8. SOLICITOR GENERAL

Rule 3, Sec. 22. In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or
regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through
a representative duly designated by him.

9. NEW/ADDITIONAL PARTIES
a. Impleader

Rule 6, Secs. 11 –13


Sec. 11. Third, (fourth, etc.) party complaint.
A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the
action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his
opponent's claim.

Sec. 12. Bringing new parties.


When the presence of parties other than those to the original action is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them
can be obtained.

Sec. 13. Answer to third (fourth, etc.) party complaint.


A third (fourth, etc.) party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses
that the third (fourth, etc.) party plaintiff may have against the original plaintiff's claim. In proper cases, he may also assert a
counterclaim against the original plaintiff in respect of the latter's claim against the third-party plaintiff.

Rule 11, Sec. 5


Answer to third (fourth, etc.)- party complaint.
The time to answer a third (fourth, etc.)- party complaint shall be governed by the same rule as the answer to the complaint.

STATE EX REL WILLIAMS v SUPERIOR COURT


Rice & Co. is contractor to build railway. Rice then subcontracted to Cross. In turn, Cross also subcontracted to Williams. Cross later
sued Rice. Williams filed complaint in intervention where he claimed that Cross still owed him money.
Held:
Interest which entitles a party to intervene must be of such direct and immediate character that intervenor will either gain or lose by
the direct legal operation and effect of the judgment. His interest must be such that if orig action had not been brought, and he had
first brought it as sole plaintiff, he would have been entitled to recover in his own name.
Creditor has no such direct interest in litigation that he has right to intervene. He will not suffer loss nor gain by judgment in original
action. If plaintiff loses, creditor still has right to sue plaintiff upon his ©. There is no contractual relation or privity between him and
defendant.

FIRESTONE TIRE AND RUBBER CO. v TEMPONGKO (1969)


Tempongko, defendant, filed 3rd party complaint against Luna. Tempongko ordered to pay Firestone, and Luna ordered to pay
Tempongko. However, only Luna appealed.
Held:
3rd party complaint is a device where a 3rd party, who is neither a party nor privy to the act or deed complained of by the plaintiff,
may be brought into the case with leave of court by defendant who acts as 3rd party plaintiff. It is actually independent and distinct
from plaintiff’s complaint, but is permitted to avoid circuitry of action and unnecessary proliferation of lawsuits. Court in effect renders
2 judgments in the same case. Therefore, appeal by one party does not benefit the other.
Prior leave of court is necessary, so if 3rd party complaint will only delay, court could require separate action.
Judgment v defendant (who had not appealed) became final and executory.

Venue of 3rd party complaint has to yield to jurisdiction of main action to which it is ancillary (Eastern Assurance and Surety v Cui)
Since 3rd party defendant can usually assert defenses which defendant may have against plaintiff’s original claim, the plaintiff can
assert claim directly vs 3rd party defendant without having to amend his complaint.

b. Intervention
Rule 19
Section 1. Who may intervene.
A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is
so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will

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unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully
protected in a separate proceeding.

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.

Sec. 3. Pleadings-in-intervention.
The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties, or an answer-in-
intervention if he unites with the defending party in resisting a claim against the latter.

Sec. 4. Answer to complaint-in-intervention.


The answer to the complaint-in -intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless
a different period is fixed by the court.

DIRECTOR OF LANDS v CA (1979)


Widow filed for reconstitution of her TCT covering 140 hectares in Muntinlupa and Paranaque. Despite opposition of Dir of Lands,
CA granted reconstitution. Greenfield Devt Corp and Alabang Devt Corp filed for motion to intervene bec the widow’s title would
overlap with their lands. However, motion filed after trial had been concluded and judgment rendered => too late.
Held:
Even if RoC orders intervention before or during trial, denial of motions for intervention would lead Court to commit injustice. There
would be overlap of 78 hectares and due to the many subdivisions built on this area, would bring about swamping of the courts.
Moreover, they are indispensable parties without whom a final adjudication cannot be made in their absence. Their joinder is
compulsory, their presence being sine qua non to exercise of judicial power. There can be no valid judgment if there is want of
indispensable parties.

c. Interpleader

Rule 62
Sec. 1. When interpleader proper.
Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in
the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the
conflicting claimants to compel them to interplead and litigate their several claims among themselves.

Sec. 2. Order.
Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. If the
interests of justice so require, the court may direct in such order that the subject matter be paid or delivered to the court.

Sec. 3. Summons.
Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order.

Sec. 4. Motion to dismiss.


Within the time for filing an answer, each claimant may file a motion to dismiss on the ground of impropriety of the interpleader
action or on other appropriate grounds specified in Rule 16. The period to file the answer shall be tolled and if the motion is denied,
the movant may file his answer within the remaining period, but which shall not be less than five (5) days in any event, reckoned
from notice of denial.

Sec. 5. Answer and other pleadings.


Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of the summons upon him, serving a
copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these Rules. If any claimant
fails to plead within the time herein fixed, the court may, on motion, declare him in default and thereafter render judgment barring
him from any claim in respect to the subject matter.
The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and responsive pleadings thereto,
as provided by these Rules.

Sec. 6. Determination.
After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted in accordance with the Rules, the
court shall proceed to determine their respective rights and adjudicate their several claims.

Sec. 7. Docket and other lawful fees, costs and litigation expenses as liens.
The docket and other lawful fees paid by the party who filed a complaint under this Rule, as well as the costs and litigation
expenses, shall constitute a lien or charge upon the subject matter of the action, unless the court shall order otherwise.

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WACK WACK GOLF v WON (1976)


Won got judgment ordering Wack Wack to give him membership certif. Bienvenido Tan is also claiming ownership. Wack Wack then
filed complaint of interpleader.
Held:
Interpleader is a remedy where person who has personal prop in his possession or an obl to render wholly or partially, without
claiming any right to either, comes to court and asks that the claimants be required to litigate among themselves. This remedy is
afforded to a person not against double liability but against double vexation in respect of one liability.
Stakeholder should use reasonable diligence to hale contending claimants to court. He should file interpleader within a reasonable
time after a dispute has arisen without waiting to be sued by either of the contending claimants. Otherwise, he may be barred by
laches or undue delay.
Stakeholder’s action of interpleader came too late after judgment had been rendered against him in favor of one of the contending
claimants, esp where he had prior notice of the conflicting claims prior to the rendition of the judgment. Since he is already liable to
one party, interpleader suit is improper and unavailing.
Besides, successful litigant cannot be impleaded by his defeated adversary and compelled to prove his claim anew as that would be
collateral attack upon the judgment.
Interpleader filed too late

Table 2: Intervention v. interpleader


INTERVENTION INTERPLEADER
* An ancillary action. * An original action
* Proper in any of the four situations mentioned in this Rule. * Presupposes that plaintiff has no interest in the subject matter
of the action or has an interest therein, which in whole or in part,
is not disputed by the other parties to the action
* Defendants are already original parties to the pending suit * Defendants are being sued precisely to implead them.

Table 3: Interpleader v. Intervention


INTERPLEADER INTERVENTION
1. an original action 1. ancillary action
2. presupposes that plaintiff has no interest in the subject matter 2. proper in any of the four situations: persons having (a) legal
of the action or has interest therein in whole or in part which is interest in the matter of litigation, or (b) success of either of the
not disputed by the other parties parties, or (c) an interest against both, or (d) is so situated as to
be adversely affected by a distribution or other disposition of
property in the custody of the court or of an offer thereof, (Rule
19, Sec. 1)
3. defendants are being sued precisely to interplead them 3. defendants are original parties to the pending suits

IV. SUMMONS

 A writ or process issued and served upon the defendant in a civil action for the purpose of securing his appearance
therein.

 The service of summons enables the court to acquire jurisdiction over the person of the defendant.

 In the absence of service of summons, and unless the defendant waives such defect by his voluntary appearance in court,
any judgment rendered in regard to such defendant is null and void.

 The general rule is that summons is served by the sheriff or the court officer. However, as an exception, the court for
justifiable reason allow any suitable person authorized by the court to serve summons (Sec. 3, Rule 14). An example of
an instance when a suitable person is authorized by the court to serve summons is when the court is overworked and
understaffed or it the court doesn’t know the location.

 Residence as opposed to domicile is physical. It is possible to have more than one residence.

1. Issuance and contents of the summons

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Rules of Court. RULE 14


Sec. 1. Clerk to issue summons.
Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the
corresponding summons to the defendants.
Sec. 2. Contents.
The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: the name of the court
and the names of the parties to the action; a direction that the defendant answer within the time fixed by these Rules; a notice
that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for.A copy of
the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the
summons.

2. Service of summons

a.) By whom issued

Rules of Court. RULE 14


Sec. 1. Clerk to issue summons.
Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the
corresponding summons to the defendants.
Sec. 5. Issuance of alias summons.
If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return
on the plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the
summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons.

b.) By whom made


Rules of Court. RULE 14
Sec. 3. By whom served.
The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable
person authorized by the court issuing the summons.

CASE:

BELLO v UBO (1982) 117 SCRA 91


Bello filed complaint to recover real prop with damages. Patrolman was the one who served summons. Judgment
issued against defendant in default.
Held:
Summons may be served by the sheriff or other proper court officer, or for special reasons, by a person especially
authorized by the judge. This enumeration is exclusive. Service of summons is irregular if made by police sergeant who is not a
sheriff and who was not authorized by the court. Service of summons invalid. No jurisdiction acquired by the court. Also, return
of service was not under oath, and only one copy of the summons was served on the 2 defendants.

c.) Modes of Service


Rules of Court. RULE 14
Sec. 6. Service in person on defendant.
Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to
receive and sign for it, by tendering it to him.
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.
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.

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.
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.
Sec. 11. Service upon domestic private juridical entity.

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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.
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.
Sec. 13. Service upon public corporations.
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.
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.
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.
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.
Sec. 17. Leave of court.
Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be
made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the
application.
Sec. 20. Voluntary Appearance
The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss
of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.

 Form/Directive (R 14, S. 2)
 Directed to the defendant
 Signed by the Clerk of Court under seal
1. File and serve
2. Attach copy of complaint and/or order for appointment of a guardian ad litem, if any
3. Specification of period within which to answer
4. Specification of consequence if D fails to answer, i.e., judgment by default and grant of relief prayed for
 Contents (R14.2)
1. Name of the court
2. Name of the parties to the action
3. A direction that the defendant answer within the time fixed by Rules
4. Notice that unless defendant so answers, plaintiff will take judgment by default and may be granted
the relief applied for.
5. Copy of complaint attached

 When an additional defendant is included in the action, summons should be served upon him.
 When a defendant is merely substituted for the deceased defendant, such as the substitution of the administrator
or the heirs of the deceased, service upon him of the ORDER making him party is sufficient without service of
summons.

 Issuance and Service


 Who issues? Clerk of Court (R 14, S. 1) upon filing of complaint and payment of the requisite legal fees
 Who serves?

1. sheriff
2. sheriff’s deputy
3. other proper court officer
4. any suitable person authorized by the court issuing the summons

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 Types of Service:
1. Personal
a. handing
b. tendering – occurs when the person refuses (But what do you exactly mean by tendering; is putting it
under the door tendering?)

2. Substituted – This is allowed only when the defendant cannot be served summons by personal service; In the
sheriff’s return, there must be a statement that says that personal service is not possible. It must state the efforts
exerted by the sheriff.
a. Residence – with some person of suitable age and discretion residing therein
b. Office – with some competent person in charge thereof
- One cannot leave summons with a receptionist since the person is not in charge of the office.
- Read the Laus case (219 SCRA 688). This is the law now. The Supreme Court set a very strict
standard. The standard is such because substituted service is an extreme case.

3. Publication

4. By other means – Under the Electronic Commerce Act, summons may be served by fax or even e-mail. However,
one cannot serve summons by a pigeon or through smoke signals. According to Prof. Bautista, registered mail is
also one of the other means by which summons may be served if the court deems it sufficient.

 Extraterritorial service is proper only in 4 instances:

1. when the action affects the personal status of the plaintiff;


2. when the action 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;
3. when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any
interest in property located in the Philippines; and
4. when the defendant non-resident’s property has been attached in the Philippines

 For a newspaper to be a newspaper of general circulation, the following elements must concur:

1. it must be a newspaper, i.e. it published local news and general information, not merely feature articles;
2. published at regular intervals (not just occasionally);
3. published for the general public and not just a specific group of persons

 Thus, the Pinoy Times is probably not a newspaper since it does not contain any news articles. It only has
featured articles. (Although as of 1 February 2001, it appears that the Pinoy Times has “evolved” into a
newspaper by now publishing predominantly news and matters of general interest.) The Supreme Court in
one case said that the Daily Record was a newspaper of general circulation.

 Where summons effective:

Rule 135 (1997)

 Sec. 3 - Process of superior courts enforced throughout RP


 Sec. 4 - Process of inferior courts enforceable within the province where the municipality or city lies may be served
outside province with the approval of the RTC Judge of said province & only in the ff cases:

1. when order for DELIVERY OF PERSONAL PROPERTY lying outside the province is to be complied with;

2. when an ATTACHMENT of REAL property lying outside the province is to be made;

3. when the action is against 2 or more defendants residing in different provinces; and

4. when the place where the case has been brought is that specified in a contract in writing between the
parties, or is the place of the execution of such contract as appears therefrom.

BP 129, as amended (1980)

- Sec. 38 (2) - Judgments and processes issued by the METC, MTC and MCTC , in cases falling under their jurisdictions,
may be served ANYWHERE in the Philippines without the necessity of certification by the Judge of the RTC.
 Modes of Service of Summons:

Handing it to defendant
Personal

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Tendering it if D refuses to receive it

Handing v. Tender  note that in both of these modes of personal service, location is
not important, so service could be done anywhere, no need for it to be made at the
residence of the D

WHERE WITH WHOM


residence suitable age & discretion &
residing therein
Substituted
**when D can’t be
served within office or place competent person in
reasonable time of business charge thereof

Justifiable reasons for substituted service:

(a) staff not available (understaffed)


(b) distance
(c) identification of person to be sued
e..g. Tatalon estate; squatters area/houses with no numbers

Publication
- Must be in a newspaper of general circulation
- Defendant whose identity or whereabouts unknown {R 14 (14)}

Extraterritorial Service
- HOW DONE? By leave of court
- Either by:
a) personal service OR
b) publication in a newspaper of general circulation in such places and for such time as the court may order,
copy of summons and order of court sent by registered mail to last known address.
- Order granting such leave shall specify reasonable time within w/c def must answer  must not be less than
60 days
- When applicable:
a) D does not reside and is not found in RP AND action :
 affects the PERSONAL STATUS of the plaintiff OR
 relates to or the subject matter of which is PROPERTY W/IN RP in which the D has or claims a lien or
interest, actual or contingent, OR
 in which the RELIEF demand consists, wholly or in part, in EXCLUDING D from any interest therein
OR
 property of D has already been attached w/in RP
- In cases falling under extraterritorial service [R 14(15)], service by publication must be COUPLED with
sending of summons and order of the court by REGISTERED MAIL to the last known address of the D.
Registered mail  note the numbering machine has a lock to prevent tampering
b) D is resident but temporarily outside of RP (but resort to substituted service first**)

Any other manner – as the court may deem sufficient


CASES:

LAUS v CA (1993) 219 SCRA 688


Torres sued Laus for a sum of money. Sheriff went to Laus’ house to serve the summons and copy of the complaint. He
waited for only 10 minutes before he left it on a maid. Judgment in default vs Laus.
Held:
Gen rule is that summons must be personally served, to be accomplished by handing a copy to the defendant in person or
if he refuses to receive it, by tendering it to him. If this mode cannot be effected within a reasonable time, substituted service may be
resorted to by a) leaving copies at defendant’s dwelling house or residence with some person of suitable age and discretion residing
therein, or b) by leaving copies at defendant’s office or regular place of business with some competent person in charge thereof.
“Within a reasonable time” – contemplates period of time longer than “prompt”, and presupposes a prior attempt at
personal service, within a justifiable time frame as would be necessary to bring the defendant within the jurisdiction of the court.
Since substituted service is in derogation of the common law and is extraordinary in character, it must be used as prescribed and in
the circumstances authorized by statute. Statutes prescribing modes other than personal service must be strictly complied with to
give the court jurisdiction. If substituted service not validly effected, trial court doesn’t acquire jurisdiction. Service of summons may
be made at night as well as during the day, or even on a Sunday or holiday bec of its ministerial character. If defendant not properly
summoned, period to file MTD for lack of jurisdiction over his person does not commence to run until he voluntarily submits to
jurisdiction of the trial court. Sheriff’s return did not indicate impossibility of service of summons within a reasonable time, specify the

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efforts to locate petitioners, or state that it was served on person of sufficient age and discretion. He could have returned in the
evening or during the weekend. Also, no proof of service on husband.

KEISTER v NAVARRO (1977) 77 SCRA 209


Keister, pres of Batjak, was sued by Batjak for selling a company car. Summons served at his lawyer’s office, the address
given by Batjak, even if Batjak knew his home and office address.
Held:
Service of summons upon def is the means by which the court may acquire jurisdiction over his person. In such absence
of a valid waiver, trial and judgment without such service are null and void. This process is solely for the benefit of the defendant. Its
purpose is to give court jurisdiction of the person and to give defendant an opportunity to be heard on the claim made against him.
Summons must be served to def in person. Only when he cannot be served personally within a reasonable time can a
substituted service be made. Impossibility of service should be shown by stating the efforts made to find the defendant personally
and the fact that such efforts failed. This statement should be made in the proof of service, bec substituted service is in derogation
of usual method of service. Dwelling house or residence should be where he is living at the time service is made, not the former
dwelling house. Office or regular place of business=> at the time of service. Such relation of confidence must exist bet person with
whom copy is left and the defendant, and therefore assumes that such person will deliver the process to defendant or in some way
give him notice thereof.

SUMMIT TRADING v AVENDANO (1985) 135 SCRA 397


Vendors a retro sued the vendee and Summit Trading, to whom the land was subsequently transferred. Summons and the
default judgment were served on Summit through the secretary of Summit’s president.
Held:
While technically, no strict compliance with rule that service on pvt domestic corp or partnership must be made on the
president, mgr, sec, cashier, agent or any of its directors, President’s sec may be regarded as an agent bec it is through secretary
that Pres normally has contact with outside world. Also, service of judgment came to notice of Summit also through secretary. Cf:
Delta Motor v Mangosing: invalid summons on mere clerks who cannot be relied on to know what to do with legal papers

CARIAGA JR. v MALAYA (1986) 143 SCRA 441


Cariaga (defendants), sued for recovery of real prop, were both residing abroad and not served with summons. CFI
approved plaintiff’s motions to effect extra-territorial service by registered mail abroad. Def made special appearance to move that
service by registered mail null and void,
Held:
Extraterritorial service of summons is proper when
1) action affects personal status of the plaintiff
2) action relates to, or the subj of which is prop within the Phils
3) when relief demanded consist in excluding def from any int in prop located in the Phils
4) when defendant’s nonresident prop has been attached within the Phils (Sec 17, Rule 14, RoC)
In any of these 4 cases, service may, with leave of court, be effected out of the Phils, in 3 ways:
1) by personal service
2) by publ in newspaper of gen circulation as the court may order + copy of summons and court order sent by registered
mail to last known address
3) in any other manner as court may deem sufficient
3rd mode was substantially complied with
whatever defect in summons corrected by 2nd order giving them 90 days anew to file pleadings

MCDONALD v MABEE (US, 1917)


Mabee served with summons by publ only in newspaper once a week for 4 weeks. However, he had already left the state with intent
to establish a home elsewhere, even as his family stayed behind.
Held:
Service by publ does not warrant a personal judgment against a non-resident. Advertisement in local newspaper is not
sufficient notice to bind a person who has left a State intending not to return. To dispense with personal service, the substitute that is
most likely to reach the defendant is the least that ought to be required if substantial justice is to be done.

GILBERT v BURNSTINE (US, 1931)


Burnstine are residents of New York. They contracted to sell within US, but stipulated that all differences to be arbitrated
at London pursuant to Arbitration Law of Great Britain. Plaintiff obtained summons from King, which was served in New York.
Held:
Generally, extraterritorial jurisdiction of alien tribunals is denied. But © in advance to submit to foreign tribunals
partake of strictly pvt business, and is not void as against public policy. Jurisdiction over the person of the defendant may be
acquired by his consent.

MAGDALENA ESTATE v NIETO (1983) 125 SCRA 758


Action for sum of money. Defendants allegedly concealed themselves to avoid service, so court ordered service through
publication.
Held:

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Personal service within the state or a voluntary appearance in the case is essential to acquisition of jurisdiction.
In actions in personam, personal service of summons is essential. Due process requires personal service to support a personal
judgment. Proper recourse of creditors is to locate properties, real or personal, of the resident defendant debtor with unknown
address and cause them to be attached, in which case the attachment converts the action into a proceeding in rem or quasi in rem
and the summons by publ may then be deemed valid and effective.

UNITED COCONUT PLANTERS BANK v ONGPIN (2001) 368 SCRA 464


UCPB sued Ongpin, surety of his company’s debt to UCPB, for enforcement of his obl. He transferred residence to HK in fraud of
creditors. Publication of summons held in abeyance, although court granted permission. Sheriff served summons on exec secretary
of Piltel, where Ongpin is chairman of the board. Refused to be received by Ongpin’s lawyer.
Held:
Party who makes special appearance in court challenging jurisdiction based on ground of eg. invalidity of service of
summons cannot be considered to have submitted himself to the jurisdiction of the court. Jurisdiction cannot be acquired over
person of respondent even if he knows of the case against him unless he is validly served with summons. Office or regular place of
business must be office or place at time of service. It doesn’t necessarily follow that regular place of chairman of board is the same
as address of the corp since possible for him to hold ofc elsewhere. If def is non-resident and his prop on the Phils had been
attached, or if whereabouts of def is unknown and cannot be ascertained with diligent inquiry, service may, by leave of court, be
effected outside the Phils or by publication in a newspaper of general circulation.

Table 4: Comparative Modes of Service and Filing


Summons Pleadings & Other papers Final Orders & Judgments

Mode of Service 1. Personal 1. personal 1. personal


* Handing * delivery to 2. mail
* tendering party/counsel * registered
2. substituted * leaving it in office 3. publication if D summoned by
* residence: with with clerk or person publication fails to appear in
resident of in charge action
sufficient age & * leaving it in
discretion residence of party or
* office/regular place counsel from 8 am
of business: to 6 pm
some competent 2. substituted
person in charge * with clerk of court
thereof after personal
3. publication service fails
4. any other means 3. mail
 registered (date of
mailing is date of
filing)
 ordinary

Mode of Filing n/a 1. personal 1. Personal


2. registered mail 2. Mail
 registered
 ordinary

d.) Proof of Service, Alias Summons

Rules of Court, RULE 14


Sec. 5. Issuance of alias summons.
If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the
plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has
been lost, the clerk, on demand of the plaintiff, may issue an alias summons.
Sec. 18. Proof of service.
The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service;
shall specify any papers which have been served with the process and the name of the person who received the same; and shall be
sworn to when made by a person other than a sheriff or his deputy.
Sec. 19. Proof of service by publication.
If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of
the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing
the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by
registered mail to his last known address.

CASE:

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MECHANICAL APPLIANCE v CASTLEMAN (1910)


Action in Missouri against Mechanical Appliance. Summons served in Missouri on its agent in Missouri. Mechanical said
that it did not have any agent in Missouri.
Held:
Foreign corp may be served with process within the State only when it is doing business there, and such
service must be made upon an agent who represents the corp in its business. Return of sheriff is not conclusive upon question of
validity of service or process (esp when recital of facts involves legal component)

e.) Return of Service

Rules of Court, RULE 14


Sec. 4. Return.
When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by
registered mail, to the plaintiff's counsel, and shall return the summons to the clerk, who issued it, accompanied by proof of service.
(6a)
Sec. 5. Issuance of alias summons.
If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the
plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has
been lost, the clerk, on demand of the plaintiff, may issue an alias summons. (4a)

3. Voluntary Appearance

Rules of Court, RULE 14


Sec. 20. Voluntary appearance.
The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss
of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a)

CASES:

UCPB v ONGPIN (2001)


Held: Party who makes special appearance in court challenging jurisdiction based on ground of eg. invalidity of service of summons
cannot be considered to have submitted himself to the jurisdiction of the court.

OROSA v CA (1996) 261 SCRA 376


Orosa et al were sued of sum of money. Summons on one def through his secretary; one def through his employee. They
asked for more time to file answer. In questioning the default judgment vs them, they questioned summons.
Held:
Any flaw in sheriff’s return which failed to state particulars of impossibility of personal service within a reasonable time was
deemed waived by filing of motion for additional time to file answer. Whatever defect there was in the mode of service of summons
was deemed waived and the court acquired jurisdiction over the persons of petitioners by their voluntary submissions thereto.
But inclusion of other grounds in special appearance ≠ voluntary appearance.

Table 5: Completeness of a Service


1. Personal Service
- By handing a copy to defendant; or
- Tendering him a copy if he refuses
- Complete upon actual delivery
2. Service by ordinary mail:
Complete upon expiration of 10 days after mailing, unless the court provides otherwise.
3. Service by registered mail:
(a) Complete upon actual receipt by the addressee; or
(b) After 5 days from the date he received the first notice of the postmaster, whichever date is earlier.

What pleadings have to be verified:

a. Petition for relief from judgment (38.3)


b. Appeal by certiorari from CA to SC (45.1)
c. Complaint with prayer for preliminary attachment (57. 3)
d. Complaint for injunction (58.4)
e. Complaint for replevin (60.2)
f. Petition for certiorari (65.1)
g. Petition for prohibition (65.2)
h. Petition for mandamus (65.3)

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i. Complaint for forcible entry or unlawful detainer (70.4)


j. Petition for appointment of general guardian (93.2)
k. Petition for leave to sell or encumber property of estate or guardian (95.1)
l. Petition for declaration of competency of the ward (97.1)
m. Petition for habeas corpus (102.3)
n. Petition for change of name (103.2)
o. Petition for voluntary dissolution of a corporation (104.1)
p. Petition for cancellation or correction of entries in the civil registry (108.1)
q. Petition to take deposition in perpetuam rei memoriam (before action or pending appeal) (24.2)
r. Motion to set aside a default order of an inferior court
s. Motion for dissolution of preliminary injunction on the ground of irreparable damage to the movant while the adverse party
can be fully compensated
t. Petition for appointment of receiver
u. Petition for review of the decision of an RTC in cases within the exclusive original jurisdiction of the inferior court, by and
elevated to the CA.
v. Pleadings that need not be verified but must be under oath:
w. Denial of the genuineness and due execution of an actionable document (8.8)
x. Denial of allegations of usury (8.11)
y. Answer to written interrogatories (25.2)
z. Answer to request for admission (26.2)
aa. Notice of appeal from administrative tribunals to the CA

Supporting affidavits of merit required:

a. Motion to postpone for absence of evidence (30.3)


b. Motion to postpone for illness of a party or counsel (30.4)
c. Motion for summary judgment or opposition thereto (35.1,2,3,5)
d. Motion for new trial on the ground of FAME or opposition thereto (37.2)
e. Petition for relief from judgment (38.3)
f. Third-party claim (39.16)
g. Proof required of a redemptioner (39.30)
h. Motion for preliminary attachment (57.3)
i. Motion for dissolution of preliminary injunction (58.6)
j. Application for writ of replevin (60.2)
k. Claim against the estate of the decedent (86.9)
l. Motion for new trial based on newly discovered evidence in criminal cases (121.4)

CERTIFICATION AGAINST FORUM-SHOPPING:

Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading or in a sworn certification
annexed and filed therewith:

a. That he has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial
agency; to the best of his knowledge no such other claim or action pending;

b. If there is such other pending action, a complete statement of the present status thereof;

c. If he should thereafter learn that same or similar action or claim is filed or pending, he shall report the same within 5 days
therefrom to the court where he filed his complaint.

NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE COMPLAINT OR PLEADING BUT SHALL
BE CAUSE FOR DISMISSAL OF THE CASE WITHOUT PREJUDICE; IF THE ACTS OF PARTY OR COUNSEL CLEARLY
CONSTITUTE WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FOR SUMMARY DISMISSAL WITH PREJUDICE
AND CONSTITUTE DIRECT CONTEMPT.

 For Forum-Shopping to exist, there must be:

i. Same transactions involved;

ii. Same essential facts and circumstances; and

iii. Actions raise identical cause of action, subject matter, and issues

Table 6: Modes of Service

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A. JUDGMENTS, FINAL ORDERS AND RESOLUTIONS


(a) By personal service; or
(b) By service by mail;
(c) By service by publication, if party is summoned by publication and has failed to appear in the action, judgment, final order or
resolution.

- They can be served only under the three modes.


* - They CANNOT be served by substituted service.
B. PLEADINGS
1. personal service
(a) Delivering personally a copy to the party or his counsel or;
(b) Leaving a copy in counsel’s office with his clerk or with a person having charge thereof or;
(c) Leaving the copy between 8 a.m. and 6 p.m. at the party’s or counsel’s residence, if known, with a person of sufficient age and
discretion residing therein – if no person found in his office, or if his office is unknown, or if he has no office.
2. service by mail
(a) If no registry service is available in the locality, of either sender or addresses, service may be done by ordinary mail.
(b) With proof of failure of both personal and service by mail.

Table 7: Service of Summons on Different Entities


A. SERVICE ON ENTITY WITHOUT - Upon any or all defendants being sued under common name; or
JURIDICAL PERSONALITY - Person in charge of office
B. SERVICE UPON MINORS AND - Serve personally and on guardian or any person exercising parental authority
INCOMPETENTS over him;
- In case of minors: by serving upon the minor, regardless of age, AND upon
his legal guardian, or also upon either of his parents.
- In case of incompetents: by serving on him personally AND upon his legal
guardian, but not upon his parents, unless when they are his legal guardians
- IN ANY EVENT, if the minor or incompetent has no legal guardian, the
plaintiff must obtain the appointment of a guardian ad item for him.
C. SERVICE UPON PRISONER - Serve an officer having management of the jail or prison
D. SERVICE UPON DOMESTIC - To the president, managing partner, general manager, corporate secretary,
PRIVATE JURIDICAL ENTITY treasurer or in-house counsel
- Service upon a person other than those mentioned is invalid and does not
bind the corporation.
E. SERVICE UPON FOREIGN - Serve on (15) resident agent; or if none;
PRIVATE JURIDICAL ENTITY - Gov’t official (30) designated by law; or
- On any officer or agent of the corporation within the Philippines
F. SERVICE UPON PUBLIC - In case defendant is the Republic of the Philippines – by serving upon the
CORPORATIONS Solicitor General
- In case of a province, city or municipality, or like public corporations – by
serving on its executive head, or on such other officer or officers as the law
or the court may direct.
G. EXTRA-TERRITORIAL SERVICE 1. Requisites
a) Defendant does not reside or is not found within the Philippines
b) The action either:
* Affects the status of the plaintiff;
* Relates to or the subject of which is property within the Philippines on which
defendant has a lien or interest;
* Demands a relief which consists wholly or in part in excluding the defendant from any
interest in any property within the Philippines;
* Property of defendant has been attached to the Philippines

2. Mode of Service
a) With leave of court served outside the Phil. By personal service; or
b) With leave of court served by publication in a newspaper of general circulation, in
which case copy of the summons and order of court must also be sent by registered
mail to the last known address of defendant; or
c) Any other manner the court deem sufficient.
H. SERVICE UPON RESIDENT Substituted service or with leave of court, personal service out of the Philippines as
TEMPORARILY OUT OF THE under extraterritorial service.
PHILIPPINES
V. PLEADINGS

1. Pleadings in general

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a.)
Rules of Court, RULE 6
Sec. 1. Pleadings defined.
Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for
appropriate judgment.
Sec. 2. Pleadings allowed.
The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-
in-intervention.
The defenses of a party are alleged in the answer to the pleading asserting a claim against him.
An answer may be responded to by a reply.
Rules of Court, RULE 8
Sec. 1. In general.
Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on
which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and
concisely stated.

b.)
Sec. 36, BP 129
Summary procedure in special cases.
In MeTCs and MTCs with at least 2 branches, the SC may designate 1 or more branches thereof to try exclusively FE and UD
cases, those involving violations of traffic laws, rules and regulations, violations of the rental law, and such other cases
involving summary disposition as the SC may determine. The SC shall adopt special rules or procedures applicable to such
cases in order to achieve an expeditious and inexpensive determination thereof w/o regard to technical rules. Such simplified
procedures may provide that affidavits and counter-affidavits may be admitted in lieu of oral testimony and that the periods for
filing pleadings shall be non-extendible.

c.) see Revised Rules on Summary Procedure, November 15, 1991

CLARK, SIMPLIFIED PLEADING


In Continental Europe, parties are not bound by the pleadings.
Anglo-Saxon: pleading binds parties
Pleadings, at the minimum, must sufficiently differentiate the situation of fact which is being litigated from all others to allow
application of res judicata. They will also show type of cases brought for proper routing. These minimal requirements do not force a
pleader to allege all the fine details or to include legal conclusions.

SIMPSON, A POSSIBLE SOLUTION OF THE PLEADING PROBLEMS


Pleadings should inform each side of the contentions of the other as to matters of fact. They should tell the defendant what he is
being sued for; they should tell the plaintiff what defenses the defendant proposes to make. Pleadings should facilitate preparation
for trial and formulate the issues to be tried.
Code system of pleading- complaint, answer and reply pleads facts sufficient to give a right of action
Possible solution: notice pleading- only a general statement by plaintiff of his claim and by defendant of his defense. However,
there’s high possibility of surprise.

JAMES AND HAZARD


Pleadings are a way of showing that the case falls within the court’s categories of jurisdiction.
Imposing on a plaintiff a requirement that the claim be articulated in detail means that only claimants who have access to such detail
can state a claim. But a liberal rule which does not require such details allows claimants who have such details to bring litig on
suspicion only.

2. The complaint

a) Rules of Court
Rules of Court, RULE 6
Sec. 3. Complaint.
The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and
defendant must be stated in the complaint.
Rules of Court, RULE 2
Sec. 1. Ordinary civil actions, basis of.
Every ordinary civil action must be based on a cause of action.
Sec. 2. Cause of action, defined.
A cause of action is the act or omission by which a party violates a right of another.

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b.)
BP 129, Sec 33
(1) Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases. -
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:
Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not
exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of
the demand does not exceed Two hundred thousand pesos (P200,000.00), exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That interest,
damages of whatever kind, attorney's fees, litigation expenses, and costs shall be included in the determination of the filing
fees: Provided, further, That where there are several claims or causes of actions between the same or different parties,
embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or different transactions;

JAMES AND HAZARD


Code requirement against pleading law means that it is improper to plead facts according to their legal effect. However, it is natural
to use words which give the facts legal coloring.
The pleader wants not only to protect himself against the possibility of surprise but also to show as little of his hand as possible to
his adversary.
However, social interest is best served by full mutual disclosure of all pertinent info about the controversy

CASES:

CALLAHAN v BRODERICK (1899)


The complaint alleged that the Board of Commissioners approved unlawful demands on a fund and sought to restrain the
audit of such demands. Demurrer for insufficiency of facts.
Held:
There are no averments of fact from which it can be determined whether the demands are or are not illegal or
unauthorized. There is no statement of the character of the demands. Necessity for a statement of the facts essential to a right
claimed is not obviated by averments of legal conclusions for allegations of conclusions of law will be disregarded in considering
objections raised by demurrer. A conclusion of law tenders no issue, and a complaint of law tenders no issue. Code provision
requires a concise statement of facts constituting the cause of action.

GILLISPIE v GOODYEAR SERVICE STORE (1963)


Complaint alleged that Goodyear, without cause or just excuse and maliciously came upon and trespassed upon plaintiff’s
residence, and which placed her in great fear and public scorn.
Held:
Complaint must contain a plain and concise statement of the facts constituting a cause of action, determinative of the
plaintiff’s right to relief. The law is presumed to be known, but the facts to which the law is to be applied are not known until properly
presented by pleading. The facts alleged, but not the pleader’s legal conclusions, are deemed admitted when the sufficiency of the
complaint is tested by demurrer. Where it merely alleges conclusions and not facts, it fails to state a cause of action and is
demurrable. In an action or defense based upon negligence, it is not sufficient to allege the mere happening of an injurious event
and call it negligence. Negligence is not a fact in itself, but is the legal result of certain facts.
 Complaint does not state what occurred, when, where etc.
 Note though that pleadings can assert only conclusions of law only when the defense relied on is based on
law. But the complaint should always state the facts.

c.) Splitting & Joinder of Causes of Action

(1).
Rules of Court, RULE 2
Sec. 3. One suit for a single cause of action.
A party may not institute more than one suit for a single cause of action.
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 or a judgment upon the merits
in any one is available as a ground for the dismissal of the others.
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 Regional Trial Court provided one of the causes of action falls within the jurisdiction of said
court and the venue lies therein; and
(d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall

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be the test of jurisdiction.


Sec. 6. Misjoinder of causes of action.
Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a
party or on the initiative of the court, be severed and proceeded with separately.

 Joinder of parties is compulsory if it’s a class suit. But joinder of claims may be permissive (but of course they are required
to plead everything constituting a single cause of action)

CASE:
DE LUZURIAGA v ADIL (1985) 136 SCRA 279
Luzuriaga sued Young in CFI for quieting, annulment and declaration of ownership. 3 days later, he sued Young again for FE with
damages in MTC. Young filed MTD based on litis pendentia. CFI judges said 2 causes of action must be joined in one suit and
ordered MTC case dismissed.
Held:
Party may institute only one suit for a single cause of action. Filing of 1 st suit may be pleaded in abatement of the other, and a
judgment upon the merits in anyone is available as a bar to others. Rule against splitting of action is to prevent repeated litigation
bet the same parties in regard to the same subject controversy, to protect defendant from unnecessary vexation, and to avoid costs
of numerous suits.
Issue of possession is connected with ownership. MTC judge should dismiss 2nd case.

3. The answer
a. Rule 6, Secs. 4 & 5; Rule 8, Secs. 10 & 11; Rule 9, Secs. 1-2
Rules of Court, RULE 6
Sec. 4. Answer.
An answer is a pleading in which a defending party sets forth his defenses. (4a)
Sec. 5. Defenses.
Defenses may either be negative or affirmative.
(a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his
cause or causes of action.
(b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute
of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other
matter by way of confession and avoidance. (5a)
Rules of Court, 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 to the
complaint, he shall so state, and this shall have the effect of a denial. (10a)
Sec. 11. Allegations not specifically denied deemed admitted.
Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted
when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not
denied under oath. (1a, R9)
Rules of Court, RULE 9
Sec. 1. Defenses and objections not pleaded.
Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it
appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is
another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim. (2a)
Sec.2. Compulsory counterclaim, or cross-claim, not set up barred.
A compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a)

CASES:
CANFIELD v TOBIAS (1863)
P Canfield filed action to recover balance due on an account of D Tobias. D’s answer admits indebtedness but claims that P
received promissory notes as payment. His answer also contains a copy of the receipt of the notes signed by P and claims that the
notes were paid.
Plaintiff however claims that the answer fails to deny his allegation in the complaint that D procured the arrangement with fraud and
misrepresentation.
Issue: WON an inference of truth can be drawn from the answer’s failure to deny allegations of F & M in the complaint. No
Held: The statute states that every material allegation in the complaint not specifically controverted in the answer shall be taken as
true; a material allegation us one which is essential to the claim and cannot be stricken from the pleading without leaving it
insufficient.

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P’s allegations were inserted by way of anticipation and are not part of the cause of action necessary to be stated in the first place.
They are not required to be stated in the complaint. allegations inserted to intercept or cut-off a defense are superfluous and
immaterial.
The purpose of the pleading is to put the D upon his oath without making him a witness, and the effect of allowing it would be to
establish a system of discovery in conflict with the spirit of the statute.

CRAMER v AIKEN (1934)


P James Cramer filed an action to recover damages for malicious prosecution and false arrest against D Ernest Aiken. It appears
the Cramer was imprisoned for 12 hours upon charges of larceny; he was acquitted. D moved for a directed verdict, TC ruled in
favor of D. P excepted and appealed: that D’s pleas were not denials of the allegations, were negative pregnant and constituted an
admission; that all he has to do was prove damages.
Issue: WON D’s answer was a negative pregnant: No
Held: A negative pregnant is a form of denial which implies an affirmative, or a denial in such a form as to imply or express an
admission of the substantial fact which apparently is controverted, or a denial, although in form of traverse, which really admits the
important facts in the allegations. A negative pregnant is a fault in pleading for it is ambiguous and evasive. But prohibition against it
is not strictly construed and an objection to it is not regarded favorably if made before trial. A literal denial is not a negative pregnant.
A reasonable interpretation of the denials in the plea is that D did not deny that he has imprisoned P, but he denied that it was done
unlawfully. This is a traverse of the charge of unlawful detention. The allegation of unlawfulness is material to P’s case, he has the
burden of proving that there was malice, no reasonable and probable cause for his prosecution. P failed to present proof.

HOME INSURANCE CO. v EASTERN SHIPPING LINES (1983) 123 SCRA 424
This is a consolidation of 2 cases: case 1: P insured Atlas Cons. Mining’s shipment of coils of copper wire rods by Eastern Shipping.
There was loss of 590 kg., P paid Atlas, became subrogated against Eastern Shipping.
Case 2: P insured shipment of 30 packages of service parts of farm equipment for Harvester Macleod by Columbian Phil. 1 package
was short and 5 had missing items, P paid insured and became subrogated. P now claims payment from the carriers. Ds, in their
answers, denied P’s capacity to sue for lack of knowledge or information sufficient to form a belief as to the truth thereof. At the time
the insurance contracts were entered into, P had no license. But when it filed the present suit, it was already licensed.
CFI dismissed complaints of P Home Insurance Co. on the ground that it had failed to prove its capacity to sue. It cites Sec. 68 & 69
of the Corporation Law requiring license for foreign corporation to do business as policy designed to protect public interest.
Contracts entered into are void under CC 1409(1). P files this petition for review on certiorari.
Issues: 1. WON contracts null & void. No
2. WON D’s denial re P’s capacity adequate. No
Held: 1. the purpose of Sec 68 and 69 is to subject foreign corporations to the jurisdiction of the court. It is not necessary to declare
the contract null and void against erring foreign corp, the penal sanction and denial of access to our courts are sufficient for policy.
Lack of capacity at the time of execution of contracts was cured by subsequent registration.
2. P sufficiently alleged its capacity to sue. D countered either with an admission or with a general denial bases on lack of
knowledge or information sufficient to form a belief as to the truth of the averments. The denial is inadequate: Section 4 Rule 8
states:
“Capacity. — Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized association of person that is made a party, must be averred. A party
desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative
capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's
knowledge. (4)”

WILLIAMS v ROBINSON (1940)


D Robinson’s wife filed suit for maintenance, D answered with counter-claim (the case uses the term cross-claim which is
erroneous): absolute divorce for adultery with P Williams as co-respondent. P answered cc with denial. P then filed this suit for libel
and slander against D, for maliciously and falsely charging him in the cc for adultery. D moved to dismiss: P failed to assert claim in
the cc in the maintenance suit, invoking rule 13(a) of the FRCP, therefore, P is now precluded (barred) from asserting it in an
independent action.
Rule 13(a) relates to compulsory counterclaim: it required P to state as a counterclaim any claim he had, at the time of filing his
answer to maintenance suit, against D, if it arose out of the transaction or occurrence that was the subject matter of D’s
counterclaim (adultery) in the maintenance suit.
Issue: WON libel and slander arose out of the same transaction or occurrence that was the subject matter of D’s cross-complaint.
No.
Held: The acts of adultery and the subsequent accusations regarding such adultery are NOT one and the same transaction or
occurrence. A “transaction” denotes something done, a completed action, an affair as a whole. An “occurrence” is a happening,
incident, or event. The words “transaction” and “occurrence” as used in Rule 13(a) include the facts and circumstances out of which
a cause of action may arise. Test: will the same evidence support or refute the opposing claims? Clearly the use of defamatory
language constituted no portion of the facts and circumstances in the counterclaim for adultery; there is no common point between
the causes of action.
To sustain D’s motion to dismiss would require P to admit that there was a transaction or occurrence as alleged by D. P makes no
such admission but specifically denies the acts of adultery.

4. Counterclaim and cross-claim

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a. Rule 6, Secs. 6-9, 12; Rule 9, Sec. 2; Rule 11, Secs. 8-10
Rules of Court, RULE 6
Sec. 6. Counterclaim.
A counterclaim is any claim which a defending party may have against an opposing party.
Sec. 7. Compulsory counterclaim.
A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with
the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its
adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within
the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional
Trial Court, the counterclaim may be considered compulsory regardless of the amount.
Sec. 8. Cross-claim.
A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against
whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-
claimant.
Sec. 9. Counter-counterclaims and counter-cross-claims.
A counterclaim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original
cross-claimant.
Sec. 12. Bringing new parties.
When the presence of parties other than those to the original action is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over
them can be obtained.
Rules of Court, RULE 9
Sec. 2. Counterclaim or cross-claim not set up barred.
A compulsory counterclaim, or a cross-claim, not set up shall be barred.
Rules of Court, RULE 11
Sec. 8. Existing counterclaim or cross-claim.
A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained
therein.
Sec. 9. Counterclaim or cross-claim arising after answer.
A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the
permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment.
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.

 Cross-claim, unlike counterclaim, is always compulsory


 But cross claim, like compulsory counterclaim: if not set up, is barred
CASES:
International Container Terminal Services Inc. v. CA (1992)
Sharp Inc. filed a complaint for prohibition with preliminary injunction against DOTC Secretary, the PPA, and ICTSI, enjoining the
negotiation and awarding of contract for the dev’t, mgt., and operation of the Container Terminal of the Port of Manila to ICTSI as
winning bidder. TC issued writ of preliminary injunction. ICTSI filed an answer with compulsory counterclaim for damages (more
than PhP100M) for Sharp’s unfounded and frivolous action. SC nullified preliminary injunction. PPA and ICTSI filed motion to
dismiss Sharp’s complaint. Both complaint and counterclaim were dismissed by RTC, upheld by CA. ICTSI files petition for review
claiming that counterclaim should not have been dismissed.
Issue: WON the counterclaim could remain pending despite dismissal of original complaint. No
Held: ICTSI’s counterclaim was clearly compulsory. It was not permissive, it had no independent existence being merely ancillary to
the main action. CC is compulsory where:
1. it arose out of, or is necessarily connected with, the same transaction or occurrence that is the subject matter of the opposing
party’s claim;
2. it does not require for its adjudication the presence of 3rd parties over whom the court cannot acquire jurisdiction;
3. the court has jurisdiction to entertain the claim.
The same evidence needed to sustain the cc would also refute the cause of action alleged by Sharp’s complaint. Therefore, it could
not remain pending for independent adjudication, i.e. without adjudication by the court of the complaint itself on which the cc is
based.
Rule 17, Section 2 is determinative

Meliton v. CA (1992)
Respondent Nelia Ziga filed a complaint against Petitioner Lydia Meliton for a rescission of a contract of lease over a parcel of land
in Naga City, for failure to deposit one month rental and pay monthly rents; construction of a concrete wall and roof without lessor’s
consent; and unauthorized sublease. Meliton filed an answer denying material averments and set-up 3 counterclaims: value of
kitchenette, improvements, and furnitures and fixtures that were demolished by Ziga, plus damages. Ziga’s complaint, upon Ziga’s
motion, was dismissed by TC: moot and academic by the expiration of lease contract. P’s counterclaim was also dismissed for non-
payment of docket fees (lack of jurisdiction). P filed this complaint for recovery of the same amounts in the cc. R filed motion to

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dismiss: barred by prior judgment of dismissal. TC denied motion. CA reversed and dismissed complaint. Hence this appeal by
certiorari.
Issue: WON CC are compulsory. YES
WON Ps are barred from asserting claims in another action (having failed to seek reconsideration or appeal from dismissal). NO
Held: 1. Test of compulsoriness: the logical relationship between the claim alleged in the complaint and that in the cc, i.e. where
conducting separate trials would entail a substantial duplication of effort and time, as where they involve many of the same factual &
legal issues. Here, both claims arose from the same contract of lease: their rights and obligations and their potential liability for
damages emanated from the same contractual relation.
2.A compulsory cc made the subject of a separate suit may be abated upon a plea of auter action pendant (litis pendentia) or res
judicata depending on the stage of the suit. Both cannot be invoked by R Ziga. Dismissal of complaint was made under Rule 17.2.
and dismissal thereunder is without prejudice except when stated in mtd or upon court’s order. Same rule applies to CC by parity of
rationale. CC was due to lack of jurisdiction for failure to pay docket fees: dismissal for lack of jurisdiction does not constitute res
judicata (not tried on merits).
The order of dismissal impliedly did not intend to prejudice the claims of P by barring subsequent judicial enforcement thereof.
Under R17.2. an action shall not be dismissed at p’s request after service of the answer except by order of the court upon such
terms and conditions the court deems proper. Therefore, the tc could not have BUT reserved Meliton’s right to maintain a separate
action for damages. (under new rule, motion to dismiss after cc filed, dismissal limited to complaint. at any rate, dismissal shall be
without prejudice to d’s right to prosecute cc in a separate action, unless d w/in 15 days from notice of mtd manifests preference to
have cc resolved in the same action).
Court also applied Manchester doctrine: failure to seek reconsideration because they were made to believe that their cc was merely
permissive should not prejudice them.

Toribio v. Bidin (1985)


The 3 Toribio siblings (Ps) Segundino, Eusebia, and Olegario, filed an action to recover heridtary rights against Dalmacio Ramos
and Juanito Camacho (Rs). The subject matter is the 8 pro-indiviso shares of a parcel of land inherited from their mother Justa. The
Ps were the only heirs who did not alienate their shares. But the Rs claim that they also sold their share to their brother Dionisio,
who in turn sold it to Rs.
The Rs presented as evidence of the alleged sale to and from Dionisio: deeds of sale, and R’s TCTs. During trial, Eusebia was
asked if she executed any sale of her share, Rs counsel objected: proper mode of contesting actionable documents should be
followed pursuant to Rule 8.7-8. Ps filed constancia w motion for reconsideration: documents merely evidentiary, not actionable;
subject of litigation was hereditary shares of Ps, therefore a simple denial w/o oath would suffice. CFI ruled in favor of Rs, hence this
p for review on certiorari.
Issue: WON the documents are actionable. Yes
Held: actionable documents are not only those that are the basis of plaintiff’s cause of action, but also include those that are the
foundation of a defense. Since the Ps claim that they never sold their shares, the deed of sale to Dionisio is therefore essential and
indispensable to Rs defense. The deed of sale by Dionisio to Rs would be insufficient. Hence, both deeds are elemental. Test: won it
can be made subject of a material issue. i.e. will the failure to prove it decide the case in whole or in part.
The purpose of R8.8 is to relieve the party of the trouble and expense of proving an alleged fact, the existence of which is within the
knowledge of the adverse party, and to notify adverse party, won he will have to meet issue of g &de during trial. Since Ps are party
to the instrument, the exception does not apply.
Issue 2: WON, by failure to follow R8.8. in contesting documents, genuineness and due execution of actionable documents are
deemed admitted.No.
Held: Court ruled based on equitable considerations due to the unusual circumstances of the case. The rule is a discovery
procedure and must be constrained to attain its purpose so as not to effect denial of substantial justice. Counsel of P was lulled into
complacency: 1) P already stated under oath that they never sold their shares; 2) the usual procedure is for D to deny under oath. It
skipped counsel’s attention that the rule applies to either an action or a defense based on a written document. Rs were also placed
on adequate notice that they would be called to prove g & de during trial. Furthermore, the heirs of Olegario are not parties to the
deed and therefore not required to deny the deeds under oath.

5. The reply

a. Rule 6, Sec. 10

Rules of Court, RULE 6


Sec. 10. Reply.
A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way
of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new
matters alleged in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an
amended or supplemental complaint.

 If answer pleads defense on actionable doc or on usurious transaction, plaintiff may file reply to make
verified (and specific) denial of actionable doc lest he be deemed to have impliedly admitted it

CASES:
McCARTHY v EMPLOYER’S FIRE INS (1934)

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P Mrs. MacCarty’s car worth $1,500 was insured by D Employer’s Fire Ins. P filed an action to recover on the policy alleging on the
complaint that the policy was in full force at the time of the fire and that P complied with all the terms and conditions. D, by leave of
court, filed an amended answer: that P w/o assent of D mortgaged the car to secure a $100 note which, under the terms, would
render the policy void. P replied: D waived the policy by taking possession of the wrecked car and retaining it even after knowledge
of the mortgage; estoppel by failure to return unearned premium. D demurred to the reply, overruled.
Issue; WON Ps reply is a departure from her original complaint (therefore a different cause of action). NO
Held:
Function of a reply is to join issue on a cc or new matter by way of defense appearing in the answer, and therein, P may set up any
new matter not inconsistent with the complaint , constituting a defense to such cc or new matter in the answer. Thus, a reply cannot
supply omissions in the complaint or broaden its scope by adding new grounds for relief, or permit P to take a position inconsistent
with complaint. If insurer claims violation of a clause in the contract, the P may plead in reply facts constituting waiver or estoppel.
This is not a new or different cause of action, there is no attempt to reform the policy and recover from a new contract: the action
remains upon the original comtract.
Conditions subsequent are matters of defense to be pleaded by the defendant, and it is not necessary that the plaintiff anticipate
such defenses, and negative them by averring performance (Tillis). Conditions precedent (must be performed so that policy take
effect) must be alleged in the complaint. Conditions subsequent are the acts of the D constituting waiver and may be pleaded in the
reply.

Potts v. Point Pleasant Land Co.


Plaintiff Potts files a complaint for breach of contract against D Point Pleasant. Under the K, P was supposed to file and grade
certain lots and clay sidewalks at Point Pleasant. They would be paid 18c per cubic yard removed. Complaint avers the due
performance of the work and failure of D to pay. D pleaded in their answer that performance of the work, as condition precedent to
payment, was not undertaken. P replied that they tendered themselves ready and willing to complete the said work, but they were
prevented from performing the work. D demurred to the reply: the ground in the P’s right of action in the reply was a clear departure
from their complaint.
Issue: WON the grounds for the claim in Ps reply is distinct from that in its original complaint. Yes
Held: The reply was not a fortification of their original position. P assumes ON EACH that he has a condition to perform as a
precedent to recover compensation (and each condition precedent are distinct from each other). The performance of such a
condition and an excuse for not performing it are matters so distinct that a good pleading should aver which one P relies.

6. Formal requirements of pleadings

a. Rule 7
Rules of Court, RULE 7
Sec. 1. Caption.
The caption sets forth the name of the court, the title of the action, and the docket number if assigned.
The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in
subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication
when there are other parties.
Their respective participation in the case shall be indicated.
Sec. 2. The body.
The body of the pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and
the date of the pleading.
(a) Paragraphs. - The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily
identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with
convenience. A paragraph may be referred to by its number in all succeeding pleadings.
(b) Headings. - When two or more causes of action are joined, the statement of the first shall be prefaced by the words "first
cause of action," of the second by "second cause of action," and so on for the others.
When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they
shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on;
and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by
words to that effect.
(c) Relief. - The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as
may be deemed just or equitable.
(d) Date. - Every pleading shall be dated.

Sec. 3. Signature and address.


Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not
be a post office box.
The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge,
information, and belief there is good ground to support it; and that it is not interposed for delay.
An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied

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if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an
unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to
promptly report to the court a change of his address, shall be subject to appropriate disciplinary action.
Sec. 4. Verification.
Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by
affidavit.
A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct
of his knowledge and belief.
A pleading required to be verified which contains a verification based on "information and belief," or upon "knowledge,
information and belief," or lacks a proper verification, shall be treated as an unsigned pleading.
Sec. 5. Certification against forum shopping.
The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or
in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any
action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been
filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.

 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.
 Which is more important, the body or prayer for relief? Body, bec relief may be granted even if not prayed for. But relief is also
important because it determines the upper limit of relief when defendant is in default
 Unless required, pleadings need not be under oath, verified, or accompanied by an affidavit. All pleadings in Revised Rule on
Summary Procedure should be verified.

CASE:
BUSINESS GUIDES v CHROMATIC COMMUNICATION ENT (1991)
Business Guides sued Chromatic for copyright infringement. Along with its lawyer, it signed the TRO application. It turned out later
that Chromatic had not infringed at all, and that Business Guides had failed to conduct a proper inquiry.
Held:
Rule 11 of Federal Rules of Civil Procedure provides that signature of an atty or party on a paper filed constitutes the signer’s
certification, based on a reasonable inquiry, that the paper is well grounded in fact. SC held that it applies to any party, even if the
signature is not required and is only voluntary.
The essence of Rule 11 is that signing is no longer a meaningless act; it denotes merit. A signature sends a message to
the district court that this document is to be taken seriously.

7. Detail in pleading
a. Rule 8, Secs. 1-9; Rule 12 Rules of Court, RULE 8
Sec. 1. In general.
Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the
party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely
stated.
Sec. 2. Alternative causes of action or defenses.
A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or
defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if
made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative
statements.
Sec. 3. Conditions precedent.
In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient.
Sec. 4. Capacity.
Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or
the legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue
as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by
specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

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Sec. 5. Fraud, mistake, condition of the mind.


In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice,
intent, knowledge or other condition of the mind of a person may be averred generally.
Sec. 6. Judgment.
In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.
Sec. 7. Action or defense based on document.
Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or
document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit,
which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading.
Sec. 8. How to contest such documents.
When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as
provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the
adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an
oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an
order for an inspection of the original instrument is refused.
Sec. 9. Official document or act.
In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in
compliance with law.

 Denial must be specific and verified when there is allegation of usury and when action is founded on actionable document
 Genuineness and due execution of actionable doc deemed admitted unless specifically denied under oath; but does not apply
when adverse party is not party to the doc or when compliance with an order for inspection of the original is refused. But
evidence on whether entered through fraud or no consideration are not matters of genuineness and due execution.
 Detailed specific denial with supporting particulars: for denial of legal capacity to sue.

Rules of Court, RULE 12


Sec. 1. 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 averted 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. (1a)
Sec. 2. Action by the court.
Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or
grant it outright, or allow the parties the opportunity to be heard.
Sec. 3. Compliance with order.
If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (l0) days from notice of
the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the
court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party.
Sec. 4. Effect of non-compliance.
If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading
or the portions thereof to which the order was directed or make such other order as it deems just.
Sec. 5. Stay of period to file responsive pleading.
After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party
may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be
less than five (5) days in any event.
Sec. 6. Bill a part of pleading.
A bill of particulars becomes part of the pleading for which it is intended.

CASES:
BACOLOD MURCIA MILLING v FIRST FARMERS MILLING CO (1981) 103 SCRA 436
Bacolod sued First Farmers and Sugar Admin for transferring a sugar quota allotment to First Farmers. After answers, Bacolod filed
amended complaint impleading PNB and NIDC as new defendants, for extending loans to First Farmers to assist in the illegal
creation of said mill.
Held:
Complaint must contain a concise statement of the ultimate constituting a cause of action. Ultimate facts are impt and
substantial facts which either directly form the basis of the plaintiff’s primary right and duty, or directly make up the wrongful acts or
omissions by the def.
Test of sufficiency of facts alleged: WON the Court could render a valid judgment as prayed for, accepting as true the
exclusive facts set forth in the complaint.

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Amended and Supplemental Complaint fails to meet the test. Assistance in illegal act was not supported by well-pleaded
averments of facts on how they had notice of its illegality or how the acts were done. Such bare statement if a mere conclusion of
law not sustained by declarations of fact. Amended Complaint dismissed, without prejudice to issues in main case.

NICHOLS v NICHOLS (1896)


Wife sued husband’s relatives for “wickedly and maliciously acting together, with malicious intent” to induce her husband to leave
her. Demurrer for not detailing the facts which caused the husband to leave her.
Held:
A statement of mere legal conclusions is not sufficient and on the other hand, a detailed statement of the evidence is not
required. Issuable facts = those upon which a material issue can be taken. Evidential or probative facts = shouldn’t be stated; upon
which a material issue cannot be taken, and from which issuable facts can be inferred.
The allegations must be those of the principal, determinate, constitutive facts, upon the existence of which, the entire
cause of action rests.
Ultimate fact which is constitutive of the cause of action in this case is that of wrongfully inducing husband. It is not a
conclusion of law, but a fact from which a legal conclusion is to be drawn. The methods adopted are mere matters of evidence, from
which the ultimate fact is proved, or may be inferred.

BUSH v SKIDIS (1948)


Complaint that Skidis negligently operated an automobile and hit a pedestrian, causing automobile with great force and violence to
strike and collide with plaintiff. Skidis moved to make the complaint more definite by specifying the negligence on which the plaintiff
relies.
Held
District courts have ruled that general charge of negligence was sufficient. New rules of civil procedure restrict the
pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the prep for trial.
However, since party making the charge of negligence could be required to set forth in answers to interrogatories or
requests for admission the specific acts of negligence relied on, why not let this info be set forth in pleadings? => will lead to
fairness. To force party charged with negligence to resort to discovery process or pretrial conference to learn the issues of the case
means delay and added expense.

MATTER OF HERLE (1935)


18 persons claimed right to estate of Herle, a wealthy recluse. A certain Carl Flickinger applied to compel all those who answered or
appeared to furnish bills of particulars relating to their claimed kinships to the decedent.
Held:
General underlying theory of this pleading is to particularize the issues in litigation by making the pleadings certain and
apprising the opponent of the nature of the proof he will have to meet, thus avoiding surprise. Purpose of Bill of Particulars: to aid
and assist parties and the court in arriving at a just result, transforming the trial from a mere game of wits into a determination on the
merits.
Since trial is merely a determination of the relative merits of the issues raised by the pleadings, the obj of bill of particulars
is not the facts as they may actually exist, but as they are claimed by the party from whom particularization is being sought.
Grant of addl particulars is in the discretion of the court.
Every pleading must contain a statement of facts upon which the pleader relies to establish his contentions. Mere
allegations of conclusions, whether of law or fact, are insufficient. When pleading contains conclusion and not facts, remedy is bill of
particulars.
Pleadings at fault bec they fail to allege the essential facts necessary to establish a right to share in the prop.

RASBERG v MUTUAL LIFE INSURANCE CO (1903)


Rasberg is beneficiary of life insurance. He furnished due proofs of death. Insurer required a death claim receipt to be signed by
Rasberg and Moses. Moses refused and asserted his own claim to the prop by an alleged assignment to him by the insured.
Rasberg answered that assignment was by force and fraud, and that if there was indeed an assignment, it was merely intended as
collateral for a loan which had already been fully paid. Demurrer to complaint on basis that averments were inconsistent.
Held:
Right of plaintiff to allege alternative grounds bec usually by fault of the defendant, the plaintiff does not know which of two
absolutely inconsistent grounds he may succeed in proving.
Alternative averments are not subj of demurrer. Remedy is to make the pleading more definite and certain.

8. Amended and supplemental pleadings


Rule 10.
Sec. 1. Amendments in general.
Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name
of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may
speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner.
Sec. 2. 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 (l0) days after it is served.
Sec. 3. Amendments by leave of court.

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Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave
may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters
provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be
heard.

Sec. 4. Formal amendments.


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.
Sec. 5. Amendment to conform to or authorize presentation of evidence.
When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but
failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if
the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a
continuance to enable the amendment to be made.

Sec. 6. Supplemental pleadings.


Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading
sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the
supplemental pleading.
Sec. 7. Filing of amended pleadings.
When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by
appropriate marks, shall be filed.
Sec. 8. Effect of amended pleadings.
An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received
in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended pleading shall be
deemed waived.

 Remember, no new summons needed if complaint amended bec defendants still the same. New copy of entire
pleading to be filed.
 MTD after complaint instead of answer. MTD is not responsive pleading so can still amend as matter of right

CASES:
KERAMIK INDUSTRIES v GUERRERO (1974)
P Keramik obtain a P2.4 M loan from D GSIS secured by mortgage on real properties used in its ceramic business. P defaulted, D
foreclosed mortgage and was the highest bidder: debt P3.46 M, sale P5.13M. P filed action to nullify extrajudicial foreclosure due to
irregularities. In the alternative, P asks for the difference between the proceeds and the debt. GSIS answered. After 2 years, P files
motion to amend complaint: P insured with GSIS properties for P2.4M, which was an add’l security for the loan. P claims that it
inadvertently failed to mention that typhoon Yoling damaged the properties. Therefore, the proceeds should also be applied to the
debt. D opposed: the amendment altered P’s CoA by injecting “new, distinct, and foreign CoA”. CFI sustained D.
Issue: WON amendment should have been allowed. Yes
Held: P’s alternative coa is predicated on the premise that D should not enrich itself unjustly at P’s expense: the excess of the bid
price over the debt should be remitted to P. The allegation in the amended complaint did not change at all P’s theory of the case and
did not introduce a new coa. The 2 coas are identical verbatim at literatim. The new matter merely reinforced, amplified or enlarged
P’s alternative coa for the recovery of surplus. Otherwise, P would file a separate action repugnant to the policy of discouraging
multiplicity of suits; it would amount to splitting coa.

R&B Surety & Ins. Co., Inc. v. Savellano (1985)


P Investor’s Finance Corp. filed complaint for collection of payment of promissory notes worth P2.9M against D Rassagi and R&B
Surety. Complaint alleged: Rassagi obtained credit from Citiwide Motors, which assigned the promissory noted to P, with R&B as
surety. Rassagi’s answer: obtained direct loan from P intended for purchase of trucks from Citiwide. R&B submitted the same
defenses. However, R&B discovered that the trucks were not yet delivered to Rassagi. It filed amended answer: admit issuance of
surety bonds to citywide for the credit facilities evidenced by prom notes. But assignment to P was a charade since citiwide had no
rights over the bonds since no trucks were actually delivered-resolutory condition.
Issue: WON R&B’s amended answer should have been admitted and CFI should not have rendered summary judgment. Yes
Held: The amendment which alleges that the 14 trucks were not actually delivered to D Rassagi did not alter the theory of their
defense which is: THAT THEY ARE NOT LIABLE TO P. Justice and equity allows the amendment for if proven, they would negate
liability of D, a fact which may no longer be ventilated. The right of D to prove that they are not liable are more important than the
change in theory or delay in the proceedings which is only at the pre-trial stage. Courts should be liberal in admitting amendments to
avoid multiplicity of suits so that real controversies are presented (Sedeco v. CA). If purpose of amendment is to submit real matter
in dispute w/o intent to delay, court may allow amendment.

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Blair v. Durham(1943)
P Nelle Durham is stenographic clerk of US Court Building. While at work, she was struck and injured by a heavy piece of timber
which fell from a scaffold. D Algernon Blair is the contractor. Original complaint: Ds employees negligent in the use of scaffold.
Amended: negligent manner in which the scaffold was erected.
Issue: WON the amendment stated a new cause of action. No
Held: a coa is the unlawful violation of a right or the failure to discharge a duty. The variety of facts alleged does not establish more
than one coa so long as their result is a violation of one right by a single legal wrong. There’s no new coa in the amendment so long
as the coa alleged grows out of the same transaction and is basically the same or is identical in the essential elements upon which
right to sue is based upon, and upon which Ds duty to perform is alleged to have arisen. Test: won the proposed amendment is a
different matter or the same matter more fully or differently laid.

Elliott v. Mosgrove
P is the successor of D Thomas Mosgrove as trustee of the bequest of William Mosgrove. P filed complaint to collect or recover the
res of the trust: $5,300 deposits in Ds account. In her original complaint averred that D collected in full the notes receivable of the
trust and deposited it in the account. D answered that the account is not made up of the frund from the trust. P amended her
complaint by stating that D had plenty of opportunities to collect.
Issue: WON the amendment of Ps complaint substantially changed the coa in the original complaint. No
Held: The amendment did not aver facts showing that P was entitled to pursue 2 possible remedies but merely averred facts in
alternative form. There could only be one remedy depending upon which alternative was true. The amendment related to the same
transaction that constituted the subject matter of the complaint. Test: WON the amendment will facilitate the convenient, efficient
dispatch of the business before the court.

Cartwright v. Ruffin
P filed complaint for collection upon a note with D. The original defense was a general denial: under oath, it questioned the
execution and delivery of the note. The amended answer: P while acting in the fiduciary capacity as agents of D, induced D to
execute the note and act to D’s disadvantage and injury.
Held: Greater liberality exists in allowing amendments to answers than in amending complaints, to the point of allowing entirely diff
defenses. Plaintiff may always, in the absence of a counterclaim or cross-complaint, dismiss his action and begin anew. But if def
pleads an ineffective or insufficient defense, not allowing amendment may be drastic penalty for inadvertence or mistakecourt did
not rule on the issue but reversed on another ground; it however found the amendment unusual.

Southern Pacific Co. v. Conway


P Southern Pacific seeks to have case remanded to allow supplemental complaint setting forth subsequent occurrences. These
occurrences are: the institution of proceedings by D as Atty Gen against P- for violating Train limits law with respect to freight trains
and passenger trains.
Held: If P seeks for declaratory judgment beginning anew, the pendency of the suit would support the conclusion that a justiciable
controversy was present; but it does not follow that these occurrences subsequent to the judgment may properly be presented by a
supplemental complaint. P assumes that since these would have been admissible as evidence had they occurred before trial, they
are therefore appropriate facts for a supplemental complaint. but the office of a pleading is to state ultimate not evidentiary facts.
The office of a supplemental complaint is not to set forth newly discovered evidence justifying a new trial but to bring new facts
which will enlarge or change the kind of relief to which P is entitled.

Remington Industrial Sale Corp. v. CA (2002)


P Remington files action for breach of contract against Industrial Steels as principal D with Ferro Trading and British Steel as
alternative Ds. BS moved to dismiss: failure to state coa. Pending certiorari proceedings on mtd before the CA, P filed motion to
amend complaint.
Issue: WON dismissal for failure to state coa was proper despite Ps exercise of right to amend under R10.2. or WON complaint can
still be amended as a matter of right before answer has been filed even if there was a pending proceeding before the higher court.
YES
Held: D has not yet presented any defense that can be altered or affected by the amended complaint. D still retains the unqualified
opportunito to address the allegations against him. The right of P to amend complaint is not precluded by the filing of a mtd or any
other proceeding contesting its sufficiency. Otherwise, the right in R 10.2 would be rendered nugatory and ineffectual: all that D has
to do to foreclose this material right is to challenge the adequacy of the complaint before he files his answer.

Superclean Services Corp. v. CA(1996)


P Superclean filed a complaint against D HDMF for mandamus/certiorari with preliminary injunction for refusal of D without just
cause to award the janitorial contract for 1990 to P, the lowest bidder. Mandamus: to recognize P as the qualified bidder. D was
allowed to hire janitors on a month-to-month basis. In 1991, P moved for admission of supplemental complaint: since 1990 has
passed, case is moot and academic. Instead of pursuing mandamus, P sought for payment of damages.
Issue: WON motion should be admitted. Yes but not as supplemental pleading.
Held: under R 10.6 the transaction, occurrence, or event happening since the filing of pleading must be pleaded in aid of a party’s
right or defense. Here the supervening event is not invoked for that purpose but to justify the new relief sought. The supervening
event was cited not to reinforce original demand but to say that demand could no longer be enforced thus justifying P in changing
relief sought to damages. Thus, the remedy was not to supplement, but amend its complaint. The new relief sought is actually an
alternative remedy to which P is entitled from the start. The Supplemental Complaint should simply be treated as embodying
amendments. There was no change in the theory of the case, the cause of action is one and the same. No unfairness, not moot.

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9. Periods for pleadings

a. Rule 11; Rule 22

Rules of Court, RULE 11


Sec. 1. Answer to the complaint.
The defendant shall file his answer to the complaint within fifteen (l5) days after service of summons, unless a different period is
fixed by the court.
Sec. 2. Answer of a defendant foreign private juridical entity.
Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by
law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity.
Sec. 3. Answer to amended complaint.
Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (l5) days
after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the
order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed.
This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.) party
complaint, and amended complaint-in-intervention.
Sec. 4. Answer to counterclaim or cross-claim.
A counterclaim or cross-claim must be answered within ten (l0) days from service.
Sec. 5. Answer to third (fourth, etc.)- party complaint.
The time to answer a third (fourth, etc.)- party complaint shall be governed by the same rule as the answer to the complaint.
Sec. 6. Reply.
A reply may be filed within ten (l0) days from service of the pleading responded to.
Sec. 7. Answer to supplemental complaint.
A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different
period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or
supplemental answer is filed.
Sec. 8. Existing counterclaim or cross-claim.
A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein.
Sec. 9. Counterclaim or cross-claim arising after answer.
A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the
permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment.
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.

Rules of Court, RULE 22


Section 1. How to compute time.
In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day
of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included.
If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits,
the time shall not run until the next working day.
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.

 MTD –If denied, file answer within balance of the period prescribed by the rule, but not less than 5 days in
any event, computed from receipt of the denial (R16, S5)
 Upon service of bill of particulars or of a more definite pleadings, or after denial, can file responsive
pleading within period to which he was entitled, which shall not be less than 5 days in any event (R12, S5)

10. Filing and service of pleadings & other papers

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Rules of Court, RULE 13


Sec. 1. Coverage.
This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different
mode of service is prescribed.
Sec. 2. Filing and service, defined.
Filing is the act of presenting the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service
upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one
counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.
Sec. 3. Manner of filing.
The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the
original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first
case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of
motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry
receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of
the case.
Sec. 4. Papers required to be filed and served.
Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of
judgment or similar papers shall be filed with the court, and served upon the parties affected.
Sec. 5. Modes of service.
Service of pleadings, motions, notices, orders, judgments and other papers shall be made either personally or by mail.
Sec. 6. 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.
Sec. 7. Service by mail.
Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or
his counsel at his office, if known, otherwise at his residence, if known, with postage fully pre-paid, and with instructions to the
postmaster to return the mail to the sender after ten (l0) days if undelivered. If no registry service is available in the locality of either
the sender or the addressee, service may be done by ordinary mail.
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.
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.

Sec. 10. Completeness of service.


Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after
mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after
five (5) days from the date he received the first notice of the postmaster, whichever date is earlier.
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.
Sec. 12. Proof of filing.
The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to
have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a
copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a
full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage
fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered.
Sec. 13. Proof of service.
Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of
the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof
shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by
registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card
shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn
copy of the notice given by the postmaster to the addressee.

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Table 8: Third-Party Complaint v. Cross-claim


THIRD-PARTY COMPLAINT CROSS-CLAIM
* Seeks to recover form a non-litigant some relief in respect to * Claim by a party against a co-party.
the opposing party’s claim.
* Third party is not yet impleaded. * Cross-defendant is a co-party.

Table 9: Third-party Complaint v. Complaint in Intervention


THIRD-PARTY COMPLAINT COMPLAINT IN INTERVENTION
* Brings into the action a third person who was not originally a *Same
party.
* Initiative is with the person already a party to the action. * Initiative is with a non-party who seeks to join the action.

Amended Pleading v. Supplemental Pleading

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS


1. Amendments of pleadings may be made once as a matter of right:
a. At any time before responsive pleading is served
b. In the case of a reply, anytime within 10 days after service.
 Plaintiff may amend complaint as a matter of right even after defendant files a Motion to Dismiss, since the same is not a
“responsive pleading.”

2. Substantial amendments may be made only with leave of court, except as provided above.

3. An amended pleading supersedes the pleading that it amends but admissions in superseded pleadings may be received in
evidence against the pleader. (NOT judicial admissions anymore; thus, must be formally offered)
Claims and defenses alleged in original but not incorporated in the amended pleading shall be deemed waived.

Table 10: Amended v. Supplemental Pleading


AMENDED PLEADING SUPPLEMENTAL PLEADING
* Refers to facts existing at the time of the commencement of * Refers to facts arising after the filing of the original pleading.
the action.
* Take the place of the original pleading * Taken together with the original pleading.
* Can be made as a matter of right as when no responsive * Always with leave of court
pleading has yet been filed

TIME TO PLEAD
A. In the following case, a party only has the balance of the period to file the necessary pleading:
 Appeal after denial of MNT/MR [Rule 40, 41]
B. In the following cases, a party is given the balance of the period, but not less than 5 days:

 Responsive pleading, after bill of particulars (Rule 12, Section 5)


 Answer, after denial of MTD (Rule 16, Section 4)
 Certiorari under Rule 65 for review of resolutions of COA/COMELEC, after denial of MNT/MR (Rule
64, Section 3)
 Answer, after denial of MTD in interpleader (Rule 63, Section 4)
C. In the following cases, a party is given a fresh period:

 Appeal after MNT/MR (15 days) [Rule 42, 43, 45]


 Certiorari (Rule 65) after denial of MNT/MR (60 days)
VI. MOTIONS
1. Rule 15; Rule 133, Sec. 7
Rules of Court, RULE 15
Sec. 1. Motion defined.
A motion is an application for relief other than by a pleading.
Sec. 2. Motions must be in writing.
All motions shall be in writing except those made in open court or in the course of a hearing or trial.
Sec. 3. Contents.
A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or
necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers.

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Sec. 4. Hearing of motion.


Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set
for hearing by the applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure
its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the
hearing on shorter notice.
Sec. 5. Notice of hearing.
The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which
must not be later than ten (10) days after the filing of the motion.
Sec. 6. Proof of service necessary.
No written motion set for hearing shall be acted upon by the court without proof of service thereof.
Sec. 7. Motion day.
Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is
a non-working day, in the afternoon of the next working day.
Sec. 8. Omnibus motion.
Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all
objections then available, and all objections not so included shall be deemed waived.
Sec. 9. Motion for leave.
A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted.
Sec. 10. Form.
The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other
matters of form.
Rules of Court, RULE 133
Sec. 7. Evidence on motion.
When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented
by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

2. BP 129, Sec. 16
BP 129, Sec. 16. Time and duration of sessions.
The time and duration or daily sessions of the Regional Trial Courts shall be determined by the Supreme Court: Provided,
however, That all motions, except those requiring immediate action, shall be heard in the afternoon of every Friday, unless it
falls on a holiday, in which case, the hearing shall be held on the afternoon of the next succeeding business day: Provided,
further, That the Supreme Court may, for good reasons, fix a different motion day in specified areas.

CASE:
CLEDERA v SARMIENTO (1971) 39 SCRA 552
Sarmiento et al were govt employees whose positions were abolished. They were allowed to present addl evidence after case
submitted for decision. Decision for Sarmiento. MR by Cledera (fiscal). Motion did not contain any notice setting the time, place and
date of hearing. MR allegedly defective because no notice of hearing filed by Cledera (petitioner).
Held:
If motion does not state time nor place of hearing, the court would have no way to determine whether that party agrees or
objects to the motion or to hear him on his objection. It is then a useless motion. Notice of motion to all parties is mandatory.
Since Fiscal failed to oppose MR of Sarmiento, he is already estopped from challenging the validity of said MR.
Since Fiscal’s MR did not contain notice of hearing, judgment for Sarmiento therefore became final and executory.

VII. OBJECTIONS TO PLEADINGS


1. Motion to dismiss
Rules of Court, RULE 16
Sec 1. Grounds
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;

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(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; and
(j) That a condition precedent for filing the claim has not been complied with.
The time and duration or daily sessions of the Regional Trial Courts shall be determined by the Supreme Court: Provided,
however, That all motions, except those requiring immediate action, shall be heard in the afternoon of every Friday, unless it
falls on a holiday, in which case, the hearing shall be held on the afternoon of the next succeeding business day: Provided,
further, That the Supreme Court may, for good reasons, fix a different motion day in specified areas.

 Note: Court can also dismiss motu propio for b, e, f. Defenses not pleaded are deemed waived except for b, e, f
101

 By defendant or by court motu propio (Rule 17, Sec 3)


1. PL fails to appear on date of presentation of evident
2. failure to prosecute for unreasonable length of time
3. Failure to comply with Rules or with any order of the court

a) Generally

CASE:
BORJE V CFI OF MISAMIS OCCIDENTAL (1979) 88 SCRA 576
P Atty. Dominador Borje, counsel for Ozamis water consumers who filed an action (1) against the water rates increase of D Misamis
Occidental Water District. P allegedly received “blank bills” from D, which he refused to pay. D cut his water service. For this act of
‘harassment” resulting in his “humiliation” P brought action (2) for damages with preliminary injunction before CFI Misamis
Occidental. D filed motion to dismiss: lack of jurisdiction because main complaint is within the field of special civil action or special
proceeding, and litis pendentia. CFI Judge Genato dismissed action (2) on the ground that there was no malice or bad faith in the
severance of water connection, and D already reconnected (moot and academic). P filed motion for recon, denied by the Jude
Ebarle.
Issue: WON CFI committed grave abuse of discretion in summarily dismissing action (2). Yes
Held: Dismissal of actions on grounds not alleged in the motion to dismiss is improper for the court, in so doing, dismisses an action
motu proprio without giving P a chance to argue the point and w/o receiving any arguments or evidence on the question. The real
cause for concern is the dismissal without affording P an opportunity to be heard despite the presence of factual issues that needed
to be proved. The issue won there is really failure to pay since he was sent a “blank bill”, is an issue of fact which requires
presentation of proof: if true, the demand did not contain requisite details – improper, even if demand sufficient, P still has 30 days to
pay.
Dismissal of an action upon a mtd constitutes denial of due process if from a consideration of the pleadings, it appears that there are
issues of facts which cannot be decided w/o a trial of the case on the merits.

 After filing of answer, can only file MTD if based on res judicata, insufficiency of allegations, and payment,
waiver, abandonment or extinguishment of complaint
 But remember that MTD is not responsive pleading, so can still have amendment of complaint after MTD

b) Want of jurisdiction

Rule 16, Sec. 1 (a) & (b) see above

c) Improper venue

Rule 16, Sec. 1 (c) see above

d) Want of legal capacity to sue

Rule 16, Sec. 1 (d)

 Plaintiff is not authorized to be party to a cause.


 If lack of standing to sue => failure to state cause of action

e) Litis pendentia (aka auter action pendant)

Rule 16, Sec. 1 (e)

101
Rule 9, Sec 1. Defenses and objections not pleaded in a MTD or in the answer are deemed waived. However, when it appears fr the pleadings or the evidence on record
that the court has no jurisdiction over the subj matter, that there is another action pending bet the same parties for the same cause, or that the action is barred by a prior
judgment or by the stature of limitations, the court shall dismiss the claim.

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 The other action must be in a court, not in an admin or quasi-judicial body


 Not required that the other pending action is filed first. Decide which case is more appropriate action.

CASES:
ARCEO v OLIVEROS (1985) 134 SCRA 308
P Pablo Arceo filed complaint before CFI Quezon against Ds Jose Oliveros and Rufina Cabangon alleging that P’s sister Sixta sold
to Ds her undivided interest in the inherited parcel of land, covered by a free patent title, for P2.5K without P’s consent, that being a
co-owner, he should be allowed to redeem property in accordance with Sec 119 of the Public Land Act. D moved to dismiss, denied.
D answered & reiterated grounds for dismissal by way of affirmative defense. CFI dismissed complaint on ground of lis pendens. It
appears that in another action filed by Ds to enforce the sale, P invoked as compulsory counterclaim in his answer the question of
redemption under S 119.
Issue: WON dismissal on the ground of lis pendens was in order. Yes.
Held: In the first case Ds impugn the extrajudicial settlement between Sixta and P, where Sixta renounced her right over the land,
and annul the TCT issued to P, basing their action on a Deed of Absolute Sale. In the 2 cases, the parties are litigating on the same
subject matter and on the same issues – validity of sale and right of compulsory redemption.
Lis pendens is usually interposed as a defense when another case upon the same cause of action between the same parties is
pending, but it may also be invoked even if the cause of action is set forth by way of counterclaim since a counterclaim partakes the
nature of a complaint by the D against a P.
To interpose a coa in a cc and again advance the same in a complaint against the same party would be violative of the rule against
splitting a cause of action (R2 S4).
P’s contention: if the first case does not prosper, and the sale is voided, the second case will be moot. But if the sale is upheld, then
the legal redemption sought in the 2nd case may lie. Untenable. Even if the sale upheld, the 2 nd case will still be useless because P
is not deprived from litigating against Ds the issue of redemption because he has set it up as a cc in that case.

Buan v. Lopez Jr. (1986)


Ps, 5 of the 130 vendors around Quiapo Church, filed a special civil action for prohibition to review order of the Manila Mayor for
revoking their license without due process of law, since Sec 171 of the Local Government Code authorizes revocation of license
only for violation of the law, ordinances, or conditions upon which they have been granted.
Issue: WON this petition should be dismissed for lis pendens. Yes
Held: It appears that there was filed in the RTC of Manila a special civil action for prohibition with prelim inj against Manila Mayor
filed by Samahang Kapatiran sa Hanapbuhay composed of 300 vendors, the President and PRO, as well as its members are the 5
Ps in the present suitt. The petition was grounded on the same facts. There exists identity of parties; there is also identity of rights
and relief prayed for, relief being founded on the same facts, such that any judgment rendered in the other action will amount to res
judicata. This is also condemnable as forum shopping and therefore warrants dismissal of both cases. The allegations of brainwash
by their counsel do not inspire belief. Furthermore, their licenses have expired thus Ps have no basis to postulate a right to ply their
trade. Case also moot, by the occurrence of acts sought to be inhibited.

f) Res judicata and statute of limitations

Rule 16, Sec. (1f); Rule 39, Sec. 47


Rules of Court, RULE 39
Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or final order, may be as follows:
(a) IIn case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to another, the judgment or final order is
conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of
the person; however, the probate of a will or granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate;
The time and duration or daily sessions of the Regional Trial Courts shall be determined by the Supreme Court:
Provided, however, That all motions, except those requiring immediate action, shall be heard in the afternoon of every
Friday, unless it falls on a holiday, in which case, the hearing shall be held on the afternoon of the next succeeding
business day: Provided, further, That the Supreme Court may, for good reasons, fix a different motion day in specified
areas.

 The binding or preclusive effect of judgment


 Judgment must be on the merits and by a court with jurisdiction
 In rem or in personam
Rules of Court, RULE 39
Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or final order, may be as follows:
(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any
other matter that could have been raised in relation thereto, conclusive between the parties and their
successors in interest by title subsequent to the commencement of the action or special proceeding,

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litigating for the same thing and under the same title and in the same capacity; and

 Aka bar by prior judgment- precludes matter directly adjudged or could have been raised
 Same parties, same cause of action

Rules of Court, RULE 39


Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or final order, may be as follows:
(c) In any other litigation between the same parties or their successors in interest, that only is deemed to
have been adjudged in a former judgment or final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or necessary thereto.

 Aka Estoppel by judgment or conclusiveness of judgment- precludes specific issues litigated or necessarily included
therein
 Same parties, diff causes of action

CASES:
OROPEZA MKTG V ALLIED BANKING CORP (2002)
R Allied Bank extended a P780K loan to P Oropeza Maktg Corp and Rogaciano and Imelda Oropeza. Ps executed PN and
spouses executed a continuing guaranty agreement binding themselves solidarily with the corporation for P840K. As additional
security, they executed a rem over their properties. P defaulted, R filed collection suit with prelim attachment (case 1). Meanwhile,
Ps executed deed of absolute sale with assumption of mortgage in favor of Solid Gold covering most of Ps real properties. R then
filed a complaint for annulment of sale (case2), and a separate criminal complaint for fraudulent insolvency, Art 314 RPC (case 3).
RTC ruled in favor of Ps in case 2, Rs appealed to CA. CA sustained RTC. RTC dismissed case 1 for litis pendentia. R appealed
this to CA which reversed RTC. Hence Ps filed this petition for review.
Issue: WON the decision of case 2 is res judicata “by prior judgment” against case 1. No
Held: Although there is identity of parties in as much as the rule does not require absolute but only substantial identity of parties,
there is no identity between the causes of action in the 2 cases. While the subject matter is the same, it does not necessarily mean
that there is identity of the coa. A coa is an act or omission of one party in violation of the legal right of another that cause injury to
the latter. In case 1, the coa was failure to liquidate obligation while in case 2, the coa was the violation of the mortgage agreement.
The test to determine identity of coa is whether the same evidence would sustain both coas: in case 1 R must prove existence of
loan and failure to comply obligation by P, in case 2, R must prove: existence of loan, loan secured by PN and REM, Ps failed to
pay, Ps sold properties with intent to defraud R. There is only “conclusiveness of judgment” which includes: the PN was spurious,
and the loan has been paid. Res judicata founded on principle that parties ought not to be permitted to litigate the same issue more
than once.

Williamson v. Colombia Gas & Electric Corp.(1950)


P Williamson filed 2 complaints for recovery against D Columbia, action 1: violation of anti-trust laws (Sherman Act) by Columbia
Gas in conspiracy with other parties. Action 2: violation of anti-trust laws (Clayton Act) by Columbia alone. Allegations: D, seeking to
crush out a competitor, acquired the controlling shareholder interest of P and proceeded to manipulate its affairs to P’s
disadvantage. When P went into receivership, D named and controlled receiver, final result: P was forced into bankruptcy. Case 2
was dismissed: barred by statute of limitations. D moved to dismiss Case 1 because of its victory in case 2.
Issue: WON the 2 cases are substantially identical.
Held: The presence of conspiracy allegations in case 1 does not change the substance of 2 claims. That one suit is said to rest on
the Sherman act and the other on Clayton act carries no weight. The fact that different statutes are relied on does not render the
claims different coa for purposes of res judicata. Although the 2 acts prohibits various things, here, the injury resulted from same
acts. The purpose of the requirement of separate counts is to clarify the issues and simplify the trial, thus the considerations in
determining what are separate coas for that purpose are not the same as those when the question is res judicata. The determination
of the meaning of “cause of action” for purposes of deciding whether a person has slept on his rights is of little aid in deciding
whether a prior judgment is a bar to the present action.
The acts complained of and the demand for recovery are the same. The only thing different is the theory of recovery. The same
witnesses and documents will be necessary in the trial in both cases.

Norwood v. McDonald
P James Norwood filed action against Ds estate administrator and Thomas McDonald to establish P’s title to certain property as
surviving spouse of the deceased owner, Ada McDonald. P claims that he was the common-law husband of deceased and therefore
the sole heir. D’s defense, res judicata: that P filed a former action claiming title to the same property on the argument that the
deceased held property in trust for herself and P, having furnished the consideration for the purchase of the property. That action
was dismissed for P’s failure to establish his case with required degree of proof.
Issue: WON present action is barred by judgment in former action under one or both of the doctrines of res judicata. No

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Held: There must be identity not only of subject matter but also of the cause if action. If it is doubtful whether a second action is for
the same cause of action as the first, the test generally applied is to consider the identity of facts essential to their maintenance, or
whether the same evidence would sustain both.
A point or fact actually or directly in issue in a former action and was there passed upon by competent court may not be drawn in
question in any future action between the same parties or their privies won the coa be the same. The answer of D McDonald in the
first action, that he is the sole heir at law of the decedent, did not state operative facts but mere conclusions, were not responsive to
any allegation, and were not made the basis of any answer or relief. D prayed for dismissal and filed no cross-petition to establish
his title, offered no evidence. The action was dismissed for failure of P to establish his case with degree of proof required by law.
There is therefore no res judicata that D was the sole heir at law of decedent. The determination of that issue was not necessary in
determining the validity of P’s coa.
P’s claims in the “trust action” and the “ejectment action” do not constitute a single but 2 distinct coa. The chief tests are: do the 2
suits involve the same claim or demand? Even though there be identity of subject matter, is there id of coa, i.e., id in the investitive
facts which create the right of action asserted in each suit? Is the same evidence necessary to sustain each coa? Did the claims or
rights of action vest or accrue at the same time? In each, the answer is in the negative. (Id of proof is the most accurate test.) P’s
right in the trust action accrued during Ada’s lifetime, while his right under the 2 nd action arose upon her death. The 1 st action is
conclusive as to the nonexistence of a trust but is not a bar to the existence of an inheritable right of P. The latter issue was not
made, was not under consideration, was not litigated and was not determined in the trust action.

Cromwell v. County of Sac.


P Charles Cromwell brought an action against the D Country of Sac, on 4 $1000 bonds, and their attached $100 interest coupons.
The bonds, totaling $10,000 for the erection of a courthouse, issued in 1860, were payable to bearer on 1868-1871. D’s defense:
estoppel of judgment rendered in favor of D in a prior action on the same bonds (as to the 25 of the interest coupons) by Samuel C.
Smith, allegedly brought in behalf of P as real party in interest. It appears in the original action of Smith, that the bonds were
delivered to Meserey, the contractor for the courthouse. Upon receipt, Meserey gave one bond as gratuity to the judge, but the
courthouse was never constructed. M acquired bonds before maturity, but no finding that he gave value for them.
Issue: WON P is estopped by the judgment in the prior action. No.
Held: There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon
the same claim or demand, and its effect as an estoppel in another action between the same parties upon a dif claim or coa. In the
former, the judgment is an absolute bar to a subsequent action: it is a finality not only as to every matter which was offered and
received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for the
purpose. In the latter: estoppel operates only as to those matters in issue or points controverted. But this does not preclude a party
in a subsequent suit, on a dif coa, from availing himself from a ground for recovery which he neglected to bring forward in the prior
action.
In the first suit, it was held that there was fraud and illegality in the inception of the bonds, that the bonds were void as against the
County as to those who did not acquire them before maturity and give value for them. These findings must be held to estop P from
averring to the contrary. But as the bonds were negotiable instruments, they would be held as valid obligations against the County in
the hands of a bona fide holder taking them for value before maturity. Therefore P should have been permitted to prove that fact.
There was nothing adjudged in the former action in the finding that Smith had not made such proof in that case which can preclude
P from making such proof here.
(But were there no identity of parties and coas in the 2 actions? No, the coa in the present case are the bonds themselves, which is
different from the coupons; the cllaim that P paid value before maturity was not exactly litigated in the first suit.)

Sawyer v. First City Financing Corp.


In May 1974, P Sawyer sold 32 acres of land to First City Financial Associates (FCFA), subsidiary of First City Financial Corp
(FCFC), for $1.18 M- $510K cash, $670K note secured by a deed of trust (subordinate; on the realty). FCFA committed to borrow
$1.8 M development loan from Toronto Development Bank (the Bank), guaranteed by FCFC, secured by a first deed of trust on the
realty. In 1975, FCFA discontinued payments asserting that it could not proceed developing the land as construction bids it received
were excessively high. It still owed $900K. The Bank commenced extrajudicial foreclosure, purchased at a bid of $650K but
ultimately transferred to Lexington Properties Inc. a corporation owned by Richard Ehrlich (RE), for $800K. RE obtained funds from
Lomitas Properties Inc., controlled and funded by FCFC. P’s view of the practical effects of these transactions: FCFA’s obligation is
wiped out, since the note is non-recourse, but FCFC is able to develop or sell the land, through a puppet corp through a secret
transaction w the bank, w/o having to pay the price therefor to P.
Sawyer 1 (July 1975): Ds – FCFA, FCFC, another FCFC subsidiary, the Bank. Several coas based on contractual theories: Land
Acquisition and Development Loan Agreement between FCFA and the Bank. P claims to be 3 rd party beneficiaries and damaged by
FCFA’s default. It was not simply a breach of contract but breach of “contractual duty of good faith and fair dealing.” Separate coa
asks for declaratory relief w respect to contractual commitments, and a final coa seeks judicial foreclosure of the note. The
judgment, which became final, found waiver by P of their right to deficiency judgment valid and effective and held in favor of Ds.
Sawyer 2 (January 1978): A “complaint for damages based upon conspiracy and fraud,” aside from the Ds in S1, RE,Lexington,
Lomitas, and a number of officers of the FCs and the Bank, were added as Ds. 3 of the coas are based upon the alleged
conspiracy: the default, the sham sale, and others. 4th coa: alleged interference with contractual relations. P’s counsel promptly
moved for consolidation with and continuance of S1 which was opposed by Ds arguing that the issues and coas of S2 were dif.
Court ruled against P’s motion. The Bank and its officers, in 1980, moved for summary judgment in S2 on the ground of res judicata
of S1 and upon written release executed for the Bank in S1. The Judge granted motion for the Bank only, not upon res judicata but
on the waiver. In May 1980, the FCs filed a separate motion for summary judgment on the ground that S1 was res judicata to the
issues in S2 – that P split their coa by attempting to relitigate the same issues in a second lawsuit. Bank officers joined motion. The
Judge ruled in Ds’ favor.

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Issue: WON S1 is res judicata on S2. No.


Held: A single coa cannot be split and made subject of separate suits. If a primary right is split, determination of issues in the first
suit will be res judicata to an attempt to relitigate them in the 2 nd suit. But where the P has several coas, even though they may arise
from the same factual setting, and even though they might have been joined in one suit under permissive joinder provisions, the P is
privileged to bring separate actions based upon each separate cause.
A “cause of action” is conceived as the remedial right in favor of a p for the violation of one “primary right.” That several remedies
are available for violation of one “primary right” does not create additional “causes of action.” A given set of facts may give rise to
the violation of more than one “primary right” thus the potential of 2 separate lawsuits against 1 D. for instance, the primary right to
be free from personal injury has been construed as to embrace all theories of tort which might have given rise to the injury. But the
right to be free from the particular unlawful conduct – the resultant (1) injury to person and (2) damage to property – has been
deemed creative of separate coas (coas may therefore be counted in terms of the number of separate injuries, not number of
remedies for 1 injury).
A failure to sustain the first action on contractual grounds is held to bar a subsequent action based upon fraud – suggesting that the
primary right, in this case, is to have the note validated and this gives rise to only one coa, whether it be framed in contract or tort.
This case is not one in which the same factual structure is characterized in one complaint as a breach of contract and in another as
tort (if the same factual structure is used, is there res judicata? I think so, the factual structure is the basis of the coa, e.g. based on
the same contract as in Steiner, though the basis for relief whether on contract or tort is different, or based on a single wrongful act
as in Rush).
S1 is solely on contract and is based upon the note, deed of trust, and loan and development agreement. At trial, the principal issue
was the effectiveness of the waiver of deficiency judgment and this issue was presented in the context of contractual theories. There
was no contention of fraud, misrepresentation, or tort. The basis of S2 is completely different and rests upon a completely separate
set of facts: it assumes that the waiver and subordination are valid and highlights conduct alleged to be tortuous i.e. the agreement
to conduct a sham foreclosure sale. Surely, one’s breach of contract by failing to pay a note violates a primary right which is
separate from the primary right not to have the note stolen.

Rush v. City of Maple Heights


P Lenore Rush filed an action to recover damages for personal injuries resulting from a fall while riding on a motorcycle over a street
in D City of Maple Heights. P alleges that D was negligent in failing to keep Shcreiber Road in good repair and free from nuisance,
in suffering large holes, bumps and dips to exist, and in failing to erect warning signs giving notice of the dangerous conditions of the
road. P alleges that she has filed prior action for damage to personal property arising out of the same incident, which was decided in
her favor ($100 damages). P claims res judicata on the issue of D’s negligence and filed motion for trial on the issue of damages
alone. The lower court ruled in P’s favor, hence D’s appeal arguing that P split her coa, claiming twice on the same single accident.
Issue: WON P split her coa. Yes.
Held: Where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single coa
arises, the different injuries occasioned thereby being separate items of damage from such act. As Judge Coleridge put explains: it
would be a subtlety not warranted by law to hold that a man cannot bring 2 actions, if he is injured in his arm and in his leg, but can
bring 2, if besides his arm and leg, his trousers and his coatsleeve have been torned. Vasu case, except par 4, is still good law: an
insurer has the right to bring a separate action to recover in its own name; the insured does not lose his right of action to recover for
the injuries to his person by accepting from the insurance company the amount for which it is liable to him.

The Evergreen v. Nunan


The Evergreens, a cemetery company doing business by selling burial lots, files this petition to review order of Tax Court
redetermining assessment of D Internal Revenue Commissioner Joseph Nunan. The issue is the computation of its “gains”: as to
the basis of the amount to be deducted from “amount realized.” P sells fully and partially improved lots. As to the former, the Tax
Court allowed as basis $1.55 per square foot and held that D is estopped, as regards this basis, by a finding by the Bureau of Tax
Appeals in an earlier proceeding. But the Tax Court refused to use as basis for the latter by deducting from the basis of the fully
improved lots the cost of fully improving the partially improved lots.
P’s position: “gains” from pi lots = amt realized (sales) – basis of pi lots (cost of sales)
basis of pi lots = basis of fi lots – costs of improving pi lots (to make pi into fi)
Instead, the TC appraised the value of the pi lots from evidence taken in the proceedings. P contends that D is estopped by the
BTA’s findings: that the basis of fi lots is an indisputable premise to infer the value of the pi lots, and that the value of the pi lots was
used as a necessary step in finding the value of the fi lots.
Issue: WON D is estopped as regards the value of pi lots. No.
Held: There are 2 kinds of facts – ultimate facts are those upon whose occurrence the law raises the duty or the right in question; a
mediate datum is from whose existence may be rationally inferred the existence of ultimate facts. As there is a dearth of authority
upon the issue, we hold that, even assuming arguendo that “mediate data” in the first suit conclusively establish “ultimate” facts in
the second, no facts decided in the first suit, whether ultimate or mediate, conclusively establishes any “mediate datum” in the
second, except an “ultimate fact” in that suit, i.e. res judicata of prior judgment applies only to ultimate facts in a case. The basis for
fi lots cannot be used as res judicata since it is merely a mediate datum from which the basis of pi lots may be inferred. (The logic
for this is that a mediate data in a suit, though conclusively established by a prior judgment, cannot be res judicata to decide the
outcome of the suit, other evidence must be considered. Whereas, if an ultimate fact is established, the suit is already barred by
such finding).

Bernhard v. Bank of America


Clara Sather lived with Mr and Mrs Charles Cook. In October 1933, CS signed by mark an authorization to transfer from Security
First Nat’l Bank of LA the balance of her savings ($4,155) to the First National Bank of San Dimas, which CC withdrew and

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deposited in his conjugal account, first in San Dimas Bank, then in a LA Bank. Cook, as executor, filed an account before the
probate court with his resignation, which made no mention of the transfer. The beneficiaries under CS’ will objected to the account,
but the pc held that CS made a gift to CC. P Helen Bernhardt, administratrix of CS’s estate filed this action against D Bank of
America (formerly First National Bank of San Dimas) to recover deposits from withdrawals from the decedent’s account in Security
First Nat’l Bank of LA. D’s defense: transfer authorized, and res judicata. Trial court upheld D. P appeals: doctrine of res judicata
does not apply because D was not a party, nor privy, to the prior action, and there is no mutuality of estoppel.
Issue: WON D can invoke res judicata by prior judgment. Yes
Held: Res judicata is available against the same parties, or their privies, and there is mutuality of estoppel. A party is one who is
directly interested in the subject matter, and had the right to make a defense, control the proceeding, and to appeal the judgment. A
privy is one who, after judgment, acquired an interest in the subject matter affected by the judgment through or under one of the
parties, as by inheritance, succession, or purchase. There is mutuality of estoppel if one taking advantage of a prior adjudication
would have been bound by it had it gone against him.
Mutuality and privity are not necessary where the liability of D asserting res judicata is dependent upon or derived from the liability of
one exonerated in an earlier suit brought by the same plaintiff upon the same facts. Three requisites: there is identity of issues,
judgment on the merits, and the party against whom rj is asserted a party or in privity with a party to the prior adjudication. P, though
in a different capacity (from beneficiary to administratrix) was party to the former proceeding as she represents the very same
persons and interests that were represented in the prior proceeding.

Koehler v. Holt Manufacturing Co.


George Chapman ordered in writing D Holt Mfg. Corp. to pay P Koehler, out of the money due to GC, $25 per month to be applied
upon the purchase price of the land bought by Kate Chapman (GC’s wife) from P. D complied from Jan 1901-Jan 1902 when GC
revoked his order. P filed suit to recover $325, balance for May 1902-June 1903. D’s answer: P is barred by prior judgment in D’s
favor in an action bought by P for the Jan-April 1902 installments.
Issue: WON P is estopped by prior judgment. Yes.
Held: True, the prior judgment was not rendered on a suit to recover the same installments, and it is not technically a bar to the
present action. But D relied upon the same defense, the revocation of the order, which was held valid so as to abrogate D’s liability.
The case comes clearly within the principle (estoppel by judgment) that a judgment operates as an estoppel to preclude the parties
and privies from contending to that point or matter of fact which, having been distinctly put in issue by them, has been on such
issue, solemnly found against them.

Rew v. Independent School District


P Rew files this action to recovert amount due on 10 negotiable bonds issued by D district township of Sioux City (now Independent
School District) for $1K each, payable to the order of Ogilvie Tredway. D’s defense: though the bonds purport to refund valid
indebtedness of D, fact is, D’s debt is less than $1K, and that no proceeds were used to pay such debt. P’s reply: D is estopped
from averring the same defenses interposed in a prior action on certain interest coupons attached to the bonds where judgment was
held in P’s favor. D contends that there are 3 elements in this case which were not in the case on the coupons decided in the federal
court: notice to the purchaser, failure of consideration, and unconstitutionality of the statute under which the bonds were issued.
Issue: WON D is estopped from averring the same defenses. Yes.
Held: The decision of a court having jurisdiction of the parties and subject matter is conclusive in another court in an action between
the same parties, not only as to the same coa, but as to other coa involving the right or title asserted and the defenses interposed in
the court in which such decision was rendered. The binding effect of the previous adjudication limited to those matters which are
expressly determined in the final judgment, but it covers also matters collaterally involved, which are necessarily determined in
reaching the final judgment.
P, in this case, questions the constitutionality of issuing bonds the proceeds of which were not actually used to extinguish valid
indebtedness. But this question was presented in the action on the coupons, and was necessarily determined by it. The first 2
elements were also presented, wherein it was held that these were immaterial because D was estopped by the recital in the bonds
that they were issued in pursuance of the refunding statute, and that the a resolution was passed by the board of directors of D
which is referred to in the bonds declaring the existence of judgments against D for the payments of which the bonds were
authorized to be issued.
D contends that the conclusion of the fc as to the recital of the bonds was a mere conclusion of law, not as determination of a
question or fact, therefore not binding in a subsequent case. It is not the finding of facts which constitutes an adjudication, but it is
the conclusions of the court as to the effect of those facts determined as matter of law. It is the determination of the issues
presented which constitutes the adjudication. The dispute between the parties may be as to the fact, or as to the law, or both, but
the judgment is conclusive as to the entire matter involved. The fc decided that the recitals in the bonds estopped D from showing
by way of defense that there were no valid judgments to be extinguished by the proceeds of the bonds. It therefore determined that
the coupons constituted valid indebtedness notwithstanding the falsity of the recitals.

Womach v. City of St. Joseph


P William Womach sued D City of St. Joseph for $10K damages, in that he had been deprived of society, companionship, and
services of his wife Louisa, was compelled to spend large sums for the care and nursing of his wife, and medical attendance made
necessary by injuries. P alleges that D was negligent in constructing a sunken sidewalk which accumulated snow that did not melt
off, but transformed into slippery ice, by reason of the shade of the stonewall and steep construction. D’s defense: LW’s contributory
negligence, and res judicata of judgment in D’s favor in a prior suit brought by LW on the same incident.
Issue: WON judgment in wife’s suit bars P’s recovery for damages personal to him. No.
Held: It is manifest that there was no identity of the thing demanded, identity of the cause of the demand, and identity of parties, as
to meet the essential requisites of res judicata. It bhas been held (Thompson v Railroad) that when a marries woman is personally

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injured by the negligence of another, 2 coas arise; one for the wife, for the pain and suffering and the expenses she has herself paid,
and the other by the husband, in his favor, for what he has actually lost.
A ground for privity is property and not personal, relation. It means mutual or successive relationship to the same rights of property.
Privies may be of blood (e.g. heir to his ancestor), privies in representation (as executor or administrator to their deceased testator
or intestate), privies in estate (grantor and grantee, lessor and lessee, assignor and assignee), or privies in law (tenant by the
curtesy or in dower). Parties include all who are directly interested in the subject matter, and had a right to make a defense, or to
control the proceedings, and to appeal from the judgment, to adduce testimony, to cross-examine witnesses on the other side. It is
self evident that the parties are not the same, nor is P in privity with his wife. P sues in his own right, and he does not hold any title
to the damages in suit in subordination to the title of LW. He did not succeed to her position as regards the subject of the estoppel
for the estoppel worked as to her damages in her own case was applied to his damages in his case. Take natural justice: P did not
have opportunity to reciover damages in LW’s suit, appeal her case, nor was he heard, etc. Otherwise, P’s right to due process as
regards property would be violated; property includes “choses in action” defined as any right to damages, whether arising from tort,
omission of a duty, or breach of contract.

Brobston v. Burgess and Town Council of Darby Borough


P Joseph Brobston was injured while driving a car in the borough of Darby; he claims that the paving along the tracks of
Philadelphia Rapid Transit Company was in disrepair, as a result, the steering wheel of his car was wrenched from his hand
resulting in an accident. Suit was brought against PRTC and was decided in the latter’s favor. Later, P brought action against D
Burgess and Town Council of Darby based on the same coa.
Issue: WON the prior action against railroad company bars present action against town council. Yes.
Held: P may sue either borough or the one primarily liable for the defect and the former may recover from the negligent one, where
the loss was caused by him and not by some independent act of the municipality itself. But its liability is one secondary and not
primary and it cannot be joined in a suit with the abutting owner as a joint tortfeasor. Joint tort-feasorship can only be affirmed when
the parties charged have a community of interests in the object and purposes of the undertaking and an equal right to direct and
govern the movements and conduct of each other in respect thereto. The present action is barred by the former proceeding; if
recovery were now had, then D could compel by suit PRTC, where it has already been declared not responsible. P elected to sue
the one ultimately liable, and failed to recover; he cannot now be permitted to secure judgment against the borough for the identical
negligence.
Ordinarily, estoppel by judgment is applied where parties are the same or in privity with them, but an apparent exception has been
held to exist where the liability of D is dependent upon the culpability of one exonerated in a prior suit upon the same facts when
sued by the same P. Estoppel is justified by the injustice which would result in allowing a recovery against a D for the conduct of
another, when that other has been exonerated in a direct action.

Carandang v. Venturanza(1984)
Ps are surviving heirs of the late Protacio Carandang, who, with his spouse Iluminada, owned a parcel of land. Because of the
claims of his relatives as alleged co-heirs to hereditary shares of the land, an action was brought against the spouses. As they were
unlettered, they sought help from D Gregorio Venturanza (lawyer and MTC Judge) whose advice they heeded: execute deed of
absolute sale in favor of D spouses Pomposa Venturanza with the specific understanding that as soon as the adverse claims have
been settled, land title would be given back to PC. Action 1 was brought by relatives against the Venturanzas and PC to nullify the
doas, which case was decided in favor of the Ds in that case. However, Ds refused to return the land interposing the judgment in
action 1. Hence, Ps filed this complaint, Ds filed mtd on the ground of res judicata by action1.
Issue: WON action 1 was res judicata. No.
Held: There is no identity of parties. Estoppel is raised only between those who were adverse parties in the former suit, and the
judgment therein ordinarily settles nothing as to the relative rights or liabilities of the co-plaintiffs or co-defendants inter sese, unless
their hostile or conflicting claims were actually brought in issue (by cross-petition or separate and adverse answers). Ps’ present
claims have never been set forth in action 1, nor were they litigated therein.
There is also no identity of coas. Action 1 had for its purpose the annulment of the sale of the land under litigation and the recovery
of hereditary rights. This suit seeks the reconveyance of property or recovery of ownership on the basis of a trust agreement
between the parties (in relation to Art. 1453, CC). Thus, though the ownership of Ds by virtue of the doas executed in their favor may
have been established, the question of ownership on the basis of the trust agreement between the same parties was not
adjudicated by the court in action 1.

Meralco v. CA (1988)
In 1948, PHHC sold 3 parcels of land to P Pedro Velasco, under a deed of sale containing a restriction that the property shall be
used exclusively for residential purposes otherwise the vendor may rescind the sale and cancel the title of the vendee; which
provision shall bind the heirs, executors, successors, and assigns of either parties. In 1952, P sold 2 parcels to D Meralco which
established a sub-station. The severe noise of the ss became intolerable. In 1955, P filed complaint (nuisance case) praying that D
be ordered to remove and abate the nuisance with damages. The SC, on appeal, ordered either the transfer of the ss or the
reduction of the noise by 40-50 decibels. In 1957, P filed complaint for rescission of the sale.
Issue: WON the nuisance case estopped P from filing cancellation case. Yes.
Held: When Velasco instituted the nuisance case, he conceded, and is now estopped to deny, that Meralco had the right to establish
the sub-station without violation of the restriction for “residential purposes.” What he subsequently alleged was that the sub-station
had become a nuisance which should be abated. Although the propriety of the establishment of the sub-station was not controverted
in the nuisance case, it was a tacit admission on the part of P, which can form part of an estoppel in the nuisance case. Otherwise,
the procedurally wrong result would be that after the SC had decided that the ss can remain within the property with the reduction of

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the noise, the CA can subsequently nullify that decision and order the removal of the ss. There was no split coa, this is a case of
“collateral estoppel by judgment.”
The Court also held that only PHHC had the right of action, under the contract, to cancel title of vendee; that the residential
purposes restriction should be viewed from PHHC’s standpoint, under which the ss can be considered encompassed w/in residential
purposes since residences are expected to be furnished with electricity; that P is estopped when he did not object to the
construction of the ss, as non-residential, when D erected it.

Avisado v. Rumbaua (2001)


Rs1 Abelardo and Victoria Rumbaua, residents of Florida USA, own a parcel of land in Diliman, QC. Rs2 Rafael and Aurora
Consengco own the adjacent lot. Rs contend that in 1973, Ps Abelardo and Virginia Avisado occupied both parcels and refused to
vacate. In 1978, Rs1, represented by Rafael, under a special power of attorney, and Rs2 filed complaint1 before CFI QC for
recovery of possession of property. In 1980, they (Rs1 represented by Rafael) entered into a compromise agreement, approved by
the trial court, whereby Ps would pay Rs1 P70,000 for the latter to execute a doas, and Ps would have to remove portion of their
house on Rs2’s property. Rs filed motion for execution of judgment praying that Ps, having breached the agreement in their failure to
pay the P65K balance, be ordered to vacate the property. The court denied the motion, reasoning that the ca involved reciprocal
obligations – vendors failed to execute the doas. Ps filed motion to execute this judgment, which was granted.
In 1993, Rs1 through their new agent, filed complaint2 for recovery of real property with damages, alleging that the ca was invalid
for lack of authorization. TC dismissed, barred by prior judgment. CA reversed; held that the coa of the 2 cases are different, hence
this petition.
Issue: WON complaint 1 bars by res judicata complaint 2. Yes.
Held: All the elements of res judicata are present. The coas are the same. A coa has the ff elements: (1) the legal right of plaintiff; (2)
the correlative obligation of the defendant; (3) the act or omission of the defendant in violation of the legal right. In complaint 1, the
coa was the illegal occupation by Ps to the prejudice of Rs. In complaint 2, Rs1 likewise complained that’s Ps occupied their lot
through strategy and stealth w/o their knowledge and consent. Even if it is conceded that the coas in complaint 2 were different, i.e.
invalidity and breach of ca, still the issues were settled in complaint 1 (estoppel by judgment). The validity of the ca was upheld, as
not contrary to law, good morals, public policy. The ca was held not to have been breached as it involved reciprocal obligations. Rs1
were seeking the same relief in c2; they merely raised a different theory. Rs1 are also barred by laches.

(a) Law of the Case

CASE:
LITTON MILLS V GALLEON TRADER (1988)
Case 1: Litton Mills (creditor) got summary judgment in its favor after Galleon Trader (debtor) filed answer. CA and SC affirmed
jurisdiction of the court in rendering summary judgment.
Case 2: Appealed the summary judgment
Held: Main thrust of 2nd case is the propriety of the summary judgment. These issues have been fully threshed out and now
constitute the law of the case. Whatever has been irrevocably established as the controlling legal rule between the parties in the
case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision
was predicated continue to be the facts before the Court.

 Stare decisis- cases need not be related or have same parties or causes of action

g) Insufficient allegations

Rule 16, Sec. 1(g)

 Even conceding the truth of the factual allegations, plaintiff has not alleged all facts of the cause of the action
 Ground is failure to state cause of action, not of lack of cause of action

CASE:
MARCOPPER MINING V GARCIA (1986)
Marcopper filed action to quiet title to land vs Garcia, alleging that it acquired its interest from a person who had been in open
continuous and exclusive possession since about 1921. CFI dismissed action
Held:
In its complaint, Marcopper alleged that it is entitled to have its ownership of the land confirmed. This impliedly admitted
that land is public until such confirmation.
In dismissing case, CFI examined complaint, answer with counterclaim, answer to counterclaim and Marcopper’s answer
to request for admission. Court logically considered all these pleadings in determining if there was sufficient cause of action. Order
of dismissal was in nature of summary judgment.
Cf: Tan v Director of Forestry: MTD admits facts which are well pleaded, but not those which the court will take judicial
notice are not true, legally impossible facts, facts inadmissible in evidence, or facts which appear by record or document to be
unfounded.

h) Payment, waiver abandonment and extinction

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Rule 16, Sec. 1(h)

 Dismissal on this ground presupposes it can be established thru essentially summary evidentiary hearing. If not, it
will become advance trial on the merits.

i) Statute of frauds

Rule 16, Sec. 1(i)

j) Non-compliance with a condition precedent for filing

Rule 16, Sec. 1(j); Civil Code, Art. 222


Civil Code
Art 222: No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts
toward a compromise have been made, but that the same have failed, subj to the limitations in Art 2035.

CASE:
MENDOZA V CA (1967) 19 SCRA 756
Wife sued husband for maintenance. Husband filed answer with counterclaim and questioned validity of their marriage, and added
in MTD that there was failure to state cause of action since no earnest efforts made toward a compromise.
Held:
FC: No compromise valid on validity of marriage or legal separation, nor on future support. Hence, no need to show previous
efforts to compromise on these issues.

k) Lack of certification against forum shopping

Rule 7, Sec. 5
Rules of Court, 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 5 days therefrom to the court wherein in his aforesaid complaint or initiatory pleading has been filed.
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, w/o prejudice to the corresponding admin and crim 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 admin sanctions.

l) Procedure on MTD

Rule 16, Sec. 2-6


Rules of Court, RULE 16
Sec 2. Hearing of motion
At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions
of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall
automatically be part of the evidence of the party presenting the same.
Sec 3. Resolution of motion
After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied on is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefore.
Sec 4. Time to plead
If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was
entitled at the time of serving his motion, but not less than 5 days in any event, computed from his receipt of the notice of the
denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from
service of the amended pleading, unless the court provides a longer period.
Sec 5. Effect of dismissal.
Subj to the right of appeal, an order granting a MTD based on Par (f), (h) and (i) of sec 1 hereof shall bar the refilling of the same
action or claim.
Sec 6. Pleading grounds as affirmative defenses.

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If no MTD 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 prelim hearing may be had thereon as if a MTD had been filed.

Table 11: Effect of Motion to dismiss and remedies


EFFECTS OF ACTION OF MTD REMEDY
1. ORDER GRANTING motion to dismiss is a final order 1. Appeal from the order of dismissal
2. ORDER DENYING the motion to dismiss is interlocutory 2. Certiorari and prohibition if there is grave abuse of discretion
amounting to lack or excess of jurisdiction

Table 12: Rule 16 v. Rule 33


MOTION TO DISMISS UNDER RULE 16 MOTION TO DISMISS UNDER RULE 33 (demurrer to
evidence)
* Grounded on preliminary objections * Based on insufficiency of evidence.
* May be filed by any defending party against whom a claim is * May be filed only by the defendant against the complaint of the
asserted in the action. plaintiff.
* Should be filed within the time for but prior to the filing of the * May be filed only after the plaintiff has completed the
answer of the defending party to the pleading asserting the presentation of his evidence.
claim against him.

Table 13: Rule 17: Dismissal of Actions


SECTION 2 SECTION 3
1. Dismissal is at the instance of the plaintiff; 1. Dismissal is not procured by plaintiff though justified by
causes imputable to him;
2. Dismissal is a matter of procedure, without prejudice unless 2. Dismissal is a matter of evidence, an adjudication on the
otherwise stated in the order of the court or on plaintiff’s motion merits;
to dismiss his own complaint;
3. Dismissal is without prejudice to the right of the defendant to 3. Dismissal is without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless 15 days prosecute his counterclaim on the same or separate action.
from notice of the motion he manifests his intention to have his
counterclaim resolved in the same action.

2. Motion to suspend proceedings

a) Need for prior arbitration

CASE:
BENGSON v CHUA(1977) 78 SCRA 113
© between Bengson and Chua where they agreed that all disputes be decided by arbitration. Bengson sued Chua for damages
without arbitration, which Chan now alleges as an additional affirmative defense that complaint states no cause of action.
Held:
Failure to state cause of action may be alleged in a later pleading => not waived when they failed to allege in MTD or in answer
Failure to resort to arbit does not warrant dismissal. Arbit Law: Court may direct that such arbit proceed, which shall stay the
action. Instead of dismissing the case, proceedings should be suspended. If no settlement finalized, hold pre trial.

b) Need for prior reference to brgy conciliation

SC ADMINISTRATIVE CIRCULAR NO. 14-93 (GUIDELINES ON KATARUNGANG PAMBARANGAY CONCILIATION


PROCEDURE
I. All complaints and/or informations filed or raffled to your sala/branch of the Regional Trial Court, Metropolitan Trial Court or
Municipal Trial Court shall be carefully read and scrutinized to determine if there has been compliance with prior Barangay
conciliation procedure under the Revised Katarungang Pambarangay Law and its Implementing Rules and Regulations, as a pre-
condition to judicial action, particularly whether the certification to file action attached to the records of the case comply with the
requirements hereinabove enumerated in par. II;

A case filed in court without compliance with prior Barangay conciliation which is a pre-condition for formal adjudication (Sec.
412[a] of the Revised Katarungang Pambarangay Law) may be dismissed upon motion of defendant/s, not for lack of jurisdiction of
the court but for failure to state a cause of action or prematurity (Royales vs. IAC, 127 SCRA 470; Gonzales vs. CA, 151 SCRA
289), or the court may suspend proceedings upon petition of any party under Sec. 1, Rule 21 of the Rules of Court; and refer the
case motu propio to the appropriate Barangay authority, applying by analogy Sec. 408[g], 2nd par., of the Revised Katarungang
Pambarangay Law which reads as follows: The Court in which non-criminal cases not falling within the authority of the Lupon

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under this Code are filed may at any time before trial, motu proprio refer the case to the Lupon concerned for amicable settlement.

c) Rule 30, Sec 8


Rules of Court, RULE 30
Sec 8. Suspension of actions.
The suspension of actions shall be governed by the provisions of CC.

3. Motion for bill of particulars

Rule 12, Bill of Particulars

Rules of Court, RULE 12


Section 1. 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.
Sec. 2. Action by the court.
Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant
it outright, or allow the parties the opportunity to be heard.
Sec. 3. Compliance with order.
If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (l0) days from notice of the
order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be
filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party.
Sec. 4. Effect of non-compliance.
If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the
portions thereof to which the order was directed or make such other order as it deems just.
Sec. 5. Stay of period to file responsive pleading.
After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file
his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five
(5) days in any event.
Sec. 6. Bill a part of pleading.
A bill of particulars becomes part of the pleading for which it is intended.

4. Motion to drop/add parties

Rule 3, Sec. 11

Rules of Court, RULE 3


Sec 11. Misjoinder and non-joinder of parties
Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by the order of
the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against
a misjoined party may be severed and proceeded with separately.

5. Motion to sever cause of action

Rule 2, Sec 6.
Rules of Court, RULE 2
Sec. 6. Misjoinder of causes of action
Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or
on the initiative of the court, be severed and proceeded with separately.

6. Motion to strike out

Rule 8, Sec. 12; Rule 7, Sec. 3; Rule 12, Sec. 4; Rule 29, Sec. 3(c)
Rules of Court, RULE 8
Sec 12. Striking out of pleading or matter contained therein-
Upon motion by a party before responding to a pleading, or if no responsive pleading is permitted by these Rules, upon motion
made by a party within 20 days after the service of the pleading upon him, or upon the court’s own initiative at any time, the court
may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be

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stricken out therefrom.


Rules of Court, RULE 7
Sec 3. Signature and address
Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not
be a post office box.
The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge,
information and belief there is good ground to support it, and that it is not interposed for delay.
An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied
if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an
unsigned pleading or signs a pleading in violation of this rule, or alleges scandalous or indecent matter therein, or fails to promptly
report to the court a change of his address, shall be subj to approp disciplinary action.
Rules of Court, RULE 12
Sec 4. Effect of non-compliance
If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of a pleading or the
portions thereof to which the order was directed or make such other order as it deems just.
Rules of Court, RULE 29
Sec 3. Other consequences.
If any party… refuses to obey an order… requiring him to answer designated questions, or .…to produce any document or other
thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon Iand or other prop, or an order…
requiring him to submit to a physical or mental examination, the court may make…
(c) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party

Party or on the initiative of the court, be severed and proceeded with separately.

 Summary of Grounds for Striking out


1) pleading contains sham or false, redundant, immaterial, impertinent, or scandalous matter
2) pleading is unsigned
3) order for Bill of Particulars or to provide a more definite statement is not obeyed
4) party refuses to make or allow discovery

CASE:
NEEFUS v NEEFUS (1941)
Defendant sureties in their answer alleged that plaintiff and her agents procured their signatures through fraud. Plainitff in her
affidavit moved that the answer be stricken out for being sham and frivolous, because she and her attorney never dealt with them.
Held:
A sham or frivolous answer may be stricken on motion and judgment rendered notwithstanding the same as for want of an
answer. An answer is frivolous which appears from a bare inspection to be lacking in legal sufficiency and which in any view of the
facts presented does not present a defense. A sham answer is sufficient in its face but is false in fact.
The falsity of a pleading may be shown by affidavits.

7. Motion for judgment on the pleadings

Rule 34
Rules of Court, RULE 34
Judgment on the pleadings
Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court
may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of
marriage or for legal separation, the material facts alleged in the complaint shall always be proved.

 There is only an issue of law and no evidentiary hearing is required


 Either party may move for judgment on the pleadings after filing of an answer and before trial

CASE:
PAGE v NORTH CAROLINA MUTUAL INSURANCE CO (1945)
Page filed claim as beneficiary. Insurance company answered that death was not accidental because insured was killed. Beneficiary
moved for judgment on pleadings. Insurer asked for leave to amend its answer to include the allegation that insured was the
aggressor.
Held:
Motion for judgment on the pleadings is in nature of a general demurrer. It is appropriate where the pleading is fatally
deficient in substance, that is, where the complaint fails to state a good cause of action or where the answer fails to state a defense
sufficient in law to the cause of action alleged. Being in the nature of a demurrer, a motion for judgment on the pleadings raises an
issue of law only.
Amendment which will remove the objections to the demurrer should have been allowed.

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8. Motion for summary judgment

Rules of Court, RULE 35


Sec. 1. Summary judgment for claimant.
A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the
pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in
his favor upon all or any part thereof.
Sec. 2. Summary judgment for defending party.
A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with
supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof.
Sec. 3. Motion and proceedings thereon.
The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing
affidavits, depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of
damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Sec. 4. Case not fully adjudicated on motion.
If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the
court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall
ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall
thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount
of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so
specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly.
Sec. 5. Form of affidavits and supporting papers.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of
all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith.
Sec. 6. Affidavits in bad faith.
Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith,
or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount
of the reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing,
further adjudge the offending party or counsel guilty of contempt.

 No genuine issue on any material fact: no factual issue which will require a full-dress evidentiary hearing involving
witnesses
 Issue is only on damages
 Motion may be filed at any time, even by the defendant before he files his answer

CASES:
ARNSTEIN v PORTER (1946)
Arnstein sued Porter for infringement. Porter moved for summary judgment, attached depositions and records, and denied that he
had ever seen or heard any of the musical compositions.
Held:
Court found sufficient similarities, but absent any evidence of access, these similarities do not compel the conclusion or
permit the inference that Porter copied. Summary judgment was proper only if indubitably the defendant did not have access to
plaintiff’s compositions. But if credibility is a factor, plaintiff is entitled to a trial where the jury can observe the witnesses while
testifying.
In some cases, a trial may be farcical, like when a defendant pleads payment on a suit on a promissory note by setting
forth his cancelled check, while plaintiff merely states that no payment received and suggests no other proof. But if credibility
becomes impt, summary judgment is improper and a trial indispensable.

ESTRADA v CONSOLACION (1976) 71 SCRA 523


Estrada filed complaint for damages against Corazon Uy and Lucio Galaura, owner and driver, for death of his wife. Defendants
alleged that proximate cause of the accident was negligence of a 3 rd person, attached sketches showing the fault was with another
vehicle, and moved for summary judgment on the ground that there was no genuine issue except as to the amount of damages. CFI
granted summary judgment and damages in favor of defendants.
Held:
When defendant moves for summary judgment, must show that his defenses or denials are sufficient to defeat the
claimant’s claim. Affidavit should be made by persons having personal knowledge of the facts, and shall recite all material facts and
show there is no defense to the cause of action or that the cause of action has no merits. In hearing for summary judgment, court
should not pass on questions of credibility or weight of evidence.

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Test: Whether the pleadings, affidavits and exhibits in support of the motions are sufficient to overcome the opposing
papers and to justify a finding as a matter of law that there is no defense to the action or the claim is clearly meritorious.
The opposing party must establish a genuine issue of fact to defeat a motion for summary judgment. Facts must be
sufficient to require a trial of any issue of fact other than the amt of damages. Burden of proof is on plaintiff to prove cause of action
and to show that defense interposed solely for delay.
Since defendant has shown that accident due to caso fortuito, petitioner failed to rebut such proof.
However, order of the judge was mere interlocutory order directing a hearing to ascertain the amount of damages. If no
findings of fact or conclusions of law, order of the judge is not a judgment. Petitioner should move to set aside of the order by
showing a genuine issue of fact on the carrier’s liability.
 2 step procedure on motion for summary judgment:
1) Determination that case resolvable on summary judgment
2) Resolving the case on basis of affidavits, depositions and admissions on file

CELOTEX CORP v CATRETT (1986)


Cattrett sued Celotex Corp etc. alleging that her husband died due to exposure to products containing asbestos. Celotex filed for
summary judgment alleging that no evidence to show that any Celotex product was the proximate cause of the injuries alleged.
Cattrett then presented evidence to demonstrate a material factual dispute like deposition of the decedent, letter from an insurance
company etc.
Held:
If pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment is proper. Summary
judgment is proper after adequate time for discovery against party who fails to make sufficient showing of an element of his case wrt
which she has the burden of proof.
Claimants and defendants may move for summary judgment with or without supporting affidavits.
Purpose of summary judgment rule: to isolate and dispose of factually unsupported claims or defenses.

CROSS v UNITED STATES (1964)


Ps Ephraim and Mary Cross filed income tax refund suit claiming that they were entitled to a deduction of $1300 on their joint return
for 1954 because of expenses incurred by EC in his summer travel to Mediterranean and European countries. EC taught French,
Spanish, and romance linguistics at City College in NY and Ps sailed from NY to Portugal, Morocco, Tangiers, Oran, Algiers, Naples,
and Genoa, and separated at Marseilles; MC continued touring while EC traveled to Paris. P asserted that the purpose of the trip
was to maintain and improve his skills. Though P did not engage in a formal course of study or in research, he visited schools,
courts, churches, book publishers, theaters, movies, restaurants, cafes, and other places of amusements, read newspapers, listen
to radio broadcasts, converse with students and teachers, and attend political meetings. D contends that P’s travel was a vacation
and thus a personal living expense not deductible, Sec 162, IRC, and challenges the amt claimed. They filed msj granted by DC. D
US Government opposed msj claiming right to cross-examine Ps and affiant professors (tending to indicate the desirability of foreign
travel for language profs) as to the nature of the expenses and the educational benefits allegedly sought.
Issue: WON summary judgment was properly granted. No.
Held: Summary judgment was improvidently granted and D is entitled to a trial. Rule 56 (c) FRCP permits sj only when there is no
genuine issue as to any material fact. Before traveling expenses can be allowed as deductible, there must be factual determination
of what parts, if any, are to be attributed to vacation or to education. Many of the facts remain largely within P’s knowledge and D
should have the opportunity to test his credibility on cross-examination. SJ is particularly inappropriate where the “inferences which
the parties seek to have drawn deal with questions of motives, intent, and subjective feelings and reactions.”

Table 14: Judgment on Pleadings v. Summary Judgment


JUDGMENT ON PLEADINGS SUMMARY JUDGMENT
Grounds Answer fails to tender an issue or No genuine issue as to any material
admits material allegations fact in the action
Who may ask Either party Either party
Basis Pleadings Pleadings, depositions, admissions
When invoked After filing answer and before trial Any time before judgment
Partial judgment allowed? R36, S4 and S5 R35, S4

Table 15: Summary Judgments, Judgment on the pleadings, & Judgment by default
SUMMARY JUDGMENT JUDGMENT ON THE PLEADINGS JUDGEMENT BY DEFAULT (Rule 9)
* Based on the pleadings, depositions, * Based solely on the pleadings * Based on the complaint and evidence, if
admissions and affidavits presentation is required
* Available to both plaintiff and defendant * Generally available only on the plaintiff, * Available to plaintiff
unless the defendant presents a
counterclaim.
* There is no genuine issue between the * There is no issue or there is an * No issues as no answer is filed by the
parties, i.e. there may be issues but these admission of the material allegations. defending party.
are irrelevant

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* 10-day notice required * 3-day notice required * 3-day notice rule applies
* May be interlocutory or on the merits * On the merits * On the merits

Table 16: Judgment on the Pleadings v. Summary Judgment


Judgment on the pleadings Summary judgment
Proper when there is no genuine issue between the parties Proper even if there is an issue as to the damages recoverable
Based exclusively on the pleadings without introduction of Based not only on pleadings but also on affidavits, depositions and
evidence admissions of the parties
Available in any action, except the 3 exceptions Proper only in actions to recover a debt, or for a liquidated sum of
money, or for declaratory relief

VIII. DISMISSALS AND DEFAULTS

1. Dismissals

Rules of Court, 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. (1a)
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.
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.
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint.
The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary
dismissal by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a motion for
summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing.

 Dismissal – by mere notice before defendant answers or moves for summary judgment. Hence, no need to furnish
copy to other party.

 After defendant answers or moves for summary judgment, needs prior leave of court

 Dismissal on notice or motion of plaintiff without prejudice EXCEPT:


1) where notice of dismissal so provides
2) 2 dismissal rule – plaintiff has previously dismissed the same case in a court of competent jurisdiction
(Prof. Antonio R. Bautista’s book)

Table 17: Comparison of Section 2 and Section 3


SECTION 2 SECTION 3
1. Dismissal is at the instance of the plaintiff; 1. Dismissal is not procured by plaintiff though justified by
causes imputable to him;
2. Dismissal is a matter of procedure, without prejudice unless 2. Dismissal is a matter of evidence, an adjudication on the
otherwise stated in the order of the court or on plaintiff’s motion merits;
to dismiss his own complaint;
3. Dismissal is without prejudice to the right of the defendant to 3. Dismissal is without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless 15 days prosecute his counterclaim on the same or separate action.
from notice of the motion he manifests his intention to have his
counterclaim resolved in the same action.

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 Plaintiff may not unilaterally cause dismissal if court has already acted thereon like issued a TRO or replevin writ, or
if it’s class suit. (Prof. Antonio Bautista)

CASES:

REPUBLIC PLANTERS BANK v MOLINA (1988)


P Republic Planters Bank filed complaint 1 for the collection of a sum of money based on a PN of P100,000. Case was dismissed
for failure of P to prosecute its case within a reasonable length of time. P filed complaint 2, D Sarmiento companies filed MTD on the
ground of res judicata in case 1, they contend that it was an adjudication upon the merits. P opposed MTD because the summons
and complaint were never served upon Ds and TC never acquired jurisdiction. TC granted MTD, decision in case1 final. Motion for
recon denied, hence this petition for c.
Issue: WON res judicata applies. No.
Held: Jurisdiction is vitally essential for any order or adjudication to be binding. A judgment to be res judicata must be rendered by a
court of competent jurisdiction. There are no indications that P intentionally failed to prosecute the case. The delay could not be
attributed to its fault. P pursued the case with diligence but jurisdiction could not be acquired over Ds. The sheriff had not yet
submitted his return of the alias summons when the action was precipitately dismissed by the TC.

MELITON v CA (1992)
Respondent Nelia Ziga filed a complaint against Petitioner Lydia Meliton for a rescission of a contract of lease over a parcel of land
in Naga City, for failure to deposit one month rental and pay monthly rents; construction of a concrete wall and roof without lessor’s
consent; and unauthorized sublease. Meliton filed an answer denying material averments and set-up 3 counterclaims: value of
kitchenette, improvements, and furnitures and fixtures that were demolished by Ziga, plus damages. Ziga’s complaint, upon Ziga’s
motion, was dismissed by TC: moot and academic by the expiration of lease contract. P’s counterclaim was also dismissed for non-
payment of docket fees (lack of jurisdiction). P filed this complaint for recovery of the same amounts in the cc. R filed motion to
dismiss: barred by prior judgment of dismissal. TC denied motion. CA reversed and dismissed complaint. Hence this appeal by
certiorari.
Issue: WON CC are compulsory. YES
WON Ps are barred from asserting claims in another action (having failed to seek reconsideration or appeal from dismissal). NO
Held: 1. Test of compulsoriness: the logical relationship between the claim alleged in the complaint and that in the cc, i.e. where
conducting separate trials would entail a substantial duplication of effort and time, as where they involve many of the same factual &
legal issues. Here, both claims arose from the same contract of lease: their rights and obligations and their potential liability for
damages emanated from the same contractual relation.
2.A compulsory cc made the subject of a separate suit may be abated upon a plea of auter action pendant (litis pendentia) or res
judicata depending on the stage of the suit. Both cannot be invoked by R Ziga. Dismissal of complaint was made under Rule 17.2.
and dismissal thereunder is without prejudice except when stated in mtd or upon court’s order. Same rule applies to CC by parity of
rationale. CC was due to lack of jurisdiction for failure to pay docket fees: dismissal for lack of jurisdiction does not constitute res
judicata (not tried on merits).
The order of dismissal impliedly did not intend to prejudice the claims of P by barring subsequent judicial enforcement thereof.
Under R17.2. an action shall not be dismissed at p’s request after service of the answer except by order of the court upon such
terms and conditions the court deems proper. Therefore, the tc could not have BUT reserved Meliton’s right to maintain a separate
action for damages. (under new rule, motion to dismiss after cc filed, dismissal limited to complaint. at any rate, dismissal shall be
without prejudice to d’s right to prosecute cc in a separate action, unless d w/in 15 days from notice of mtd manifests preference to
have cc resolved in the same action R17.2).
Court also applied Manchester doctrine: failure to seek reconsideration because they were made to believe that their cc was merely
permissive should not prejudice them.

DISMISSALS THAT OPERATE AS ADJUDICATIONS ON THE MERITS


(or bar refiling of the same action)

 Rule 16, Section 1 (f)


- res judicata
- prescription
 Rule 16, Section 1 (h) – extinguishment
 Rule 16, Section 1 (i) – unenforceability
 Rule 17, Section 3
- failure to appear on date of presentation of evidence
in chief
- failure to prosecute
- failure to comply with the Rules or any order of the
Court
 Rule 18, Section 5 – failure of plaintiff to appear at pre-trial
 Rule 18, Section 6 – failure of plaintiff to file pre-trial brief
 Rule 17, Section 1 (2-dismissal rule) – Second dismissal upon notice of plaintiff

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 Rule 33, Section 1 – Order granting a demurrer to evidence


 Minute resolution of the SC dismissing a petition for review for lack of merit

2. Defaults
Rules of Court, RULE 9
Sec. 3. Default; declaration of.
If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice
to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to
render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the
claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.
(a) EFFECT OF ORDER OF DEFAULT. - A party in default shall be entitled to notice of subsequent proceedings but not to take
part in the trial.
(b) RELIEF FROM ORDER OF DEFAULT. - A party declared in default may at any time after notice thereof and before judgment
file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud,
accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be
set aside on such terms and conditions as the judge may impose in the interest of justice.
(c) EFFECT OF PARTIAL DEFAULT. - When a pleading asserting a claim states a common cause of action against several
defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers
thus filed and render judgment upon the evidence presented.
(d) EXTENT OF RELIEF TO BE AWARDED. - A judgment rendered against a party in default shall not exceed the amount or be
different in kind from that prayed for nor award unliquidated damages.
(e) WHERE NO DEFAULTS ALLOWED. - If the defending party in an action for annulment or declaration of nullity of marriage or
for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence
submitted is not fabricated.

 Sole ground for default declaration: failure of defendant to answer the complaint within prescribed period
 Cf: Judgment by default for refusal to make discovery needs no prior order of default
 Default declaration: only upon motion of party not in default

CASES:

CO v ACOSTA (1985)
In 1979 Pepsi Cola Bottling Co. issued 3 purchase orders to CTC Appliance Center, with Petitioner Rufino Co as its proprietor,
12,000 units of refrigerators worth P35,322,900. P assigned his rights and interests to the 3 Pos to R Refrigerations Industries Inc.
Pepsi did not recognize the assignment. 10,000 units were delivered and paid. In 1981 Pepsi received the 1,000 units directly from
R, worth P2,907,535. R demanded payment from Pepsi but Pepsi replied that it is not bound by the assignment, and the value of
the units received were set-off against debts of P. R demanded from P, but latter refused and failed to pay. R filed case for sum of
money with attachment before CFI Rizal against Pepsi and P. R filed mtd against Pepsi in the light of the “joint release, waiver
and/or quitclaim” signed by both. CFI granted mtd. R filed a motion to declare P in default for having failed to file his answer. CFI
granted motion and allowed R to present evidence ex-parte. In 1983, CFI decided in favor of R. P filed petition for relief of judgment
and petition for issuance of restraining order while court issued writ of execution levying P’s real properties. Both petitions were
denied. Hence, this petition for certiorari.
Issue: WON P was in default. No.
Pepsi and P are indispensable parties to the case; they were sued under a common coa alleging that Pepsi received the
refrigerators w/o intent to pay but only to set-off the debts of P, while P refused to pay and whose debts were set-off by means not
coming from its own pockets; that both in concert with a view to victimize Rs made acts calculated to gain profit from their loss; that
both were guilty of conspiracy, connivance, unfair play, and foul tactics in employing fraud, bad faith, and deceit. Lim Tanhu v.
Ramolete is controlling: in all instances where a common coa is alleged against several Ds, some of whom answer and the others
do not, those in default acquire a vested right not only to own the defense interposed in the answer of the co-defendants not only in
default but also to expect a result of litigation totally common with them in kind and in amount won favorable. It does not matter that
the dismissal is upon the evidence presented by the P himself or upon his mere desistence, for, in both contingencies, the lack of
sufficient legal basis must be the cause. The integrity of the common coa and the indispensability of all Ds do not permit any
possibility of waiver only as to one or some of them, w/o including all of them, and so, as a rule, withdrawal must be deemed to be a
confession of weakness as to all. This would preclude the concomitant hazard that p might resort to a stratagem that results in
depriving ds every opportunity to defend themselves.

LINA v CA (1985)
On March 31, 1982 P Northern Motors Inc. filed a case for a sum of money before CFI Rizal against D Alex Lina. Summons were
served on April 22, 1982. On May 8, 1982, when no answer or mtd was filed, P filed motion to declare D in default. On May 19,
1982, D filed his opposition noting that he filed motion for extension of time to file answer on May 5, 1982. May 27, CFI declared D

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in default. May 28, D filed answer. CFI decided in favor of P. D’s motion to set aside decision was denied. CA denied petition for
certiorari.
Issue: WON D was properly declared in default. Yes.
Held: The granting of additional time within which to file an answer to a complaint is a matter largely addressed to the sound
decision of the tc. The remedies available to D in the CFI are:
(1) He may, at any time after discovery of default and before judgment, file a motion, under oath, to set aside the order of
default on the ground that his failure to answer was due to fraud, accident, mistake, or excusable neglect, and that he has
a meritorious defense; (R18 S3)
(2) If the judgment has already been rendered upon discovery but before the same has become final and executory, he may
file a motion for new trial under R37 S1(a);
(3) If D discovered the default after judgment has become final and executory, he may file a petition for relief under R38 S2;
and
(4) He may also appeal the judgment as contrary to evidence or to the law, even if no petition to set aside the order of default
has been presented by him (R41 S2).
Dissent by Melencio-Herrera: D’s motion for extension to file answer was already before the court when it declared D in default.
What is more, the answer had already been filed within the extended period requested when judgment by default was rendered.
Cases should be resolved by merits rather than technicalities; every litigant should be afforded the amplest opportunity for the
proper and just disposition of his cause.

BOTICANO v CHU (1987)


P Eliseo Boticano’s Bedford truck, while properly parked at the shoulder of a national highway, was hit and bumped at the rear by
another truck owned by D Manuel Chu Jr. and driven by Jaime Sigua, co-d. D acknowledged ownership of truck and agreed to pay
expenses for the repair. D failed to comply w agreement, P filed complaint at the CFI Nueva Ecija for damages. Summons as to JS
was unserved as he was no longer connected with San Pedro Sawmill while summons for MC was returned duly served thru wife
Veronica at their house. P filed mtd case against JS and motion to declare D MC in default for failure to file responsive pleadings
w/in reglementary period. Motion granted. TC decided in P’s favor. D filed notice of appeal and motion for extension of time to file
record on appeal, opposed by P, but granted. CA set aside TC’s judgment for lack of jurisdiction (improper service of summons).
Issue: (1) WON question of jurisdiction over person can be raised for the first time on appeal. No.
Failure to raise issue in the CFI at first opportunity is indicative of waiver of the defect. D also voluntarily submitted himself to the
court’s jurisdiction; under R14 S23, D’s voluntary appearance in the action shall be equivalent to service.
(2) WON D may appeal default judgment even if he has not asked RTC to set aside declaration of default. Yes.
If an appeal is made without first asking the RTC to set aside the declaration of default, and the appellate court sets aside
declaration, all he can get is a review of the RTC’s judgment of default w/o the opportunity of having the higher court consider
defense evidence for the simple reason that no evidence was adduced by him in the RTC (R41, s2, p3).
If D first asks the RTC to set aside the declaration of default and he prevails, the declaration will be set aside and he will now have
the opportunity to present his evidence in the RTC. Even if he loses in the RTC, his defense can be considered when appeal is
made to the CA. If his motion is denied, he will be entitled to all notices in the court proceedings and he can file any pleading he may
wish to file including notice of appeal (R13, s9).

DENSO v IAC (1987)


Nippondenso Bldg, owned by P Kayamanan Development Corp. and leased to Defendant and Respondent Denso Phil. Inc. was
razed by fire causing losses of P6.13M to R, P.682K to Nippondenso, and P1.75M to P. P filed action against D for recovery of
unpaid rentals from June 84 to March 85 of P471K, the cost of repair to the bldg, claiming that D was bound to bear cost under the
lease agreement. Summons was belatedly referred to D’s counsel prompting the latter to file a motion for extension of time to file
answer. Motion was denied on the ground that there was no proof of service that P received a copy. P then filed ex-parte motion to
declare D in default, which was granted. Evidence was received ex-parte and decision was rendered in P’s favor. D filed motion for
reconsideration of order and judgment. On Sept. 3, 1985, TC set aside order of default and decision, but hearing was only for
presentation of D’s evidence without right to cross-examine P. D orally asked the court to reconsider on Oct. 24 and formally filed
motion for reconsideration on Nov 4, 198, but was denied by the Court on Nov 8 and Nov 12 respectively. D did not receive Nov 12
order until Jan 9, 1986, the last day for the reception of evidence. Upon being shown the order, R asked for deferment of the hearing
so that it can elevate ruling to higher court. This was denied, and when D declared itself not ready to present evidence, the court
revived decision in favor of P. On petition for certiorari, IAC held that the right to cross-examine was deemed waived by R’s failure to
move for reconsideration until after 38 days, order sought already final, and D was guilty of laches.
Issues:
(1) WON the Sept. 3, 1985 order became final. No. WON D guilty of laches. No.
A final judgment is one that finally disposes a case; an order that does not is interlocutory. Unlike a final judgment which is
appealable, an interlocutory order may not be questioned on appeal except only as part of an appeal that may eventually be taken
from a final judgment. The order was interlocutory, in setting aside order of and judgment by default, it left the case open for further
proceedings before the TC, not the least was the reception of evidence. Therefore, it could not become final, not appeal would lie
except as part of an appeal from a subsequent final judgment on the merits, and a motion for recon is not subject to the limiting 15-
day period of appeal. 38 days is not an unreasonably long period to apply laches, it is founded on equity and may be invoked only
when they delay has worked a change in the conditions as would render unjust or inequitable the grant of the relief sought. No
perceivable prejudice would attach to P if D was allowed to cross-examine the witnesses presented.
(2) WON the issue of D’s default was moot. No.
What the IAC considered to be moot, the issue of CFI’s denial of motion for extension of time and declaring D in default lay precisely
at the heart of the matter before it. Both orders were premised on the failure to comply with service of notice of motions 3 days prior

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to hearing by D. But the rule on notice is not unqualifiedly applicable to all motions, and there are motions that may be heard ex-
parte, which include motions to file extension of time to plead. The reason is that they are non-contentious and do not involve the
substantial rights of the parties in the suit. D’s motion for extension was improperly denied since it has been seasonably filed and
there is no impediment to its being heard ex-parte. No pretense was made that it was filed for delay, which would be belied by the
fact that what was sought was the extension of the original reglementary period and there are prima facie meritorious reasons for
the extensions. The answer alleging defenses that could defeat P’s claim was filed w/in period of extension prayed for.
(3) WON Judge abused discretion in disallowing cross-examination. Yes.

 Remedies from Default Order


 Opposition to motion to declare in default
 Motion to set aside default order- must be due to fraud, accident, mistake and excusable negligence and
accompanied by Affidavit of Merits
 But affidavit required only if improvidently declared in default, but not if illegally declared in
default (Prof. ARBautista)
 If default order set aside, it is as if there was no default. Defaulting party can still cross-
examine

 Remedies from Default Judgment


 Motion for new trial or reconsideration – only if there has been judgment by default
 Appeal from Default Judgment– after judgment rendered. Even if did not file motion to set aside default order or
default judgment (R41 S2: appeal by certiorari) or motion for new trial (Matute v CA)
1. Petition for relief from judgment – R 38. Use this if period to appeal has lapsed without defendant’s fault or
negligence.
2. Petition for certiorari – Order is interlocutory, so certiorari under R65 (but requires no available plain,
speedy and adequate remedy. Motion to Set aside Order of Default must no longer be available )

 There must be lapse of time between Order of Default and Judgment by Default. (Tanchan v CA). Defendant should
have reasonable time to file motion to set aside default declaration

 Cannot grant judgment by default for annulment of marriage, judicial declaration of nullity and legal sep

IX. PROVISIONAL REMEDIES

 So that any judgment which plaintiff may recover will not become paper judgment or that defendant not take
advantage of pendency of litigation by significantly altering situation or parties
 Known as mesne process bec issued in interregnum between commencement of action and rendition of judgment
 Aka auxiliary remedies

1. NOTICE OF LIS PENDENS


Rules of Court, RULE 13
Sec. 14. Notice of lis pendens
In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is
claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of
the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a
description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or
encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of
its pendency against the parties designated by their real names
The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the
notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to
be recorded.

 Since fxn is to keep prop within power of court until final judgment, notice cannot be cancelled or removed by filing of
bond (Fernandez v CA)

Art. 1381 (4), Civil Code


The following contracts are rescissible:
x x x
(4) Those which refer to things under litigation if they have been entered into by the defendant without the knowledge
and approval of the litigants or of competent judicial authority;

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CASE:

PO LAM v CA (2000)
This is a motion for reconsideration filed by spouses Roy Po Lam of the Court’s decision declaring them as transferees pendente lite
and not purchasers in good faith. Lim Kok Chong sold two lots to the Legazpi Avenue Hardware Company. LKC’s brother, Felix Lim,
filed a complaint to annul the deed of sale at the CFI Albay on the ground that it included his 3/14 pro-indiviso portion inherited. FL
filed with the Register of Deeds of Albay a notice of lis pendens on the 2 lots. TC dropped case against LKC and LAHCO declared
absolute owner. TC ordered cancellation of the notice of lis pendens. Only the notice inscribed on TCT 2580 was cancelled; that of
2581 remained uncancelled because the duplicate owner’s copy was with the Continental Bank, having been mortgaged by
LAHCO. FL appealed to the CA. Pending appeal, LAHCO sold the 2 lots to spouses Po Lam. They had notice on 2581 cancelled,
FL did not move for the reinstatement of the notices.
CA affirmed decision of TC. FL filed motion for extension of time to file MFR. Granted, but his MFR was denied. Without leave of
court, FL filed a second MFR. This was acted upon favorably by the CA, by declaring that FL could redeem the lots sold to LAHCO.
FL filed motion for annotation, issuance of writ of execution, and deed of conveyance. All denied by TC: Po Lam could not be bound
since they were not impleaded. FL filed a complaint for reconveyance and annulment of sale. RTC declared Po Lam as transferees
pendent elite and not purchasers in good faith. Po Lam filed certiorari but was denied by SC. Hence this MFR.
Issue: WON Po Lam spouses were purchasers pendent lite and in bad faith. No
Held: It must be pointed out that even if a notice of lis pendens was still subsisting at the time Ps bought the property from LAHCO,
there was also a court order ordering that the annotation be cancelled, as in fact, it was cancelled. Hence, Ps cannot be considered
as being aware of a flaw, since the alleged flaw, the notice of lis pendens, was already being ordered cancelled at the time of
purchase. The filing of the notice of lis pendens in effect (1) keeps the subject matter of the litigation within the power of the court
until the entry of the final judgment so as to prevent the defeat of the latter by successive alienations; and (2) binds a purchaser of
the land subject of the litigation to the judgment or decree that will be promulgated thereon won such purchaser is bona fide; but (3)
does not create a non-existent right or lien.
But it is not correct to speak of it as part of the doctrine of notice; the purchaser pendent lite is affected, not by notice, but because
the law does not allow litigating parties to give to others, pending the litigation, rights to the property in dispute as to prejudice the
opposite party. The doctrine rests upon public policy, not notice.

2. PRELIMINARY ATTACHMENT

a) Art. 1387, CC

Art. 1387, Civil Code


All contracts by virtue of which the debtor alienates property by gratuitous title are presumed to have been entered into in
fraud of creditors, when the donor did not reserve sufficient property to pay all debts contracted before the donation.
Alienations by onerous title are also presumed fraudulent when made by persons against whom some judgment has been
issued. The decision or attachment need not refer to the property alienated, and need not have been obtained by the party
seeking the rescission.
In addition to these presumptions, the design to defraud creditors may be proved in any other manner recognized by the law
of evidence.

RULE 57 PRELIMINARY ATTACHMENT

1. Preliminary Attachment
a. Available even if the recovery of personal property is only an incidental relief sought in the action;
b. May be resorted to even if the personal property is in the custody of a third person;
c. Extends to all kinds of property, real or personal or incorporeal;
d. To recover possession of personal property unjustly detained, presupposes that the same is being concealed, removed, or
disposed of to prevent its being found or taken by the applicant;
e. Can still be resorted to even if the property is in custodia legis, as long as the property belongs to the defendant, or is one
in which he has proprietary interests, AND with permission of the court
f. Overdraft account with bank also can’t be attached bec that would be compelling defendant to borrow money
g. But in action to foreclose REM, prop not covered by mortgage may be attached if shown that mortgaged prop insufficient
to cover debt (Prof. ARBautista)

2. Grounds
a. Recovery of specified amount of money and damages, except moral or exemplary, where party is about to depart from the
Phils with intent to defraud creditors;
b. Action for money or property embezzled or for willful violation of duty by public officers, officers of corporation, agent, or
fiduciary;

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c. Recovery of possession of property (both real and personal) unjustly detained, when the property is concealed or
disposed of to prevent is being found or taken;
d. Action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof;
e. Action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors;
f. Action against party who is not a resident of the Phils and cannot be found therein or upon who service by publication can
be made.

 Imminent insolvency or insolvency itself is not ground


 Ground (f) on non-resident party applies only to natural persons
 Attachment can issue for ©, quasi-delicts, fraud

PROCEDURE IN PRELIMINARY ATTACHMENT

(1) Party files a motion for preliminary attachment in the court in which the action is pending, or in the CA or SC. (Of
course it goes without saying that the adverse party must have notice of the motion.)

Who: Any party, including:

 A defendant on his counterclaim;


 A co-party on his cross-claim;
 3rd party plaintiff on his 3rd party claim

When: at the commencement of the action, or at any time before entry of judgment

(2) Applicant (or some other person who personally knows the facts) must submit an affidavit stating, among others that:

(a) His / her cause of action (which must be found to be existing and sufficient);
(b) The ground for the application is covered by the instances provided for in Rule 57, Sec. 1;
(c) There is no other sufficient security for the claim sought to be enforced by the action;
(d) The amount due to the applicant, or the value of the property the possession of which he is entitled to
recover, is as much as the sum for which the order is granted above all legal counterclaims.

(3) Applicant must then give a bond executed to the adverse party in the amount fixed by the court in its order.

Conditions of the bond: The applicant will pay all the costs which may be adjudged to the adverse party and all
damages which he may sustain by reason of the attachment, if the court shall finally
adjudged that he (applicant) was not entitled to the writ.

(4) The court will proceed to hear the motion.

(5) The court will then decide on whether or not to grant the writ, and issue its order accordingly.

(6) If the court grants the writ, then the sheriff shall enforce the same without delay and with all reasonable diligence.

(6.1) Notes: The property attached should:

(1) Be located in the Philippines;


(2) Belong to the party against whom the writ is issued;
(3) Not be exempt from execution;
(4) Be sufficient to satisfy the applicant’s demand
(not excessive);

(6.2) Enforcement of the writ must be preceded or contemporaneously accompanied by the following:

(1) Service of summons;


(2) A copy of the complaint;
(3) A copy of the application for attachment;
(4) A copy of the applicant’s affidavit and bond; and
(5) The order and writ of attachment.

(6.3) The exceptions to contemporaneous service of summons are:

(1) Where personal or substituted service of summons could not be effected despite
diligent efforts;
(2) The defendant is a resident of the Philippines temporarily absent therefrom;

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(3) The defendant is a non-resident of the Philippines;


(4) The action is one in rem or quasi in rem

(7) After enforcing the writ, the sheriff must, without delay, make a return of the writ to the court which issued it.

The return must be accompanied by the following:

(a) Full statement of proceedings under the writ;


(b) Complete inventory of the property attached;
(c) Counter-bond, if any, given by the party against whom attachment was issued.

(8) AT THIS POINT, the party whose property was attached, or his agent, may move for the discharge of the
attachment wholly or in part on the security given.
If garnishee does not deliver funds to attaching creditor, attaching creditor may obtain writ of execution or file separate
action, but garnishee cannot be punished for contempt (Tee Bi & Co. v Chartered Bank of India)

(9) The sheriff may then cause the judgment to be satisfied out of the property attached as follows:

MODES OF ATTACHING PROPERTY

Real property, or standing crops thereon or any interest therein

By filing a copy of the order with the Register of Deeds, together with a description of the property attached, and a notice that it
is attached; and

Leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his
agent if found within the province.

Personal property capable of manual delivery

By taking and safely keeping it in his custody, and issuing the corresponding receipt therefor.

Stocks or shares of any corporation or company, or an interest therein

By leaving with the Pres. or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest is
attached in pursuance of the writ

Debts and credits and other personal property not capable of manual delivery

By leaving with the debtor, or person having possession or control of the credits or other personal property, or his agent a copy
of the writ, and the proper notice

Interest in property belonging to the estate of a decedent

By serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice;

Filing a copy of the writ and notice with the clerk of the court in which the estate is being settled; and

Serving copies of the writ and notice upon the heir, legatee, or devisee concerned.

Property in custodia legis

By filing a copy of the writ with the proper court or quasi-judicial agency; and

Serving a notice of the attachment upon the custodian of the property.

ALL PROPERTIES EXEMPT FROM EXECUTION ARE THE PROPERTIES EXEMPT FROM ATTACHMENT. Even property in
custodia legis is allowed to be attached.

 2 Kinds of attachment
1) Attachment proper- actual physical custody for tangible things
2) Garnishment- when intangible prop not taken into custody but merely impounded
- essentially is notice of sequestration

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CONNECTICUT v DOEHR (1991)


Giovanni filed for attachment on Doehr’s house for a civil action for assault and battery. Under Connecticut law, prejudgment
attachment of real estate allowed without prior notice or prior hearing. Required to be verified under oath but bond not required. The
judge found probable cause in Giovanni’s cause of action and ordered attachment.
Held:
Attachment ordinarily clouds title, impairs the ability to sell or otherwise alienate the prop, taints any credit rating, reduces
the chance of obtaining a home equity loan or addl mortgage and can even place existing mortgage in technical default where there
is an insecurity clause. Hence, even temporary or partial impairments to prop rights are sufficient to merit DP protection.
Cannot have attachment merely because plaintiff believes defendant is liable, or there’s facially valid complaint bec claim
might fail to convince jury. Unlike determining existence of debt, issue does not concern ordinarily uncomplicated matters that lend
themselves to documentary proof. A later hearing might negate the presence of probable cause, but this does not cure temporary
deprivation.
Also, no allegation that Doehr was about to transfer or encumber real prop. A preattachment hearing without at least
requiring some exigent circumstance does not meet reqts of DP.

NORTH GEORGIA FINISHING v DI-CHEM (1975)


Plaintiffs in Georgia are entitled to process of garnishment. Requirements: affidavit before some officer authorized or the clerk of
court, reason to apprehend the loss, bond in 2x the amount sworn to be due. Dichem sued North Georgia, and filed for garnishment.
North Georgia filed bond to pay any final judgment, so the judge discharged the garnishment.
Precedents: Sniadach v Family Finance Corp: can’t garnish wages; Fuentes v Shevin: invalid seizure bec no notice or hearing or
judicial order
Held:
Invalid statute. Writ issued by clerk court without notice or opportunity for an early hearing and without participation of
judicial officer. Affidavit of creditor or his attorney need not have personal knowledge of the facts, as it needs only conclusory
allegations. Writ issuable by clerk of court, and does not need judge. Without bond, defendant cannot challenge the garnishment.
There’s still probability of irreparable injury despite double bond.
Rule 57. Preliminary Attachment
(a) When may be issued –

 Sec. 1. Grounds upon which attachment may issue.


At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of
the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:
(a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of
action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the
Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an
officer of a corporation, or an attorney, factor, broker agent, or clerk, in the course of his employment as such, or by other
person in a fiduciary capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or
any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an
authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the
action is brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his
creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by
publication.

 Imminent insolvency or insolvency itself is not ground


 Ground (f) on non-resident party applies only to natural persons
 Attachment can issue for ©, quasi-delicts, fraud

(b) Who may issue

 Sec. 2. Issuance and contents of order.


An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is
pending, or by the Court of Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the property
in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's
demand, unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order,
which may be the amount sufficient to satisfy the applicant's demand or the value of the property to be attached as stated by the
applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions.

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(c) Requirements for Issuance

 Sec. 3. Affidavit and bond required.


An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who
personally knows the facts, that a sufficient cause of action exists, that the case is one of those mentioned in section 1 hereof, that
there is no other sufficient security for the claim sought to be enforced by the action, and
that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the
sum for which the order is granted above all legal counterclaims. The affidavit, and the bond required by the next succeeding
section, must be duly filed with the court before the order issues.

 If claim for unliquidated damages, attachment may not issue because applicant cannot swear on amount
 Applicant’s bond, aka attachment bond

 Sec. 4. Condition of applicant's bond.


The party applying for the order must thereafter give a bond executed to the adverse party in the amount fixed by the court in its
order granting the issuance of the writ, conditioned that the latter will pay all the costs which may be adjudged to the adverse party
and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not
entitled there to.

(d) What may be attached

 Sec. 5. Manner of attaching property.


The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the
action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as
may be sufficient to satisfy the applicant's demand,
unless the former makes a deposit with the court from which the writ is issued, or gives a counterbond executed to the applicant, in
an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of
costs.
No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is preceded, or
contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the
applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines.
The requirement of prior or contemporaneous service of summons shall not apply
1) where the summons could not be served personally or by substituted service despite diligent efforts, or
2) the defendant is a resident of the Philippines temporarily absent therefrom, or
3) the defendant is a non-resident of the Philippines, or
4) the action is one in rem or quasi in rem.

 Prop subject of litigation or claimed by plaintiff cannot be attached bec such attachment would be pre-emptive of the
judgment.
EXCEPTION: interest of attachment defendant in property under judicial administration
 Overdraft account with bank also can’t be attached bec would be compelling defendant to borrow money
 But in action to foreclose REM, prop not covered by mortgage may be attached if shown that mortgaged prop
insufficient to cover debt
 NOTE: unlike execution debtor, attachment defendant cannot direct sheriff which prop should be attached

(e) How writ implemented

 Sec. 6. Sheriff's return.


After enforcing the writ, the sheriff must likewise without delay make a return thereon to the court from which the writ issued, with a
full statement of his proceedings under the writ and a complete inventory of the property attached, together with any counter-bond
given by the party against whom attachment is issued, and serve copies thereof on the applicant.

 Sec. 7. Attachment of real and personal property; recording thereof.


Real and personal property shall be attached by the sheriff executing the writ in the following manner:

(a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deed of the province
in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the
party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in
the name of any other person, by FILING WITH THE REGISTRY OF DEEDS A COPY OF THE ORDER, together with a
description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by
or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the

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occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has
been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall
contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is
registered, and the registered owner or owners thereof.
The registrar of deed must index attachments filed under this section in the names of the applicant, the adverse party, or the
person by whom the property is held or in whose name it stands in the records. If the attachment is not claimed on the entire
area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to
be affected shall be included in the registration of such attachment;

(b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding
receipt therefor;

(c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing
agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is
issued is attached in pursuance of such writ;

(d) 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 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;

(e) The interest of the party against whom attachment is issued 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.
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.

 2 Kinds of attachment
1) Attachment proper- actual physical custody for tangible things
2) Garnishment- when intangible prop not taken into custody but merely impounded
- essentially is notice of sequestration

 Sec. 8. Effect of attachment of debts, credits and all other similar personal property.
All persons having in their possession or under their control any credits or other similar personal property belonging to the party
against whom attachment is issued, or owing any debts to him, at the time of service upon them of the copy of the writ of attachment
and notice as provided in the last preceding section, shall be liable to the applicant for the amount of such credits, debts or other
similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is
delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment.

 Sec. 9. Effect of attachment of interest in property belonging to the estate of a decedent.


The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair
the power of the executor, administrator, or other personal representative of the decedent over such property for the purpose of
administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is
filed, and in the order made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but the property
attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any
person claiming under him.

 If garnishee does not deliver funds to attaching creditor, attaching creditor may obtain writ of execution or file
separate action, but garnishee cannot be punished for contempt (Tee Bi & Co. v Chartered Bank of India)

 Sec. 10. Examination of party whose property is attached and persons indebted to him or controlling his property;
delivery of property to sheriff.
Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other
personal property belonging to such party, may be required to attend before the court in which the action is pending, or before a
commissioner appointed by the court, and be examined on oath respecting the same. The party whose property is attached may
also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court
may, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person
so required to attend before the court, to be delivered to the clerk of the court or sheriff on such terms as may be just, having
reference to any lien thereon or claim against the same, to await the judgment in the action.

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 Sec. 11. When attached property may be sold after levy on attachment and before entry of judgment.
Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the
property attached is perishable, or that the interests of all the parties to the action will be will be subserved by the sale thereof, the
court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be
deposited in court to abide the judgment in the action.

 Sec. 15. Satisfaction of judgment out of property attached; return of sheriff.


If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out
of the property attached, if it be sufficient for that purpose in the following manner:
(a) By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the
court, or so much as shall be necessary to satisfy the judgment;
(b) If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if
enough for that purpose remain in the sheriff's hands, or in those of the clerk of the court;
(c) By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter
at the time of the attachment of such credits or debts, the amount of such credits and debts as determined by the court in the
action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee.
The sheriff shall forthwith make a return in writing to the court of his proceedings under this section and furnish the parties with
copies thereof.

 Sec. 16. Balance due collected upon an execution; excess delivered to judgment obligor.
After realizing upon all the property attached, including the proceeds of any debts or credits collected, and applying the proceeds to
the satisfaction of the judgment, less the expenses of proceedings upon the judgment, any balance shall remain due, the sheriff
must proceed to collect such balance as upon ordinary execution. Whenever the judgment shall have been paid, the sheriff, upon
reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale
of the property attached not applied to the judgment.

 Sec. 17. Recovery upon the counter-bond.


When the judgment has become executory, the surety or sureties on any counter-bond given pursuant to the provisions of this Rule
to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon
demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and
summary hearing in the same action.

 Sec. 18. Disposition of money deposited.


Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied
under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the
judgment the balance shall be rendered to the depositor or his assignee. If the judgment is in favor of the party against whom
attachment was issued, the whole sum deposited must be refunded to him or his assignee.

 Sec. 19. Disposition of attached property where judgment is for party against whom attachment was issued.
If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received by the sheriff, under
the order of attachment, and all property attached remaining in any such officer's hands, shall be delivered to the party against
whom attachment was issued, and the order of attachment discharged.

(f) Quashal of writ

 Sec. 12. Discharge of attachment upon giving counterbond.


After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf,
may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing,
order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party
with the clerk of the court where the application is made, in an amount equal to that fixed by the court in the order of attachment,
exclusive of costs. But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be
equal to the value of that property as determined by the court. In either case, the cash deposit or the counter-bond shall secure the
payment of any judgment that the attaching party may recover in the action. A notice of the deposit shall forthwith be served on the
attaching party. Upon the discharge of an attachment in accordance with the provisions of this section, the property attached, or the
proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person
appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such
counterbond for any reason be found to be or become insufficient, and the party furnishing the same fail to file an additional counter-
bond, the attaching party may apply for a new order of attachment.

 Sec. 13. Discharge of attachment on other grounds.

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The party whose property has been ordered attached may file a motion with the court in which the action is pending, before or after
levy or even after the release of the attached property, for an order to set aside or discharge the attachment on the ground that the
same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge
shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party
may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due
notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that
1) it was improperly or irregularly issued or enforced, or that
2) the bond is insufficient, or that
3) the attachment is excessive, and the defect is not cured forthwith.

 Discharge of attachment can’t be sought on ground that attaching plaintiff has no cause of action bec that would
advance trial on merits (Benitez v IAC)

CASE:

BRITISH ASSURANCE v IAC (1987)


Scywin sued Varian to collect money, attaching properties of Varian upon posting of bond. Counterbond posted by Varian with
Phil British Assurance as surety. Judgment v Varian. Pending appeal, IAC ordered execution. Since Varian failed to deliver
previously attached properties, IAC ordered Phil British to pay.
Held:
Counterbond can secure decision, even if pending appeal. R57 S5 and S12 says that counterbond to secure payment
of any judgment. S17: when execution be unsatisfied, it is only then that payment of the judgment shall be charged on such
counterbond.

Rules of Court, RULE 57


Sec. 12. Discharge of attachment upon giving counterbond.
After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf,
may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing,
order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party
with the clerk of the court where the application is made, in an amount equal to that fixed by the court in the order of attachment,
exclusive of costs. But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be
equal to the value of that property as determined by the court. In either case, the cash deposit or the counter-bond shall secure the
payment of any judgment that the attaching party may recover in the action. A notice of the deposit shall forthwith be served on the
attaching party. Upon the discharge of an attachment in accordance with the provisions of this section, the property attached, or
the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person
appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such
counterbond for any reason be found to be or become insufficient, and the party furnishing the same fail to file an additional
counter-bond, the attaching party may apply for a new order of attachment.

Sec. 13. Discharge of attachment on other grounds.


The party whose property has been ordered attached may file a motion with the court in which the action is pending, before or after
levy or even after the release of the attached property, for an order to set aside or discharge the attachment on the ground that the
same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge
shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party
may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due
notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was
improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is
not cured forthwith.

(g) Third-party claims

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Rules of Court, RULE 57


Sec. 14. Proceedings where property claimed by third person.
If the property attached is claimed by any person other than the party against whom attachment had been issued or his agent, and
such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and
serves such affidavit upon the sheriff while the latter has possession of the attached party, and a copy thereof upon the attaching
party, the sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of
the sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the
property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of
attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third-party claimant, if such bond
shall be filed.
Nothing herein contained such prevent such claimant or any third person from vindicating his claim to the property, or prevent the
attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or
a separate action.
When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such
bond shall not be required, and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by
the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer
out of the funds to be appropriated for the purpose.

 Aka sheriff’s bond/ indemnity bond- filed by plaintiff


 Remedies of 3rd party claimant- cumulative
1) 3rd party claim or terceria
2) Intervene in main action – not available in execution
3) Reivindicatory action - separate action v sheriff and attaching creditor for recovery of attached prop.
Obtain prelim injunc to enjoin sheriff from attaching
4) If real prop covered by Torrens system, file petition under Prop Regn Decree to cancel annotation of
attachment on ground of error or mistake
5) Damages – recover against sheriff’s bond within 120 days from filing bond (Prof. ARBautista)

(h) Remedies in case of illegal attachment


Rules of Court, RULE 57
Sec. 20. Claim for damages on account of improper, irregular or excessive attachment.
An application for damages on account of improper, irregular or excessive attachment must be filed before the trial or before
appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or sureties,
setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper
hearing and shall be included in the judgment on the main case.
If the judgment of the appellate court be favorable to the party against whom the attachment was issued, he must claim damages
sustained during the pendency of the appeal by filing an application in the appellate court, with notice to the party in whose favor
the attachment was issued or his surety or sureties, before the judgment of the appellate court becomes executory. The appellate
court may allow the application to be heard and decided by the trial court.
Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the
damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by
the latter be insufficient or fail to fully satisfy the award.

 Recoverable damages: actual and moral. Malice or BF are needed only if claiming moral damages.
 Unlike prelim injunction, can recover beyond amt of attachment bond
 General rule: Claim for damages in main action before final judgment.
EXCEPTION: If main action dismissed for lack of jurisdiction or improper venue
 This provision applies only for recovery against attachment bond. Therefore, can recover on counterbond even after
judgment is final and executory

CASES:

INTL CONTAINER TERMINAL SERVICES v CA (1992)


Sharp sued Phil Ports Authority and ITCSI for prelim injunction to stop the negotiation and awarding of a contract to ICTSI. CFI
granted prelim injunction upon posting by Sharp of bond issued by its bonding company. ICTSI filed compulsory counterclaim v
Sharp. Case dismissed on PPA’s and ICTSI’s motion. ICTSI gave notice to bonding company that it was claiming damages vs Sharp
for revoked injunction.
Held:
Court laid down the following principles:
 Damages from prelim attachment, injunction, appointment of receiver or seizure of personal prop, the payment of
which is secured by judicial bond, must be claimed and ascertained in same action with due notice to surety.

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If surety given due notice, he is bound by judgment that may be enforced against principal. Wit of execution may issue against
surety
 If no notice given to surety, judgment vs surety cannot be executed without giving surety an opportunity to be heard.
Hearing will be summary and limited to such new defense (ie. not previously set up by principal).
 Application for damages and notice must be anytime before judgment becomes final and executory.

3. PRELIMINARY INJUNCTION

Rules of Court, RULE 58


Sec. 1. Preliminary injunction defined; classes.
A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a
party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a
particular act or acts, in which case it shall be known as a preliminary mandatory injunction. (1a)
The latter be insufficient or fail to fully satisfy the award.
Sec. 2. Who may grant preliminary injunction.
A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is
pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof.
Sec. 3. Grounds for issuance of preliminary injunction.
A preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission
or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited
period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably
work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done some
act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and
tending to render the judgment ineffectual. (3a)

Sec. 4. Verified application and bond for preliminary injunction or temporary restraining order.
A preliminary injunction or temporary restraining order may be granted only when:
(a) The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded; and
(b) Unless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed
to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or
person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally
decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be
issued.
(c) When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any
initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the
adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied,
by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond,
upon the adverse party in the Philippines.
(d) However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse
party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not apply.
(e) The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary
hearing which shall be conducted within twenty-four (24) hours after the sheriff’s return of service and/or the records are
received by the branch selected by raffle and to which the records shall be transmitted immediately.
Sec. 5. Preliminary injunction not granted without notice; exception.
No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined.
If it shall appear from facts shown by affidavits or by the verified application that GREAT OR IRREPARABLE INJURY would result
to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made,
may issue ex parte a TEMPORARY RESTRAINING ORDER to be effective only for a period of TWENTY (20) DAYS from service
on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order
said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the
same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.
However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer
GRAVE INJUSTICE AND IRREPARABLE INJURY, the executive judge of a multiple-sala court or the presiding judge of a single-
sala court may issue ex parte a temporary restraining order effective for only SEVENTY-TWO (72) HOURS from issuance but he
shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be
served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct
a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary
injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days,
including the original seventy-two hours provided herein.

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In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining
order is deemed automatically vacated. The effectivity of a temporary restraining order is not extendible without need of any
judicial declaration to that effect and no court shall have authority to extend or renew the same on the same ground for which it
was issued.
However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60)
days from service on the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member
thereof shall be effective until further orders.
Sec. 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order.
The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining
order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person
enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or if granted, may be
dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the
issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person
enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a
bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the
denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction
or restraining order granted is too great, it may be modified. (6a)
Sec. 7. Service of copies of bonds; effect of disapproval of same.
The party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the other party,
who may except to the sufficiency of the bond, or of the surety or sureties thereon. If the applicant’s bond is found to be insufficient
in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the injunction shall be dissolved. If the bond of the adverse party is found to be insufficient in
amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification
is not filed forthwith, the injunction shall be granted or restored, as the case may be
Sec. 8. Judgment to include damages against party and sureties.
At the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party, shall be claimed,
ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57.
Sec. 9. When final injunction granted.
If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the
court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the
act or acts or confirming the preliminary mandatory injunction.

US v COLD METAL PROCESS (1944)


US Govt wants to cancel 2 patents for cold rolling metals on the ground that they were obtained thru fraud. US asked for temporary
injunction to restrain corporation from receiving or distributing monies to its stockholders, which might place the monies beyond
reach.
Held: Trial court has discretion to grant temporary injunc. Essential conditions: complaint must allege fats which appear sufficient to
constitute cause of action for injunction; injunction is reasonably necessary to protect the legal rights of the plaintiff; where danger
threatened cannot easily be remedied if injunction is refused and there is no doubt that the act charged is contemplated.
If injury to movant is certain and irreparable, while injury to opposing party wil be inconsiderable and may be adequately
indemnified by a bond => injunc usually granted
Test: balancing of conflicting equities
That relief is doubtful should not be reason to deny injunction. It is doubt which causes litigation.
Impounding of funds by court will preserve them for defendants if defendants win, but if royalties allowed to be paid out to
stockholders, damage to US would be immediate, certain and irreparable.

KEAN v HURLEY (1950)


Injunction v Bailey not to enter the Joyce estate. Decree further stated that all persons who obtain knowledge are enjoined from
going into the land. Hurley et al trespassed on the land, but alleged they were not notified of the injunction, as they ere not
acquainted with defendants in the injunction.
Held: Injunction binding only upon parties, their officers, agents, servants, employees and attorneys or those in active consent or
participating with them. Injunction is usually in personam and binding only on parties and their privies. Suit’s objective was against
the person as distinguished from a judgment against the prop. Injunc can’t bind those not heard or represented or subject them to
penalties for contempt. If those not heard are punished, party is deprived of right to trial.
Can’t hold Hurley et al for contempt.

SILVERS v TRAVERSE (1891)


Injunction issued v Traverse (lessor) to stop unlawful sale of liquor on his premises. Silvers (lessee), who was not a party to the
injunction proceedings , used the premises to sell liquor. Silvers was charged with contempt.
Held:
Decree for abatement of nuisance operates upon prop as well as upon defendant. Decree was a restriction on use of the
prop. One who uses prop unlawfully violated injunction and may be punished for contempt even if he was not party. Otherwise,
defendant can perpetrate nuisance by leasing prop to one who had no notice.

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Grounds for Preliminary Injunction


a. Plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is
preliminary mandatory injunction);
b. The commission of acts or non-performance during pendency of litigation would probably work injustice to the
plaintiff;
c. Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the action and tending to
render judgment ineffectual.

Injunction may be refused or dissolved when:


a. Complaint is insufficient;
b. Defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if
injunction granted or continued while plaintiff can be fully compensated;
c. Plaintiff’s bond is insufficient or defective

 No Preliminary Injunction or TRO may be issued without posting of bond and notice to adverse party and hearing.
 TRO good for only 20 days from service; 60 days for CA; until further orders from SC.
 TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice and irreparable injury.
Good for 72 hours from issuance, within which judge must comply with service of summons, complaint, affidavit and bond,
and hold summary hearing to determine whether TRO should be extended for 20 days. In no case can TRO be longer
than 20 days including 72 hours.

 No TRO, preliminary injunction or preliminary mandatory injunction may issue against the government in cases involving
implementation of government infrastructure projects. (Garcia vs. Burgos, reiterated in Administrative Circular no. 7-99,
promulgated June 25,1999)

 Since it’s a provisional remedy, its lifetime cannot extend beyond that of litigation from whence it is issued
 Purpose: to preserve status quo (last actual peaceable uncontested status which preceded the pending controversy). It is
the status before the controversy, not before the litigation.
 As a rule, is in personam and binds only parties and their privies.
EXCEPTION: If it restricts use of prop which follows it as a burden (Kean v Hurley, US case)

 For FE and UD, Court is expressly authorized to issue prelim mandatory injunction to restore plaintiff in possession, if
defendant’s appeal is frivolous or dilatory, or appeal of plaintiff is prima facie meritorious
 Right to relief must refer to an existing right, not contingent or future

 If issued without a hearing and without bond, it’s a TRO


 Injunctions not allowed in labor disputes, cases involving govt concessions, licenses and permits, infrastructures and
natural resources devt projects and public utilities operated by govt, against mortgage foreclosures by GFI’s and against
collection of taxes; consummated acts, criminal prosecution, interference with coordinate courts and transfer of
possession
 Injunction operates only within territory of issuing court.
EXCEPTION: Can enjoin acts pursuant to illegal admin decisions of officials from outside the territory from being
committed within territory of issuing court

 Dissolve injunc where irreparable damage to person being enjoined while applicant can be fully compensated for
such damages => rule of relative or comparative inconvenience
 Injunc can be dissolved even ex parte (Farrales v Fuentecilla)
 If judgment of dismissal, and there is appeal, prelim injunc not dissolved unless court says so
 But if court grants permanent injunction in judgment, appeal does not reinstate injunc

 Injunc bond to answer for all damages. Malice or BF required only if suit for damages based on malicious
prosecution. Otherwise, if malice or BF required, filing bond is useless

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Table 18: Preliminary Attachment vs. Preliminary Injunction


PRELIMINARY ATTACHMENT PRELIMINARY INJUNCTION
PURPOSE To seize the property of the debtor in advance of ( Note : Granted at any stage of the
final judgment and to hold it for purposes of action prior to final judgment)
satisfying the said judgment; or
The rationale for preliminary
To enable the court to acquire jurisdiction over the injunction is to preserve the status quo. It is
action by the actual or constructive seizure of the important to preserve the status quo since
property in those instances where personal service otherwise, the judgment may be rendered
of summons on the creditor cannot be effected. academic. The status quo is the last, actual,
peaceable, uncontested status prior to the
controversy which gave rise to litigation
(Rodolfo v. Alfonso).
MAY IT BE ISSUED EX Yes Generally no
PARTE?
PRINCIPLE OF PRIOR * PRINCIPLE OF PRIOR OR CONTEMPORARY * PRINCIPLE OF PRIOR OR
OR CONTEMPORARY JURISDICITON (Preliminary Attachment) CONTEMPORARY JURISDICTION:
JURISDICTION
- Enforcement of writ of preliminary attachment When an application for a writ of preliminary
must be made preceded by or simultaneously injunction or a temporary restraining order is
accompanied by service of summons, copy of included in a complaint or any initiatory
complaint, application and affidavits for the pleading, the case, if filed in a multiple-sala
attachment and the bond upon the adverse party; court, shall be raffled only after NOTICE to
and IN THE PRESENCE of the adverse
BUT the requirement of prior or contemporaneous party or the person to be enjoined.
service of summons shall not apply where the
summons could not be served despite diligent In any event, such notice shall be preceded,
efforts, or the defendant is a resident of the Phils or contemporaneously accompanied by
temporarily absent therefrom, or the defendant is a service of summons, together with a copy of
non-resident of the Phils or the action is in rem or the complaint and the applicant’s affidavit and
quasi in rem. bond, upon the adverse party in the Phils;

BUT the requirement of prior or


contemporaneous service of summons shall
not apply where the summons could not be
served despite diligent efforts, or the
defendant is a resident of the Phils temporarily
absent therefrom, or the defendant is a non-
resdent of the Phils.

* Difference with principle in preliminary


attachment – in attachment, the principle
applies only in the implementation of the writ,
while in applications for injunction or TRO, this
principle applies before the raffle and
issuance of the writs or TRO.
GROUNDS
a) Recovery of specified amount of money and a) Plaintiff is entitled to relief sought which
damages, except moral or exemplary, where party consists in restraining or requiring the
is about to depart from the Phils with the intent to performance of acts (latter is preliminary
defraud creditors; mandatory injunction);

b) Action for money or property embezzled or for b) The commission of acts or non-performance
willful violation of duty by public officers, officers of during pendency of litigation would probably
corp, agent or fiduciary; work injustice to the plainitiff;

c) Recovery of possession of property (both real c) Defendant is doing or about to do an act


and personal) unjustly detained, when the property violating plaintiff’s rights respecting the subject
is concealed or disposed of to prevent is being of the action and tending to render judgment
found or taken; ineffectual.

d) Action against party guilty of fraud in contracting


the debt or incurring the obligation or in the
performance thereof;

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e) Action against party who is concealing or


disposing of property, or is about to do so, with
intent to defraud creditors;

f) Action against party who is not a resident of the


Phils and cannot be found therein upon who service
by publication can be made.
WHEN DISCHARGED/ * When preliminary attachment is discharged * Injunction may be refused or dissolved
DISSOLVED? a) Debtor posts a counterbond or makes requisite when:
cash deposit – if attachment to be discharged is a) Complaint is insufficient;
with respect to particular property, counterbond or
deposit shall be equal to the value of the property b) Defendant is permitted to post a
as determined by the court; in all other cases, counterbond it appearing that he would sustain
amount of counterbond should be equal to the great and irreparable injury if injunction
amount fixed in the order of attachment. granted or continued while plaintiff can be fully
compensated;
* CASH DEPOSIT OF COUNTERBOND SHALL
SECURE THE PAYMENT OF ANY JUDGMENT c) Plaintiff’s bond is insufficient or defective.
THAT ATTACHING PARTY MAY RECOVER
* No preliminary injunction or TRO may be
b) Applicant’s bond is insufficient or sureties fail to issued without posting of bond and notice to
justify; adverse party and hearing.

c) Attachment was improperly or irregularly issued;


Ways of Dissolving an Injunction
d) Property attached is exempt from execution;
1. no ground
e) Judgment is rendered against attaching party; 2. bond insufficient
3. comparative or relative damage
f) Attachment is excessive – discharge is with The defendant will suffer more
respect to the excess damage if the injunction is
issued
* Application for discharge may only be filed with
the court where the action is pending and may be
filed even before enforcement of the writ so long as
there has been an order of attachment.

MOTION TO SET ASIDE / DISCHARGE ATTACHMENT:


Who files: party whose property has been
ordered attached
When: While the action is pending,
before or after levy, or even
After the release of the attached
property
Grounds: (1) The debtor has posted a
counter-bond or has made the
requisite cash deposit;
(2) The writ of attachment was
improperly or irregularly issued;
E.g., no ground for attachment;
affidavit filed is defective or
Insufficient
(3) The writ of attachment was
improperly or irregularly enforced;
or
(4) The bond is insufficient;
(5) The attachment is excessive
(Note: the discharge shall be
limited to
the excess);
(6) The property attached is
exempt from execution and
preliminary attachment;
(7) The judgment is rendered
against the attaching creditor;

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BOND 3 Kinds of Bonds Applicant’s BOND

(1) Applicants Bond (Attachment Bond) Amount: Fixed by court


Amount: is based on the amount due or the Condition: that the applicant will pay to
value of the property. such party or person all
Conditioned: that the applicant will pay all the damages which he may
costs which may be adjudged to sustain by reason of the
the adverse party and all injunction or temporary
damages which he may sustain restraining order if the court
by reason of the attachment , if should finally decide the
the court finally adjudge that the applicant was not entitled
applicant was not entitled thereto.
thereto. Counter bond
 For the adverse party to collect actual Who pays: Party enjoined
damages, good faith is irrelevant. For the  To dissolve injunction because it
adverse party to collect moral damages, the may cause irreparable damage to
party must allege bad faith. the party enjoined and the applicant
 Recovery against the attachment bond must can be compensated
be filed (sec. 20, Rule 57)
a) Before trial  Amount fixed by court
b) Before appeal is perfected  Conditioned that He will pay all
c) Before judgment becomes executory damages which the applicant may
 The time is limited because the issue is suffer by the denial or dissolution of
whether or not the adverse party or creditor is the injunction or restraining order
entitled to the attachment.

(2) Counterbond
 The amount is based on the value of the
property.
 The value of the property is determined by
affidavits. It is not conclusive. So, in case of
disagreement as to the value, it will be decided
by the court.
 The counterbond is liable if judgment is
rendered in favor of the attaching creditor and
the judgment cannot be satisfied.
 The general rule is that the plaintiff-creditor
must file a claim against the counterbond in
the same action. There is an exception – if the
main action is dismissed for lack of jurisdiction
or improper venue. 102

(3) Sheriff’s Bond (Indemnity Bond)


 The sheriff’s bond is filed by the plaintiff.
 The amount is based on the value of the
property.
 The value of the property is determined by
affidavits. It is not conclusive. So, in case of
disagreement as to the value, it will be decided
by the court.
 The bond answers for damages which 3rd
parties may suffer when the sheriff does not
re-deliver the property to them103

102
Problem: Plaintiff attaches and levies property. The counterbond is filed. Trial ensues. At the end, judgment is rendered in favor of the plaintiff. Plaintiff-creditor recovers
against the counterbond even if the judgment is final and executory. Defendant-debtor argues that the plaintiff-creditor cannot recover against the counterbond since the
judgment is now final and executory, relying on Sec. 20, Rule 57. Rule.

Answer: The plaintiff-creditor can recover against the counterbond even if it is final and executory. Sec. 20, Rule 57 refers to recovery against the attachment bond and not
against the counterbond.

Problem: After trial the judgment is rendered in favor of the plaintiff. The defendant files a notice of appeal. Can the plaintiff recover on the counterbond pending appeal.

Answer: Yes, since the rules don’t distinguish if appealing is pending or not for as long as the judgment is unsatisfied.

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4. RECEIVERSHIP

Rules of Court, RULE 59


Sec. 1. Appointment of receiver.
Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the
court where the action is pending or by the Court of Appeals or by the Supreme Court, or a member thereof, in the
following cases:
(a) When it appears from the verified application, and such other proof as the court may require, that the party applying for the
appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and
that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to
administer and preserve it;
(b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted
or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that
the parties have so stipulated in the contract of mortgage;
(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to
aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of
preserving, administering, or disposing of the property in litigation.
During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and
decided by the court of origin and the receiver appointed to be subject to the control of said court. (1a)
Sec. 2. Bond on appointment of receiver.
Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against
whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all
damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such
appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional
bond as further security for such damages
Sec. 3. Denial of application or discharge of receiver.
The application may be denied, or the receiver discharged, when the adverse party files a bond executed to the applicant, in an
amount to be fixed by the court, to the effect that such party will pay the applicant all damages he may suffer by reason of the acts,
omissions, or other matters specified in the application as ground for such appointment. The receiver may also be discharged if it
is shown that his appointment was obtained without sufficient cause
Sec. 4. Oath and bond of receiver.
Before entering upon his duties, the receiver shall be sworn to perform them faithfully, and shall file a bond, executed to such
person and in such sum as the court may direct, to the effect that he will faithfully discharge his duties in the action or proceeding
and obey the orders of the court
Sec. 5. Service of copies of bonds; effect of disapproval of same.
The person filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy thereof on each interested
party, who may except to its sufficiency or of the surety or sureties thereon. If either the applicant’s or the receiver’s bond is found
to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties
approved after justification is not filed forthwith, the application shall be denied or the receiver discharged, as the case may be.
If the bond of the adverse party is found to be insufficient in amount or the surety or sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the receiver shall be appointed or re-
appointed, as the case may be.
Sec. 6. General powers of receiver.
Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the power to bring and
defend, in such capacity, actions in his own name; to take and keep possession of the property in controversy; to receive rents; to
collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; to
compound for and compromise the same; to make transfers; to pay outstanding debts; to divide the money and other property that
shall remain among the persons legally entitled to receive the same; and generally to do such acts respecting the property as the
court may authorize. However, funds in the hands of a receiver may be invested only by order of the court upon the written consent
of all the parties to the action.
No action may be filed by or against a receiver without leave of the court which appointed him.
Sec. 7. Liability for refusal or neglect to deliver property to receiver.
103
Problem: RTC Q.C. rules in favor of the plaintiff. A writ of execution is issued. The sheriff sees that the defendant has property in Pasig. The defendant gets an injunction
from RTC Pasig to prevent the sheriff from levying on the property. Is this allowed?

Answer: Yes, this is allowed. This is not interference by RTC Pasig. RTC Pasig is merely telling the sheriff not to levy on that property in Pasig,. It is not interfering with the
judgment of RTC Q.C. itself (Manila Herald Publishing v. Ramos)

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A person who refuses or neglects, upon reasonable demand, to deliver to the receiver all the property, money, books, deeds,
notes, bills, documents and papers within his power or control, subject of or involved in the action or proceeding, or in
case of disagreement, as determined and ordered by the court, may be punished for contempt and shall be liable to
the receiver for the money or the value of the property and other things so refused or neglected to be surrendered,
together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of
such refusal or neglect. (n)
Sec. 8. Termination of receivership; compensation of receiver.
Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it
shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and
other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from
further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant,
to be taxed as costs against the defeated party, or apportioned, as justice requires.
Sec. 9. Judgment to include recovery against sureties.
The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be
claimed, ascertained, and granted under the same procedure prescribed in section 20 of Rule 57.

MAXWELL v ENTERPRISE WALL PAPER MFG (1942)


Maxwell, a minority shareholder, asked for appointment of a receiver. Trial court ordered appointment of receiver without notice to
defendants.
Held:
Granting of receivership is an extraordinary and drastic remedy. It is not to be resorted if milder measures will suffice. It
may be granted without notice or hearing to defendant only if there is actual emergency, when the right of plaintiff is undoubted, and
when protection an be given in no other way.
Company is not in danger of insolvency. Alleged employment of relatives, destruction of records, and sale
to certain corporations to favor defendants are not continuing acts, or nothing can be done about them anymore.
Remedy is accounting or injunction, but no immediate emergency to receivership.

1. When receiver may be appointed:


a. Party has an interest in the property or fund subject of the action and such is in danger of being lost, removed, or
materially injured;
b. Action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured
and that its value is probably insufficient to discharge the mortgage debt, OR that the parties have stipulated in the
contract of mortgage;
c. After judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or to aid in execution
when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy
judgment, or to carry out the judgment.
d. When appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property
in litigation.

2. When receivership may be denied/lifted


a. Appointment sought is without sufficient cause;
b. Adverse party files sufficient bond for damages;
c. Applicant or receiver’s bond is insufficient.

3. Subject of receivership
 Generally, receivership is only for prop subj of litigation
EXCEPT: where a receiver is appointed for the property of the judgment obligor to implement writ of execution
(R59 S1 and R39 S41)
 Generally, prop in custodia legis cannot be placed under receivership.
EXCEPT: property subj of foreclosure

4. Both the applicant for the receivership and the receiver appointed must file separate bonds.

4. In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20, Rule 57,
whether is be damages against the applicant’s bond for the unlawful appointment of the receiver or for enforcing the liability of the
sureties of the receiver’s bond by reason of the receiver’s management (in the latter case, no longer need to file a separate action).

5. REPLEVIN

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Rules of Court, RULE 60


Sec. 1. Application.
A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before
answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided
Sec. 2. Affidavit and bond.
The applicant must show by his own affidavit or that of some other person who personally knows the facts:
(a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;
(b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of
his knowledge, information, and belief;
(c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of
execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such
seizure or custody; and
(d) The actual market value of the property.
The applicant must also give a bond, executed to the adverse party in DOUBLE THE VALUE OF THE PROPERTY as stated in the
affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the
adverse party of such sum as he may recover from the applicant in the action.
Sec. 3. Order.
Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin
describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his
custody.
Sec. 4. Duty of the sheriff.
Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application,
affidavit, and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in
his custody.
If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not
delivered, he must cause the building or enclosure to be broken open and take the property into his possession.
After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be
responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the
same.
Sec. 5. Return of property.
If the adverse party objects to the sufficiency of the applicant’s bond, or of the surety or sureties thereon, he cannot immediately
require the return of the property, but if he does not so object, he may, at any time before the delivery of the property to the
applicant, require the return thereof, by filing with the court where the action is pending a bond executed to the applicant, in double
the value of the property as stated in the applicant’s affidavit for the delivery thereof to the applicant, if such delivery be adjudged,
and for the payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on
the applicant.
Sec. 6. Disposition of property by sheriff.
If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the bond,
or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant’s bond or
approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient
and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is
not delivered to the applicant, the sheriff must return it to the adverse party.
Sec. 7. Proceedings where property claimed by third person.
If the property taken is claimed by any person other than the party against whom the writ of replevin had been issued or his agent,
and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefore, and serves
such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall
not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said
sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property
under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same.
No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefore is
filed within one hundred twenty (120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third-party claimant if such bond
shall be filed.
Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the
applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a
separate action.
When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such
bond shall not be required, and in case the sheriff is sued for damages as a result of the replevin, he shall be represented by the
Solicitor General, and if held liable therefore, the actual damages adjudged by the court shall be paid by the National Treasurer out
of the funds to be appropriated for the purpose.
Sec. 8. Return of papers.
The sheriff must file the order, with his proceedings indorsed thereon, with the court within ten (10) days after taking the property
mentioned therein

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Sec. 9. Judgment.
After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render
judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be
made, and also for such damages as either party may prove, with costs.
Sec. 10. Judgment to include recovery against sureties.
The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be
claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57.

 Prop under replevin can be used. If damaged, recover on his bond (Prof. ARBautista)

FUENTES v SHEDVIN (1972)


Fuentes purchased under a conditional sales contract a gas stove and phonograph. Under the ©, she is entitled to possession until
she defaults in the installment payments. She had only $200 remaining to be paid when Firestone applied ex parte with the clerk for
replevin.
Under Florida statute, can gave replevin on bare assertion of party and on bond 2x the value of the prop. No previous notice to
defendant. The same moment that defendant receives complaint is the same moment that prop is seized. Only after prop seized can
he file for repossession within 3 days. But if he does not file bond within these 3 days, prop transferred to person seeking writ.
Held:
Unconsti bec no notice and hearing before seizure. Purpose of such requirement is to protect use and possession of prop
from arbitrary enroachment. Notice and hearing serve full purpose when deprivation can still be prevented. Exception: extraordinary
situations where valid govt interest at stake. No extraordinary situation in this case bec only private gain at stake.
Bond is not a substitute for an informed evaluation by a neutral official or for a prior hearing.
Temporary deprivation of prop is still deprivation which violated due process.
Even if appellants still lack full ownership, protection of property interest includes interest in possession and use.

6. ALIMONY PENDENTE LITE


Rules of Court, RULE 61
Section 1. Application.
At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application
for support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and
accompanied by affidavits, depositions or other authentic documents in support thereof.
Sec. 2. Comment.
A copy of the application and all supporting documents shall be served upon the adverse party, who shall have five (5) days to
comment thereon unless a different period is fixed by the court upon his motion. The comment shall be verified and shall be
accompanied by affidavits, depositions or other authentic documents in support thereof.
Sec. 3. Hearing.
After the comment is filed, or after the expiration of the period for its filing, the application shall be set for hearing not more than
three (3) days thereafter. The facts in issue shall be proved in the same manner as is provided for evidence on motions.
Sec. 4. Order.
The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having
due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question
involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of
support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse
party, and the terms of payment or mode for providing the support. If the application is denied, the principal case shall be tried and
decided as early as possible.
Sec. 5. Enforcement of order.
If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion, issue
an order of execution against him, without prejudice to his liability for contempt.
When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to the
applicant may, after due notice and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement
against the person ordered to provide such support.
Sec. 6. Support in criminal cases.
In criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect
thereof has not been waived, reserved or instituted prior to its filing, the accused may be ordered to provide support pendente lite
to the child born to the offended party allegedly because of the crime. The application therefor may be filed successively by the
offended party, her parents, grandparents or guardian and the State in the corresponding criminal case during its pendency, in

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accordance with the procedure established under this Rule.


Sec. 7. Restitution.
When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable
therefor, it shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of
actual payment, without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally
obliged to give the support. Should the recipient fail to reimburse said amounts, the person who provided the same may likewise
seek reimbursement thereof in a separate action from the person legally obliged to give such support.

 Alimony pendente lite applies to actions for support, legal separation, annulment

 Unlike replevin, alimony not granted ex parte

 Generally, money judgments are enforced thru execution and not thru contempt
EXCEPT: 1) Support pendente lite
2) R39 S40 where judgment obligor can pay in installments

Table 19: SUMMARY OF BONDS APPLICANT’S BOND


Preliminary Attachment Preliminary Injunction Receivership Replevin
Who pays/ files Applicant Applicant Applicant Applicant

For whom Executed to the adverse Executed to the party or Executed to the party Executed to the
party person enjoined against whom the adverse party
application is presented
Filed with the court Filed with the court
Amount Amount fixed by Court Amount fixed by the Amount fixed by court DOUBLE the value of
Court the property as stated
in the affidavit
Condition Conditioned that the : that the applicant Applicant will pay such For the return of the
latter will pay all the will pay to such party or party all damages he property to the adverse
costs which may be person all damages may sustain by reason party if such return be
adjudged to the adverse which he may sustain of the appointment of adjudged
party by reason of the such receiver in case
injunction or temporary the applicant shall have And for the payment to
And all damages which restraining order if the procured such the adverse party of
he may sustain by court should finally appointment without such sum as he may
reason of the decide the applicant sufficient cause recover from the
attachment was not entitled thereto. applicant in the action.

Table 20: COUNTERBOND


Who pays Party whose property Party or Person enjoined Adverse party
has been attached,

Or the person appearing


on his behalf
For Whom Executed to the Executed to the applicant Executed to the
attaching party of the injunction applicant

Filed with the clerk of Filed with Court Filed with the Court
court
Intention To move for the To dissolve injunction Require the return of the
discharge of the because it may cause property

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attachment wholly or in irreparable damage to


part on the security given the party enjoined and
the applicant can be
compensated

Amount GR: Equal to the amount Amount fixed by court DOUBLE the value of
fixed by the court in the the property as stated in
order of attachment, the applicant’s affidavit
exclusive of costs

BUT: if the attachment is


sought to be discharged
with respect to a
particular property, the
counterbond shall be
equal to the value of that
property as determined
by the court.
Condition Shall secure the He will pay all damages For the delivery thereof
payment of any which the applicant may to the applicant, if such
judgment that the suffer by the denial or delivery be adjudged,
attaching party may dissolution of the and for the payment of
recover in action injunction or restraining such sum to him as may
order be recovered against
the adverse party

Table 21: OTHER BONDS:


Preliminary Attachment: Preliminary Injunction: Receivership: Replevin:

SHERIFF’S BOND or Not Applicable RECIEVER’S BOND SHERIFF’S BOND or


INDEMNITY BOND INDEMNITY BOND
Who pays Applicant/Attaching party N/A Receiver Applicant

For Whom Third party claimant N/A Executed to such


person
Amount Sum not less than the N/A in such sum as the Sum not less than the
value of the property court may direct value of the property
levied upon based on the
applicant’s affidavit.

But in case of
disagreement as to the
value, the Court shall
determine the value

Condition The Sheriff shall not be N/A That he will faithfully To indemnify third party
liable for damages for the discharge his duties in claimant
taking or keeping of such the action or
property, to any such third- proceeding and obey
party claimant, if such the orders of the court
bond shall be filed.

To indemnify third party


claimant. The bond
answers for damages
which 3rd parties may
suffer when the sheriff
does not re-deliver the
property to them

Table 22: Distinguish between replevin and preliminary attachment.

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REPLEVIN PRELIMINARY
ATTACHMENT

When applied for At commencement of action or at any time At commencement of action or at any time
before answer before entry of judgment

Personal property of owner, or to whose Real or personal property in the Philippines


Property involved
possession claimant is entitled belonging to the debtor

Recovery of possession of such property Attachment of sufficient property to satisfy


Prayer
the applicant’s demand

Yes Yes
Affidavit and bond?
Applicant’s bond: 2x Applicant’s bond: amount fixed in Order
Bonds involved
Counterbond: amount equal to that fixed in
Counterbond: 2x Order
Indemnity: ≥x
Indemnity bond: ≥x
The sheriff takes possession of the The sheriff takes the property and keeps it in
What is done with the property?
property and retains it in his custody. If his custody.
(personal property) within 5 days from the taking of the
adverse party does not avail of any of the
remedies available to him, the sheriff shall
deliver the property to the applicant.

Property must not be: Property must not be exempt from execution.
Limitations
(1) exempt from execution;
(2) seized under:
- writ of execution;
- preliminary attachment
(3) taken for a tax assessment or a fine
pursuant to law

Table 23: Preliminary Injunction v. Prohibition


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

Table 24: Summary of Provisional Remedies104

Notice of lis Preliminary Preliminary Receivership Replevin Support ‘pendente


pendens attachment injunction lite’

When it may be -at the -at any stage of -during proceeding -at the -at the
applied for commencement of action/proceeding -after judgment commencement of commencement of
the action prior to the judgment -during pendency of the action the proper
-at any time before or final order an appeal -any time before action/proceeding
entry of judgment answer -at any time prior to
the judgment or final
order
-pending appeal from
a final judgment
(ramos v. ca, 45
SCRA 604)
Actions involved/ -actions affecting the 1)action for recovery It must be established 1)when it appears Affidavit of applicant -action for legal
Grounds for issuance title or the right of of a specified amount that: that the party or some other person separation
possession of real of money or applying has an who personally knows -acknowledgement of
property damages, other than 1)applicant is entitled interest in the the facts should state natural children
moral & exemplary on to the relief property/fund w/c is the ff: -support

104
Toie Biruar

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a COA arising from demanded, & the the subject of the -in criminal cases
L,C,QC,D or QD whole or part of such action or proceeding 1)that applicant is the where civil liability
against a party who is relief consists in & that such is in owner of the prop includes support for
about to depart from restraining the danger of being lost, claimed, particularly the offspring as a
the Phils w/ intent to commission or removed or materially describing it, or is consequence of the
defraud creditors. continuance of the injured unless a entitled to the crime & the civil
act/s complained of, receiver be appointed possession thereof; aspect thereof has
2)action for money or or in requiring the to administer or not been waived,
property embezzled performance of act/s, preserve it. 2)that the prop is reserved or instituted
or fraudulently either for a limited wrongfully detained prior to its filing.
misapplied or period or perpetually. 2)in an action for by the adverse party,
converted to his own foreclosure of a alleging the cause of
use by: -public officer 2)the commission, mortgage, when it detention thereof
-officer of a corp., continuance or non- appears that the accdg to the best of
-an atty, factor, performance of the property is in danger his knowledge, info &
broker, agent or clerk act/s would probably of being wasted/ belief;
in the course of his work injustice to the dissipated/ materially
employment as such applicant. injured & that its 3)that the prop has
or value is probably not been distrained or
-by any other person 3)a party, court, insufficient to taken for a tax
in a fiduciary capacity, agency or a person is discharge the assessment or a fine
or for a willful doing, threatening, or mortgage debt, or pursuant to law, or
violation of duty. is attempting to do, or that the parties have seized under a writ of
is procuring or so stipulated in the execution or prelim
3)action to recover suffering to be done, contract. attachment, or
the possession of some act/s probably otherwise placed
property unjustly or in violation of the 3)after judgment: under custodia legis
fraudulently taken, rights or the applicant -to preserve the prop or if so seized, that it
detained or re: subject of the during appeal exempt from such
converted, when the action or proceeding, -to dispose of it accdg seizure or custody;
property, or any part & tending to render to the judgment and
thereof, has been the judgment -to aid execution
concealed, removed, ineffectual. when the execution 4)the actual market
or disposed of to has been returned value of the prop.
prevent its being *In forcible entry & unsatisfied or the
found or taken by the unlawful detainer judgment obligor
applicant or an cases, court is refuses to apply his
authorized person. expressly authorized prop in satisfaction of
to issue a writ of the judgment
4)action against a prelim mandatory -otherwise to carry
party who has been injunction to restore the judgment into
guilty of a fraud in plaintiff in his effect
contracting the debt possession (rule 70,
or incurring the sec.15) or where the 4)whenever in other
obligation upon w/c court is satisfied that cases, it appears that
the action is brought, defendant’s appeal is the appointment of a
or in the performance frivolous or dilatory or receiver is the most
thereof. that appeal of the convenient & feasible
plaintiff of prima facie means of preserving,
5)action against a meritorious administering or
party who has disposing of the prop
remover or disposed in litigation.
of his property, or is
about to do so,
w/intent to defraud
creditors.

6)action against a
party who does not
reside & is not found
in the Phils., or on
whom summons may
be served by
publication.
Notice & hearing -either ex parte or -no prelim injunction -receiver may be -writ issued merely -hearing required, not
upon motion w/ notice shall be granted w/out appointed ex parte upon the filing of an more than 3 days
& hearing hearing & prior notice affidavit & replevin after filing of comment
to the party sough to bond or expiration of filing
-no levy on be enjoined period
attachment shall be -where the injunction
enforced unless is issued w/out
preceded or hearing & w/out bond
contemporaneously it is generally known
accompanied by the as a temporary
service of summons restraining order or a
together with copy of TRO
complaint,
application,
applicant’s affidavit &
bond, & on the order
& writ of attachment,
on the defendant
within the Phils.

*This shall not apply:


-where the summons
could not be served
personally or by

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substituted service
despite diligent
efforts;
-if defendant is a
citizen of the Phils.
temporarily absent
therefrom;
-the defendant is a
non-resident of the
Phils., or
-the action is one in
rem or quasi in rem.
Who may ask for -plaintiff or the -plaintiff or any proper -party praying for the -any party
relief defendant when party so that property recovery of
affirmative relief is of adverse party may possession of
claimed in his answer. be attached personal property
Who may grant -court in w/c action is -court where action is -court in w/c action is -court where the
pending, or by CA or pending pending or by the CA action is pending
SC -if pending in CA or or SC, or a member
SC, it may be issued thereof
by said court or any -during pendency of
member thereof appeal, appellate
court may allow
application to be filed
in & decided by the
court of origin & the
receiver to be
appointed to be
subject to control of
said court
Require- -affidavit of -verified application -verified application -affidavit -verified application
ments for issuance attachment -applicant’s bond -applicant’s bond, and -applicant’s bond w/c for support pendente
-applicant’s -summary hearing, additional bond at the is double the value of lite stating the
bond/attachment except in emergency discretion of the court the prop as stated in grounds for the claim
bond cases the affidavit & the financial
conditions of both
parties &
accompanied by
affidavits, depositions
or other authentic
documents
-verified comment of
adverse party within 5
days after service of
application unless
court fixes diff period
-hearing 3 days after
comment is filed
Procedure -party may record in 1)REAL PROPERTY -receiver shall be -sheriff must serve a -if granted, court shall
/Enforce- the office of the or growing crops sworn to perform his copy of the order to fix the amount of
ment registry of deeds of thereon or any duties and file a bond. the adverse party, money to be
the province in w/c interest therein with copy of provisionally paid or
the property is -attachment is by application, affidavit & such other forms of
situated a notice of filing of the notice of bond. support, & the terms
the pendency of the attachment w/ the -sheriff takes actual of payment or mode
action. Notice shall appropriate registry of physical custody of for providing the
contain the names of deed, w/ description the prop & retains it support.
the parties & the of the prop for 5 days after w/c
object of the action or attached,& notice that he may either turn it
defense, & a such prop is attached. over to plaintiff or
description of the - a copy of such order, return it to defendant
prop affected thereby. description & notice
must be left with the
occupant of the prop,
if any, or with such
other person or agent
if found within the
province.
-notice shall contain a
reference to the # of
the certificate of title,
volume & page in the
registration book, &
the registered
owner/s thereof if the
prop is brought under
the Land Registration
Act/ Property
Registration.

2)PERSONAL PROP
capable of manual
delivery – sheriff shall
attach it by taking &
keeping it in his
custody after issuing
corresponding
receipt.

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3)GARNISHMENT of
INTANGIBLE PROP
- stocks/shares or
interest in such of any
corp or company, by
leaving w/ the pres or
managing agent
thereof, a copy of the
writ & notice of
attachment.
-debts & credits, by
leaving w/ the person
owing such debts, or
having in his
possession or under
his control, such
credits or other
personal prop, or w/
his agent, a copy of
the writ & notice of
attachment.
-interest of the party
against whom
attachment is issued
in prop belonging to
estate of decedent,
as heir, legatee or
devisee, by serving
the executor/
administrator/ other
personal rep of the
decedent w/ a copy of
the writ & notice of
attachment. Such
documents shall also
be filed in the office of
the clerk of court in
w/c estate is being
settled & served upon
heir/ legatee/ devisee
concerned.

4)prop in CUSTODIA
LEGIS
-a copy of the writ
shall be filed w/ the
proper court or quasi-
judicial agency &
notice of the
attachment served
upon custodian of the
prop.

*sheriff must make a


return to issuing court
w/ full statement of
proceedings &
complete inventory of
the prop attached,
together w/ any
counter-bond given
by defendant & serve
applicant w/ copies
thereof.

*For satisfaction of
judgment out of prop
attached, see Sec15,
Rule 57.
Property involved -both real & personal -there is 1 instance -only personal -money or other forms
-only property in the when receiver may be property of support
Phils. of the adverse appointed for prop not
party w/c is not subject of litigation –
exempt from where receiver is
execution & only such appointed for prop of
w/c is sufficient to judgment obligor as a
satisfy demand means of
-property w/c is implementing writ of
subject of the execution
litigation cannot be -generally, prop in
attachment (except in custodia legis cannot
an action to foreclose be placed under
an REM is property is receivership except in
insufficient to cover mortgage
debt) foreclosures.
-property in custodia
legis in limited

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instances only
Remedies Improper/ irregular/ If wrongfully issued Improper or irregular -3rd party claimant can -when judgment or
excessive attachment -party enjoined may appointment of a vindicate his claim to final order finds that
-defendant should file recover his damages receiver the property. the person providing
claim for damages in against the injunction -damages shall be -applicant may claim support is not liable
the issuing court bond by filing claim in claimed or damages against a 3rd therefore, recipient
before trial or before same case before ascertained in the party claimant who shall be ordered to
appeal is perfected, final judgment with same action and only filed a frivolous or return amounts
or before judgment notice to the in that action plainly spurious claim. already paid with
becomes executory surety/sureties. legal interest from the
w/ due notice to the actual payment.
surety/sureties. *Proof of malice or BF Recipient may claim
Damages may only is required only if the reimbursement from
be awarded after suit against the bond person legally obliged
proper hearing & shall were for damages to give support.
be included in the founded on malicious
judgment. prosecution.
-if judgment of *Enjoined person
appellate court be cannot recover
favorable to damages beyond the
defendant, the latter bond.
must claim damages
by filing application w/
the appellate court w/
notice to the attaching
party or his
surety/sureties before
the judgment of
appellate court
becomes executory.
Appellate court may
allow application to
be heard & decided
by the trial court.

*Exception: claim for


damages may be filed
in separate action if
the main action in w/c
attachment was
issued was dismissed
for lack of jurisdiction
or for improper
venue.
*No need to prove
malice or BF in actual
damages, only in
moral damages.
*Defendant can
recover damages
beyond the amount of
the attachment bond.
Discharge & quashal -upon a showing that -where it is shown at Denial of application
of writ writ had been the hearing that such or discharge of
improperly or issuance or receiver
irregularly issued or continuance thereof -where adverse party
enforced. would cause files a bond to the
-if attachment is irreparable damage to effect that such party
excessive, discharge the party enjoined will pay applicant all
shall be limited to the while the applicant damages he may
excess. can be fully suffer by reason of
compensated for the acts specified in
*defendant must file damages he may the application.
motion order to set suffer & the adverse -if it shown that
aside or discharge party files a bond in appointment id w/out
writ where the action an amount fixed by sufficient cause
is pending before or the court to answer -if either the
after the levy or even for the damages (rule applicant’s or
after release of the of relative or receiver’s bond is
prop. comparative found to be
*No cause of action is inconvenience). insufficient in amount,
not a valid ground for -if extent is too great, or if the
discharge of an it may be modified surety/sureties fail to
attachment. -rule: if the judgment justify, and a bond
of dismissal is silent sufficient & approved
-sheriff should not on the matter, the after justification is
proceed when prelim injunction is not filed forthwith.
defendant makes a not ipso facto
deposit w/ issuing dissolved in case of
court or gives a an appeal.
counter-bond to the
applicant.
-if already enforced,
defendant may move
for its discharge
wholly or in part upon
filing of a cash
deposit or counter-

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bond equal to
attachment bond. If
respect to a particular
prop only, then the
value of that prop.
When writ cannot be -against a non- -labor disputes,
issued resident corporation government
concessions, licenses
& other permits,
cases involving
infrastructures &
projects operated by
the gov’t, mortgage
foreclosures by gov’t
financial institutions &
collection of taxes
-consummated acts,
criminal prosecution,
interference with
coordinate courts &
transfer of possession
Territorial reach -operates only within
the region of the
issuing RTC judge,
except if the sole
issue is the legality of
the decision of
administrative
officials. It is not
confined to the place
where the official is.
Punishment for non- -where garnishee -a person who -court shall, motu
compliance does not deliver the refuses or neglects to proprio or upon
garnished funds to deliver prop to motion, issue an
the attachment receiver, upon order of execution
creditor, the creditor reasonable demand, against him, w/out
may obtain a writ of may be punished for prejudice to his
execution or file contempt & shall be liability for contempt.
separate action liable to the receiver
against him but he for the money or
cannot proceed value of the prop
against garnishee for
contempt.
Termination -may be cancelled -whenever the court
only upon order of the motu proprio or on
court, after proper motion of either party
showing that the shall determine that
notice is the necessity no
-for the purpose of longer exists
molesting the adverse
party; or
-that it is not
necessary to protect
the rights of the party
who caused it to be
recorded.
Return of property -defendant must -adverse party may,
make a cash deposit at any time before
or file a counter-bond delivery of the
in an amount equal to property to the
that fixed by the applicant require the
court, exclusive of return thereof, by
costs, so as to effect filing a bond in double
discharge of the value of the prop
attachment.
Third party claims -third party must -third party must
make an affidavit of make an affidavit of
his title thereto, his title thereto,
stating the grounds stating the grounds
for such title & serve for such title & serve
such upon the sheriff such upon the sheriff
while the latter has while the latter has
possession of prop & possession of prop &
a copy to the a copy to the
attaching party. applicant.
-sheriff shall not be -sheriff shall not be
bound to keep prop bound to keep prop
under attachment under replevin or
unless attaching party deliver it to applicant
files a bond approved unless applicant or
by the court to his agent files a bond
indemnify the 3rd party approved by the court
claimant in a sum not to indemnify the 3rd
less than the value of party claimant in a
the prop. sum not less than the
-any action against value of the prop.
the bond for the -any action against
taking or keeping of the bond for the

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the prop must be filed taking or keeping of


within 120 days from the prop must be filed
the date of the filing within 120 days from
of the bond. the date of the filing
of the bond.

X. DISCOVERY

1. GENERALLY

 Goals: to find out how strong the case is, to anticipate opponent’s actions, to get evidence to support one’s case

REPUBLIC v SANDIGANBAYAN (1991)


Tantoco and Santiago were charged by PCGG. They filed for motion for leave to file interrogatories seeking to know which
commissioners approved their inclusion as defendants. They also sought to know what specific properties does the PCGG claim as
ill-gotten. They also prayed for production and inspection of documents. Sandiganbayan allowed interrogatories and inspection of
documents.
Held: It is the duty of each contending party to lay before the court the facts in issue fully and fairly. However, only ultimate facts are
set forth in the pleadings (R8 S1: Every pleadings shall contain… a plain, concise and direct statement of the ultimate facts…) If
ultimate facts alleged are too general, remedy is Bill of Particulars. But this only seeks to make the ultimate facts more definite. It is
important to know evidentiary matters before trial. It eliminates unessential issues and increases possibility of settlement.
Depositions and interrogatories extend to all facts which are relevant, except those which are privileged. Deposition-discovery
simply advances stage at which disclosure can be compelled to reduce the possibility of surprise. Thus, modes of discovery may be
availed of without leave of court and generally without court intervention. Leave of court needed only if answer not filed yet because
issues not yet joined. Liberty to make discovery is unrestricted if matters inquired into are relevant, not privileged, and inquiry is in
GF and within the bounds of law. PCGG should have objected to specific items of the interrogatories.

2. DEPOSITIONS

 Trial-like examination of a witness (called deponent)


 Deposition officer presides over proceeding but with limited authority to rule on admissibility of evidence
 May or may not be introduced in court bec deposition could have been for purely discovery purposes
 May be taken on oral exam or upon written interrogatories
 Pending action- de bene esse
Before action or pending appeal – in perpetuam rei

Rule 23. Depositions Pending Action


Rules of Court, RULE 23
Sec. 2. Scope of examination.
Unless otherwise ordered by the court as provided by section 16 or 18 of this Rule, the deponent may be examined regarding any
matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other
party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of relevant facts.
Sec. 3. Examination and cross-examination.
Examination and cross-examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132.
Sec. 4. Use of depositions.
At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under
the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had
due notice thereof, in accordance with any one of the following provisions:
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a
witness;
(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of
a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the
witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or
hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or
(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party
offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and
notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and
(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is
relevant to the part introduced, and any party may introduce any other parts.
Sec. 5. Effect of substitution of parties.

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Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and
another action involving the same subject is afterward brought between the same parties or their representatives or successors in
interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.
Sec. 6. Objections to admissibility.
Subject to the provisions of section 29 of this Rule, objection may be made at the trial or hearing to receiving in evidence any
deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and
testifying
Sec. 7. Effect of taking depositions.
A party shall not be deemed to make a person his own witness for any purpose by taking his deposition.
Sec. 8. Effect of using depositions.
The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the
deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse
party of a deposition as described in paragraph (b) of section 4 of this Rule.
Sec. 9. Rebutting deposition.
At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any
other party.
Sec. 10. Persons before whom depositions may be taken within the Philippines.
Within the Philippines, depositions may be taken before any judge, notary public or the person referred to in section 14 hereof.
Sec. 11. Persons before whom depositions may be taken in foreign countries.
In a foreign state or country, depositions may be taken on notice before a secretary of embassy or legation, consul general, consul,
vice-consul, or consular agent of the Republic of the Philippines; before such person or officer as may be appointed by commission
or under letters rogatory; or the person referred to in section 14 hereof.
Sec. 12. Commission or letters rogatory.
A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms
and with such direction as are just and appropriate. Officers may be designated in notices or commissions either by name or
descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country
Sec. 13. Disqualification by interest.
No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or
counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially
interested in the action.
Sec. 14. Stipulations regarding taking of depositions.
If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or
place, in accordance with these Rules, and when so taken may be used like other depositions.
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.
Sec. 16. Orders for the protection of parties and deponents.
After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to
be examined and for good cause shown, the court in which the action is pending may make an order that the deposition shall not
be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on
written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be held with no
one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened
only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall
simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the
court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or
oppression.
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 some one acting
under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless
the parties agree otherwise.
All 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.
Sec. 18. Motion to terminate or limit examination.
At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the
examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or
party, the court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may
order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of
the taking of the deposition, as provided in section 16 of this Rule.
If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is

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pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary
to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may deem reasonable
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 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.
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
Sec. 21. Notice of filing.
The officer taking the deposition shall give prompt notice of its filing to all the parties.
Sec. 22. Furnishing copies.
Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.
Sec. 23. Failure to attend of party giving notice.
If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by
counsel pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the
reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees.
Sec. 24. Failure of party giving notice to serve subpoena.
If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because
of such failure does not attend, and if another party attends in person or by counsel because he expects the deposition of that
witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable
expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees.
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 recross-interrogatories upon the party
proposing to take the deposition.
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.
Sec. 27. Notice of filing and furnishing copies.
When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may
furnish copies to them or to the deponent upon payment of reasonable charges therefor.
Sec. 28. Orders for the protection of parties and deponents.
After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is
pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in sections
15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer
designated in the notice or that it shall not be taken except upon oral examination.
Sec. 29. Effects of errors and irregularities in depositions.
(a) AS TO NOTICE.- All errors and irregularities in the notice for taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.
(b) AS TO DISQUALIFICATION OF OFFICER.- Objection to taking a deposition because of disqualification of the officer before
whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with reasonable diligence.
(c) AS TO COMPETENCY OR RELEVANCY OF EVIDENCE.- Objections to the competency of a witness or the competency,
relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition,
unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(d) AS TO ORAL EXAMINATION AND OTHER PARTICULARS.- Errors and irregularities occurring at the oral examination in the
manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the
parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless
reasonable objection thereto is made at the taking of the deposition.

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(e) AS TO FORM OF WRITTEN INTERROGATORIES.- Objections to the form of written interrogatories submitted under sections
25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for
serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized.
(f) AS TO MANNER OF PREPARATION.- Errors and irregularities in the manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under
sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made
with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

 Examples of privileged matters: work product rule, right to privacy, trade secrets
 Any deposition may be used by any party for contradicting or impeaching the testimony of deponent as witness
 If deposition of a party, use for any purpose
 If witness is dead, or is 100 km away, etc => can be used by any party for any purpose (Prof. ARBautista)

Table 25: Commission v. Letter Rogatory


COMMISSION LETTERS ROGATORY
* Issued to a non-judicial foreign officer who will directly take * Issued to the appropriate judicial officer of the foreign country
the testimony who will direct somebody in said foreign country to take down
testimony
* Applicable rules of procedure are those of the requesting * Applicable rules of procedure are those of foreign court
court requested to act
* Resorted to IF permission of the foreign country is given * Resorted to IF the execution of the commission is refused in
the foreign country
* Leave of court is not necessary * Leave of court is necessary

 Deposition officer cannot rule on admissibility of evidence. In contrast, commissioner can rule on this unless
otherwise provided in order of reference (R32 S3)
 For depositions, there can be more than 1 set
 But for written interrogatories under R25, only 1 set. No re-direct or re-cross interrogatories (Prof ARBautista)

Rule 24. Depositions Before Action or Pending Appeal


Rules of Court, RULE 24
Section 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.
Sec. 2. Contents of petition.
The petition shall be entitled in the name of the petitioner and shall show:
(a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it
to be brought;
(b) the subject matter of the expected action and his interest therein;
(c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;
(d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and
(e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from
each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the
petition for the purpose of perpetuating their testimony.
Sec. 3. Notice and service.
The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of
the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the
petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties
and prospective deponents in the manner provided for service of summons.
Sec. 4. Order and examination.
If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order
designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and
whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in
accordance with Rule 23 before the hearing.

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Sec. 5. Reference to court.


For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the
action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
Sec. 6. Use of deposition.
If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it
may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4
and 5 of Rule 23.
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.

Table 26: Deposition v. Affidavits


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

Table 27: Depositions


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

3. INTERROGATORIES TO PARTIES

Rule 25. Interrogatories to Parties


Rules of Court, RULE 25
Section 1. Interrogatories to parties; service thereof.
Under the same conditions specified in section 1 of Rule 23, any party desiring to elicit material and relevant facts from any
adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served
is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf.
Sec. 2. Answer to interrogatories.
The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon
whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories
within fifteen (15) days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time.
Sec. 3. Objections to interrogatories.
Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of
a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable.
Sec. 4. Number of interrogatories.
No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party.

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Sec. 5. Scope and use of interrogatories.


Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23, and the answers may be used for
the same purposes provided in section 4 of the same Rule.
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.

HICKMAN v TAYLOR (1945)


A tug capsized, killing 5 seamen. One of the administrators filed 39 interrogatories against the owners of the tug. It asked the
owners to attach the statements taken of the crew. There was also a request for the production of memoranda.
Held:
Privilege used in the Rules include confidential statements by client to his lawyer. But this lawyer-client privilege does not
include statements from 3rd parties.
However, the material being asked for is still privileged as work product of the lawyer. Memoranda and impressions gotten
by a lawyer in the course of preparing for litigation cannot be inquired into via the discovery process without showing absolute
necessity to avoid hardship or injuries. Ratio: protect the profession so lawyers do not work with wits borrowed from their brother
lawyers who would otherwise be discouraged from performing their personal best.

COCA-COLA v DIXI-COLA LABORATORIES (1939)


Dixi Cola served 112 interrogatories on Coca-Cola, totaling 255 questions in all. 40 were unanswered.
Held:
Extensive examination of the adverse party by interrogatories is cumbersome and likely to prove inefficient. No need to
resort to interrogatories where extensive examination desired.
Interrogatories inferior to oral examination. They give adverse party more time to study their effect, which gives
opportunity to frame protective answers.
Only when the facts are few, formal and isolated that interrogatories can be satisfactorily employed. If will involve vital and
controversial phases of the case, oral exam or deposition needed. If facts sought are unduly numerous, they become burdensome,
oppressive and vexatious.

BOLDT v SANDERS (1961)


Boldt sued Sanders for injuries she sustained when her car collided with Sanders’ car. Deposition of Boldt taken by Sanders where
she testified that she had no previous accident. Interrogatories also served by Boldt on Sanders asking him to reveal if he had any
information on Boldt’s prior injuries. Sanders declined to answer on ground that info known to plaintiff.
Held:
Examination on matters within knowledge of party seeking discovery is not necessarily improper, even if its is
impeaching evidence.

Table 28: Depositions v. Written Interrogatories


R23 (DEPOSITIONS) R25 (WRITTEN INTERROG)
As to whom addressed To a party or non-party Addressed only to adverse party
Procedure Oral or written or sent to deposition officer Served on adverse party himself
Need for cross interrog Serve within 10 days fr receipt of notice and No cross-interrog
written interrog
Sanctions for refusal to Judgment by default
answer Dismissal of action or proceeding or
part
Strike out all or part of pleading
Payment of expenses of other party
Contempt
Pay expenses of other party
Contempt, after refusal of order to answer
On whom answers are Any party who was present or was Only on the party served
binding represented or who had due notice or had
opportunity to serve cross-interrogatories
Time to answer No fixed time Within 15 days after service, unless
extended or reduced by the court

4. REQUEST FOR ADMISSION

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Rule 26. Admission by adverse party


Rules of Court, RULE 26
Sec. 1. Request for admission.
At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by
the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of
any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless
copies have already been furnished
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.
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
Sec. 3. Effect of admission.
Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an
admission by him for any other purpose nor may the same be used against him in any other proceeding.

interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.
Sec. 4. Withdrawal.
The court may allow the party making an admission under this Rule, whether express or implied, to withdraw or amend it upon
such terms as may be just.
Sec. 5. Effect of failure to file and serve request for admission.
Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a
request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal
knowledge of the latter, shall not be permitted to present evidence on such facts.

DUQUE v CA (2002)
Complaint by Duque vs Bonficaio alleging that Bonifacio’s checks dishonored. Respondents denied that they personally negotiated
with Duque and that they do not owe that much.
Duque filed a Request for Admission requesting that Bonifacio admit negotiation, signing the PN’s and receiving the
demand letters.
RTC said that respondents’ failure to deny was an implied admission.
Held:
Negotiation of checks already denied in answer. Request to deny signing PN’s was defective because no copies of PN’s
attached. Receipt of demand letters already denied when respondents said they made arrangements to pay.
Generally, all notices must be on counsel, not on party. But since law on admission by adverse party expressly provides
that notice must be on party, it should have been served on the party. Hence, requests for admission not validly served and
respondents cannot be deemed to have made admissions.

5. PRODUCTION AND INSPECTION OF DOCUMENTS

Rule 27. Production and Inspection of Documents or Things


Rules of Court, RULE 27
Section 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.
SAXTON v W.S. ASKEW (1941)
Saxton et al filed to recover wages. They moved for production of records and documents like time slips of employees, sales
records of the employer, etc. Employer refused and said that facts well known to employees.

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Held:
Purpose of law: to do away with trial by surprise
Documents and info peculiarly within the knowledge of the defendant who knows the exact number of hours worked and
compensation paid. However, motion is too broad. It would become a fishing expedition, so the court should permit inspection and
making of copies under terms and conditions as are just. Inspection should be restricted to records pertaining solely to plaintiffs.

MACKERER v NEW YORK CENTRAL (1940)


Employee killed while operating crane. Widow seeks production of papers and records showing repairs made after the accident.
Held:
Evidence on repairs after accidents is inadmissible in evidence bec defendant might hesitate to make such repairs.
However, to procure inspection, it is not necessary to prove admissibility of the testimony or document. It suffices that the
inquiry be made to matters generally bearing on or relevant to the issue or there is reasonable probability that doc contains material
evidence. Since widow not present during accident, she is dependent on info from others and is entitled to aid. Repairs after
accident can disclose defects in crane before the accident.

Table 29: Prod’n and Inspection v. Subpoena Duces Tecum

PRODN AND INSPECTION SUBPOENA DUCES TECUM


Nature a) Order to produce or permit Process requiring a person to bring with him any
inspection and copying or books, documents, or other things under his control or
photographing, by or on behalf of possession
the moving party, of any
designated documents, papers,
books, etc
b) Order a party to permit entry upon
designated land or other prop in
his possession or ctrl for
inspecting, measuring, surveying
or photographing prop or any
designated relevant obj or
operation thereon
Good cause? Needs to show good cause No need to show good cause
When it may be asked Before and/or during trial Only during trial
When issued Must be issued upon motion Upon request
Grounds for quashal No good cause shown Specified grounds for quashing
1. unreasonable and oppressive
2. relevancy of books,
documents etc
does not appear
3. person fails to advance
reasonable cost of prodn
To whom directed Directed only to a party May be directed to non-party
Sanctions Sanctions aside from contempt Failure to obey = contempt of court
(See Rule 29)

5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS

Rule 28. Physical and Mental Examination of Persons


Rules of Court, RULE 28
Section 1. When examination may be ordered.
In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its
discretion order him to submit to a physical or mental examination by a physician.
Sec. 2. Order for examination.
The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to
all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by
whom it is to be made.
Sec. 3. Report of findings.
If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written
report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the
examination to be made shall be entitled upon request to receive from the party examined a like report of any examination,
previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the
court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to

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make such a report the court may exclude his testimony if offered at the trial.
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.

VINSON v SUPERIOR COURT (1987)


Vinson filed complaint for sexual harassment and infliction of severe emotional distress. She claims damages for emotional distress
and humiliation caused. Defendant moved for an order for her medical and psychological examination, which she objected to.
Held:
Before examination can be compelled, mental or physical condition must be in controversy. She placed her mental and
emotional distress in controversy by alleging mental and emotional distress. She implicitly claimed that her distress was not caused
by any pre-existing mental condition.
Normally, simple sexual harassment case doesn’t create controversy on mental state of alleged victim, but only when
alleged mental or emotional distress is ongoing.
Mental or physical exam requires showing of good cause, i.e specific facts justifying discovery and that the inquiry be
relevant to the subj matter of the action or reasonably calculated to lead to the discover of admissible evidence.=> Good cause
shown by defendant to justify mental exam
However she did not implicitly waive her right to privacy wrt sexual history as this area is not directly relevant to her claim.
* Meaningful mental exam cannot be made with attorney present because it would cause distraction.

7. SANCTIONS FOR REFUSAL TO MAKE DISCOVERY

Rule 29. Refusal to comply with Modes of Discovery


Rules of Court, RULE 29
Section 1. Refusal to answer.
If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other
matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the
place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party
or a witness refuses to answer any interrogatory submitted under Rules 23 or 25.
If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it
also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the
counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining
the order, including attorney’s fees.
If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent
or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the
reasonable expenses incurred in opposing the application, including attorney’s fees.
Sec. 2. Contempt of court.
If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the
place in which the deposition is being taken, the refusal may be considered a contempt of that court.
Sec. 3. Other consequences.
If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to
answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or
photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring
him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among
others the following:

(a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the
contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from
introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or
mental condition;
(c) An order
1) striking out pleadings or parts thereof, or
2) staying further proceedings until the order is obeyed, or

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3) dismissing the action or proceeding or any part thereof, or


4) rendering a judgment by default against the disobedient party; and
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a physical or mental examination.
Sec. 4. Expenses on refusal to admit.
If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of
fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document
or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable
expenses incurred in making such proof, including attorney’s fees. Unless the court finds that there were good reasons for the
denial or that admissions sought were of no substantial importance, such order shall be issued.
Sec. 5. Failure of party to attend or serve answers.
If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after
being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such
interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or
proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable
expenses incurred by the other, including attorney’s fees.
Sec. 6. Expenses against the Republic of the Philippines.
Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this Rule.

XI. PRE-TRIAL

RULE 18. Pre-Trial


Rules of Court, RULE 18
Section 1. When conducted.
After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set
for pre-trial.
Sec. 2. Nature and purpose.
The pre-trial is mandatory. The court shall consider:
(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner;
(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid
ground therefor be found to exist;
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action.
Sec. 3. Notice of pre-trial.
The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is
charged with the duty of notifying the party represented by him.
Sec. 4. Appearance of parties.
It shall be the duty of the parties and their counsel to appear at the pre-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.
Sec. 5. Effect of failure to appear.
The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the
action. The dismissal shall be with prejudice, unless otherwise ordered by the court.
A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to
render judgment on the basis thereof.
Sec. 6. Pre-trial brief.
The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least
three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others:
(a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the
desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
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commissioners; and
(f) The number and names of the witnesses, and the substance of their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.

 Can schedule pre-trial even if plaintiff has not filed answer to defendant’s compulsory counterclaim since no
answer required from plaintiff

 Pretrial can cover legal and factual issues. According to Sir, pre-trial not mandatory if issue is purely legal.

 Remedies: 1) Plaintiff can appeal from order of dismissal, if it is a final order


2) Defendant can file MR (without affidavit of merits) on ground of Fraud, accident, mistake or excusable negligence.
If denied, file certiorari bec it is an interlocutory order

BURTON v WEYERHAUSER TIMBER (1941)


Burton’s hand was burned by muriatic acid while handling acid carby that had been returned presumably empty. Defendant
demonstrated at the trial that muriatic acid cannot cause such burns. This demo however, was not mentioned at pre-trial.
Held:
Surprise not to be tolerated. If Burton had known, Burton would have called attending physician or would have
demonstrated that acid used at the trial was not of same strength as that which burned him.
Parties are expected to disclose all legal and fact issues which they intend to raise at trial, except issues involving
privileged or impeaching matter. Even then, privileged or impeaching matter should be disclosed to the judge, but of course not to
opposing counsel.
Test if to be disclosed to opponent:: Whether disclosure will best promote the ends of justice
Also, pre trial order submitted after jury sworn in when it should have been presented at a reasonable time before trial.
New trial ordered.

BERGER v BRANNAN (1949)


Suit instituted by Sec of Agric v Berger for overpricing rice. Govt obtained by subpoena duces tecum Berger’s books. In his answer,
Berger alleged that the Govt’s exhibit was incomplete. At pre-trial, allegations of complaint admitted except correctness of Govt’s
compilation. Court ordered defendant to add the missing items to the Govt’s exhibit, but Berger filed them out of time.
Held:
Court has power to compel parties to agree as to all facts over which there can be no real issue.
Purpose of pre-trial: to simplify issues, amend pleadings where necessary and avoid unnecessary proof of facts at the
trial.
Court had power to require Berger to specify what items were omitted. But since Berger failed to do so, court properly
gave summary judgment for the Govt.

XII. TRIAL

1. CALENDAR AND ASSIGNMENT OF CASES

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Rules of Court, RULE 20


Section 1. Calendar of cases.
The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials
were adjourned or postponed, and those with motions to set for hearing. Preference shall be given to habeas corpus
cases, election cases, special civil actions, and those so required by law. (1a, R22)
Section 2. Assignment of cases.
The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in
open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present.
(7a, R22)

Rules of Court, RULE 135


Section 1. Courts always open; justice to be promptly and impartially administered.
Courts of justice shall always be open, except on legal holidays, for the filing of any pleadings, motion or other papers, for the trial
of cases, hearing of motions, and for the issuance of orders or rendition of judgments. Justice shall be impartially administered
without unnecessary delay.

BP 129
Sec. 16. Time and duration of sessions.
The time and duration or daily sessions of the Regional Trial Courts shall be determined by the Supreme Court:
Provided, however, That all motions, except those requiring immediate action, shall be heard in the afternoon of every Friday,
unless it falls on a holiday, in which case, the hearing shall be held on the afternoon of the next succeeding business day:
Provided, further, That the Supreme Court may, for good reasons, fix a different motion day in specified areas.

2. TRIAL

Rules of Court, RULE 30


Section 1. Notice of trial.
Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such manner as shall ensure his
receipt of that notice at least five (5) days before such date.

 A party is entitled as part of procedural due process to reasonable notice of the date of trial. This rule now fixes at least a five-
day notice rule. 105
 If the court discovers that either of the parties to the action has not been notified of the trial, he may, on his own motion, grant a
new trial.106

Rules of Court, RULE 30


Sec. 2. Adjournments and postponements.
A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may
require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment, nor more than three
months in all, except when authorized in writing by the Court Administrator, Supreme Court.

 This section is merely directory; a violation thereof will not nullify a judicial proceeding. 107
 However, a willful disregard or reckless violation thereof may subject the judge to administrative action. 108

Rules of Court, 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 their admissibility, the trial shall not be postponed.
 Requisites:
An affidavit showing –
(1) That the evidence expected to be obtained is material, and
(2) That due diligence has been used to procure it109

105
J. Feria, Civil Procedure Annotated (2001), p. 563
106
Muerteguy & ABoitiz v, Delgado, 22 Phil. 109 (1912) cited in Lavitoria v. Judge of First Instance of Tayabas, 32 Phil. 204, 208 (1915). See also Insular Bank of Asia and
America v. Borromeo, 81 SCRA 167 (1978).
107
Feria, p. 564
108
See Barrueco v. Abeto, 71, Phil. 7 (1940)
109
Feria, p. 565

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 The trial should not be postponed 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.” Rule 30, Sec.3)
 An admission to avoid a continuance must be an admission of the facts to be given in evidence and not merely an admission
“that such evidence would be given.” The distinction is material because the first admits the truth of the proposed testimony,
whereas the second merely admits the tenor thereof.110
 However, under this section, the adverse party may object or reserve the right to object to the admissibility of the facts
admitted.111

Rules of Court, 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.
 Requisites:
An affidavit showing –
(1) that the presence of the party or counsel at the trial is indispensable, and
(2) that the character of his illness is such as to render non-attendance excusable.112
 The illness of a party (or counsel) is not ipso facto a cause for continuance of the cause; but where a party’s (or counsel’s)
presence at the trial is indispensable and the character of his illness is such as to render his presence at the trial impossible, a
continuance should be granted if it appears that he has been guilty of no negligence.113
 The fact of illness must be established by some satisfactory sworn statement, either in the shape of an affidavit or the
certificate of a physician that satisfies the court of the inability of the party to be present. 114
 From the very nature of the relief asked the decision of the question must necessarily rest almost entirely within the discretion
of the trial court, and such discretion will not be interfered with unless the same has been abused to the extent of prejudicing the
applicant’s right to a fair trial of the cause.115
 If the postponement would manifestly prejudice some of the parties, or, if the motion for postponement had been presented
too late to prevent them from notifying their witness not to appear, thus causing them considerable trouble and expense, it is the
duty of the courts to deny it.116
 Note that in one case 117, inasmuch at it did not appear that the motion for postponement was due to any deliberate desire on
the part of the plaintiffs and intervenor to delay the proceedings, or that the action was frivolous, and inasmuch, moreover, as
defendant’s attorney had expressly agreed to plaintiff’s motion, the Supreme Court held that the interest of justice and of the court
could have been served with a dismissal of the case without prejudice.
 Although not expressly provided for, the engagement of party’s attorney in another trial may be ground for granting a
continuance. If without the previous knowledge and consent of an attorney, two cases handled by him are set for trial in different
courts on the same date, he may as for the postponement of one of them.118
 Motion for continuance should be filed in accordance with Section 4, Rule 15 which requires at least three days’ notice except
for good cause. An example of good cause would be if the illness of the party or occurs a day or two before the trial. In such case,
the motion should be filed and notice given the adverse party as soon as practicable.119
 Motion for continuance on the ground of pending amicable settlement should be granted. 120

Rules of Court, RULE 30


Sec. 5. Order of trial.
Subject to the provisions of section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited
to the issues stated in the pre-trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;

110
Feria, p. 565
111
Ibid.
112
Feria, p.566
113
Natividad v. Marquez, 38 Phil. 608
114
Feria, 567
115
Natividad v. Marquez, 38 Phil. 608
116
Linis v. Rovira, 61 Phil. 137, 139 (1935). See also Bautista v. Municipal Council of Mandaluyong, et al., 98 Phil. 409 (1956)
117
Torrefiel v. Toriano, et al., 91 Phil. 209, 211 (1952)
118
Feria, p. 569
119
Feria, p. 570
120
See Phil. National Bank v. De la Cruz, 103 Phil. 341 (1958)

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(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their
defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance
of justice, permits them to adduce evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to
argue or to submit their respective memoranda or any further pleadings.
If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall
determine the relative order of presentation of their evidence.

 Implies that there can be a reverse trial. Apply R119, S11 where accused admits act or omission but interposes a
lawful defense.121
 Pursuant to par. (g), oral argument is no longer a matter of right after the admission of the evidence. The court has
discretion to direct the parties to argue orally or to submit memoranda.
 After the plaintiff has completed the presentation of his evidence, the defendant may file a motion to dismiss on the
ground of insufficiency of evidence or demurrer to evidence. 122
 After parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only. But it has
been held that the court, for good reasons in the furtherance of justice, may permit them to offer evidence upon their original case,
and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. 123
 Additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or
mistake, or where the purpose of the evidence is to correct evidence previously offered. 124

Rules of Court, RULE 30


Sec. 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.

 Note that if all facts are stipulated upon so that only questions of law are submitted for decision, the case may run the risk of no
longer presenting an actual controversy or as bordering on a request for an advisory opinion merely.125
 Findings of facts by commissioners designated by parties for the purpose is tantamount to a stipulation of facts.126
 In cases where no evidence is presented and the case is submitted for decision on an agreement of the parties, the court, if it
finds no objection to the agreement, should render judgment strictly in accordance with said agreement. 127

Rules of Court, RULE 30


Sec. 7. Statement of judge.
During the hearing or trial of a case any statement made by the judge with reference to the case, or to any of the parties,
witnesses or counsel, shall be made of record in the stenographic notes.
Sec. 8. Suspension of actions.
The suspension of actions shall be governed by the provisions of the Civil Code.
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.

 The second part is a new provision. It abandons the ruling in Lim Tanhu v. Ramolete wherein a division of the Court declared
as wrong and without any basis in any rule the practice of trial judges of delegating to their clerks of court the reception of the
plaintiff’s evidence when the defendant is in default. It adopts the previous ruling of another division in Laluan v. Malpaya which
authorized the delegation of the reception of evidence – the taking down of testimony of the witnesses and the marking of the pieces
of documentary evidence, if any, adduced by the party present – in ex parte hearings to the clerk of court.128

121
Prof. Bautista’s lecture
122
See Rule 33
123
Feria, p. 574
124
Lopez v. Liboro, 81 Phil. 429, 434 (1948)
125
A. Bautista, Basic Civil Procedure, p. 143
126
See Siping v. Cacob, 10 Phil. 717 (1908). See also Rule 32, §12
127
Feria, p.575
128
Feria, p. 576. See also Lim Tanhu v. Ramolete, 66 SCRA 425 (1975) and Laluan v. Malpaya, 65 SCRA 494 (1975).

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 The clerk of court must be a member of the bar but, like an officer before whom a deposition is taken under Sec.17, Rule 23,
has no power to rule on objections.

Rules of Court, RULE 31


Section 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.
The suspension of actions shall be governed by the provisions of the Civil Code.

 Consolidation v. permissive joinder of parties


- Consolidation is proper when several actions which involve a common question of law or fact do not arise out of the
same transaction or series of transactions so as to permit permissive joinder of parties under Section 6, Rule 3. 129
 When is consolidation proper?
- While consolidation of several cases involving the same parties and subject matter is a matter addressed to the
discretion of the trial court, joint hearing becomes a matter of duty if two or more cases are tried before the same
judge, or even if filed with the different branches of the same court of first instance, provided one of such cases has
not been partially tried.130

- However, The fact that one case was already partly tried should not justify the refusal of the trial judge to
consolidate the same with the other case if the evidence already submitted to the said judge in the first case
could be submitted as part of the evidence in the second case without further need of re-taking the testimonies of
the witnesses, if both cases involve the same parties, the same subject matter and the same issues.131

 In one instance, the Court ordered the consolidation of two cases even if they were instituted in different courts. Both cases
were consolidated in order to prevent confusion, avoid multiplicity of suits, and to save unnecessary cost and expenses. 132

Rules of Court, 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.

 In view of the liberal provisions of the Rules of Court regarding joinder of causes of action (Sec.5, Rule 2) and permissive
joinder of parties (Sec. 6, Rule 3), a single action may involve several actions, some of which affect only certain parties thereto. In
such case, separate trials may be held for those not affected.133
 Similarly, under the new rules, a counterclaim need not be in favor of all substantial defendants against all the substantial
plaintiffs. A counterclaim may be in favor of one of the defendants against one of the plaintiffs. In such case, a separate trial may be
held for said counterclaim in order that the other parties may not be put to unnecessary trouble and expense in connection with a
proceeding in which they have no interest.134
 Consolidation v. Severance
- Consolidation involves several actions having a common question of law or fact which may be jointly tried; while
severance contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints, or
issues which may be separately tried.135

Rules of Court, RULE135


Sec. 2. Publicity of proceedings and records.
The sitting of every court of justice shall be public, but any court may, in its discretion, exclude the public when the evidence to be
adduced is of such nature as to require their exclusion in the interest of morality or decency. The records of every court of justice
shall be public records and shall be available for the inspection of any interested person, at all proper business hours, under the
supervision of the clerk having custody of such records, unless the court shall, in any special case, have forbidden their publicity, in
the interest of morality or decency.
Sec. 7. Trial and hearings; orders in chambers.
All trial upon the merits shall be conducted in open court and so far as convenient in a regular court room. All other acts or
proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials.

129
Feria, p. 579
130
See Phil. Air Lines, Inc. and Far Eastern Air Transport v. Teodoro, etc. and Capitol Subdivision, Inc., 97 Phil. 461 (1955).
131
See Raymundo v. Felipe, 42 SCRA 615 (1971)
132
See Vallacar Transit Inc. v. Yap, 126 SCRA 500 (1983).
133
Feria, p. 581
134
Ibid.
135
Ibid, p. 582

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Rules of Court, RULE136


Sec. 6. Clerk shall receive papers and prepare minutes.
The clerk of each superior court shall receive and file all pleadings and other papers properly presented, endorsing on each such
paper the time when it was filed, and shall attend all of the sessions of the court and enter its proceedings for each day in a minute
book to be kept by him.
Sec. 17. Stenographer
It shall be the duty of the stenographer who has attended a session of a court either in the morning or in the afternoon, to deliver to
the clerk of court, immediately at the close of such morning or afternoon session, all the notes he has taken, to be attached to the
record of the case; and it shall likewise be the duty of the clerk to demand that the stenographer comply with said duty. The clerk
of court shall stamp the date on which notes are received by him. When such notes are transcribed, the transcript shall be
delivered to the clerk, duly initialed on each page thereof, to be attached to the record of the case.
Whenever requested by a party, any statement made by a judge of first instance, or by a commissioner, with reference to a case
being tried by him, or to any of the parties thereto, or to any witness or attorney, during the hearing of such case, shall be made of
record in the stenographic notes.proceedings may be done or conducted by a judge in chambers, without the attendance of the
clerk or other court officials.

3. TRIAL BY COMMISSIONER

Rules of Court, RULE 32


Section 1. Reference by consent.
By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be
agreed upon by the parties or to be appointed by the court. As used in these Rules, the word "commissioner" includes a
referee, an auditor and an examiner.

 An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be
remedied, either before the parties proceed with the hearing or before the court hands down its ruling. It is a procedural point that
can be waived by consent of the parties, express or implied.136
 However, if the errors in the procedure for the appointment of the commissioner are not prejudicial to the parties because there
is no proof that the commissioner committed any mistake or abuse in the performance of the task entrusted to him, the holding of a
new trial by reason thereof alone is not justified.137
 Special civil actions in which commissioners are appointed:
(1) Eminent domain (Rule 67, §5)
(2) Partition of Real Estate (Rule 69, §3)
 Special proceeding in which a commissioner is appointed: Trial of contested cases (Rule 86, §12)

Rules of Court, 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) 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;
(b) 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;
(c) 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.
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.
 Unlike an officer before whom a deposition is taken, a commissioner “may issue subpoenas and subpoenas duces tecum
… and unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence”. 138

136
Feria, p. 583
137
See CCC Insurance Corporation v. Court of Appeals, 31 SCRA 264 (1970)
138
Feria, p. 587

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Rules of Court, RULE 32


Sec. 4. Oath of commissioner.
Before entering upon his duties the commissioner shall be sworn to a faithful and honest performance thereof.
Sec. 5. Proceedings before commissioner.
Upon receipt of the order of reference and unless otherwise provided therein, the commissioner shall forthwith set a time and
place for the first meeting of the parties or their counsel to be held within ten (l0) days after the date of the order of reference
and shall notify the parties or their counsel.

Sec. 6. Failure of parties to appear before commissioner.


If a party fails to appear at the time and place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn
the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment.
Sec. 7. Refusal of witness.
The refusal of a witness to obey a subpoena issued by the commissioner or to give evidence before him, shall be deemed a
contempt of the court which appointed the commissioner.
Sec. 8. Commissioner shall avoid delays.
It is the duty of the commissioner to proceed with all reasonable diligence. Either party, on notice to the parties and
commissioner, may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his
report.
Sec. 9. Report of commissioner.
Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in
writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set
forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers
and the transcript, if any, of the testimonial evidence presented before him.
Sec. 10. Notice to parties of the filing of report. Upon the filing of the report, the parties shall be notified by the clerk, and
they shall be allowed ten (l0) days within which to signify grounds of objections to the findings of the report, if they so desire.
Objections to the report based upon grounds which were available to the parties during the proceedings before the
commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court
unless they were made before the commissioner.
Sec. 11. Hearing upon report.
Upon the expiration of the period of ten (l0) days referred to in the preceding section, the report shall be set for hearing, after
which the court shall issue an order adopting, modifying, or rejecting the report in whole or in part, or recommitting it with
instructions, or requiring the parties to present further evidence before the commissioner or the court.

 Weight of commissioner’s findings of fact


- When the referee has examined the evidence and reached his conclusions of fact and law, those conclusions have a
presumption in their favor, both of law and of reason… However, his conclusions… should be set aside if upon a
careful review, it appears to be at variance with the substantial preponderance of evidence.139
 If a party fails to file opportunely his objections to the report of the commissioner or referee, such that the record does not
disclose the objections thereto, questions relating to the report cannot be reviewed and he cannot dispute the findings in the
report or escape the legal consequences flowing therefrom.140
 The trial judge retains discretion to accept the report of the referee in part and set it aside in part or reverse it entirely even
where no exceptions to the referee’s report are taken.141

Rules of Court, RULE 32


Sec. 12. Stipulations as to findings.
When the parties stipulate that a commissioner’s findings of fact shall be final, only questions of law shall thereafter be
considered.
Sec. 13. Compensation of commissioner.
The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be taxed
as costs against the defeated party, or apportioned, as justice requires.

4. SUBPOENA

Rules of Court, RULE 21


Section 1. Subpoena and subpoena duces tecum.
Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at
any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him
any books, documents, or other things under his control, in which case it is called a subpoena duces tecum.

 Subpoena to testify – subpoena ad testificandum


139
Kriedt v. E.C. McCullough & Co., 37 Phil. 474, 481 (1918)
140
See De la Rama Steamship Co. v. National Development Co., 35 SCRA 567 (1970)
141
See Baltazar and Limpin v. Limpin and Director of Lands, 49 Phil. 39 (1926)

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 This process may require the witness to attend and to testify and bring books or documents at any of the following
circumstances:
(1) Hearing or trial of an action
(2) Any investigation conducted by competent authority
(3) Taking of a deposition142

Rules of Court, RULE 21


Sec. 2. By whom issued. The subpoena may be issued by:
(a) the court before whom the witness is required to attend;
(b) the court of the place where the deposition is to be taken;
(c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or
(d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application
to determine whether the same is made for a valid purpose.
No prisoner sentenced unless authorized by the Supreme Court.

 Note that only the Supreme Court may authorize a prisoner sentenced to death, reclusion perpetua or life imprisonment
and who is confined in any penal institution to be brought outside the penal institution for appearance or attendance in any
court.

Rules of Court, RULE 21


Sec. 3. Form and contents.
A subpoena shall state the name of the court and the title of the action or investigation, shall be directed to the person whose
attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books,
documents or things demanded which must appear to the court prima facie relevant.

 The subpoena is signed by the Clerk of Court.143


 As stated by the Supreme Court in Liebenow v. Philippine Vegetable Oil, 39 Phil. 60
- The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum, with the exception that it
concludes with an injuction that the witness shall bring with him and produce at the examination the books, documents or
things described in the subpoena.
- The subpoena duces tecum is issued in the manner as the ordinary subpoena, and is procurable from the clerk as of
course without application to the court.
- While the person to whom the subpoena to testify is directed is bound absolutely and without qualification to appear in
response to the subpoena, the person to whom the subpoena duces tecum is directed is bound only insofar as he is
required by law to produce the documents in evidence.
 Where a subpoena duces tecum is improperly issued tp enforce the production of documents which the witness is not
bound to produce, a proper remedy is by motion to vacate or set aside the subpoena.

Rules of Court, RULE 21


Sec. 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon motion promptly made and, in any
event, at or before the time specified therein
1) if it is unreasonable and oppressive, or
2) the relevancy of the books, documents or things
does not appear, or
3) if the person in whose behalf the subpoena is
issued fails to advance the reasonable cost of
the production thereof.

The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, the
subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered
when the subpoena was served.

 Note: It is expressly required that the relevance of the things to be produced must appear and that the person asking for
the subpoena shall advance the reasonable cost of the production thereof.

142
Feria, p. 491
143
See Rule 136, §4

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Rules of Court, RULE 21


Sec. 5. Subpoena for depositions.
Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule 23, shall constitute sufficient
authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which
the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order
of the court.

 A party to an action need not be served with a subpoena for the purpose of taking his deposition. It is sufficient to serve
him notice of the taking of his deposition. 144 However, if no subpoena is served on him, the party cannot be punished for
contempt under Section 9 of Rule 29.

Table 30: Subpoena v. Summons


SUBPOENA SUMMONS
* An order to appear and testify or to produce books and * Order to answer complaint
documents
* May be served to a non-party * Served on the defendant
* Needs tender of kilometrage, attendance fee and reasonable * Does not need tender of kilometrage and other fees
cost of production fee

Rules of Court, RULE 21


Sec. 6. Service.
Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be
exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day’s attendance and
the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a
reasonable time for preparation and travel to the place of attendance.
If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be
tendered.
Sec. 7. Personal appearance in court.
A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued
by such court or officer.
Sec. 8. Compelling attendance.
In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the
failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before
the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by
the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse.
Sec. 9. Contempt.
Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court
from which the subpoena is issued.
If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or
Rule.
Sec. 10. Exceptions.
The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than one hundred (100) kilometers
from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of
the court in which his case is pending was obtained.

Rules of Court, RULE 135


Sec. 5 (e). Inherent powers of courts.
Every court shall have power:
x x x
(e) To compel the attendance of persons to testify in a case pending therein

Rules of Court, RULE 141


Sec. 13. Witness fees. –
(c) Witnesses in the Supreme Court, in the Court of Appeals and in the Regional Trial Courts, either in actions or special
proceedings, shall be entitled to one hundred (P100.00)pesos per day-inclusive of travel time;
(d) Witnesses before courts of the first level shall be allowed fifty (P50.00) pesos per day;
Fees to which witnesses may be entitled in a civil action shall be allowed, on the certification of the clerk of court or judge of his
appearance in the case. A witness shall not be allowed compensation for his attendance in more than one case or more than one
side of the same case at the same time, but may elect in which of several cases or on which side of a case, when he is

144
See Rule 29, §5

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summoned by both sides, to claim his attendance. A person who is compelled to attend court on other business shall not be paid
as witness.

BP 129
Sec. 38. Judgments and processes. –
(1) All judgments determining the merits of cases shall be in writing, stating clearly the facts and the law on which they were
based, signed by the Judge and filed with the Clerk of Court. Such judgment shall be appealable to the Regional Trial Courts in
accordance with the procedure now prescribed by law for appeals to the Court of First Instance, by the provisions of this Act,
and by such rules as the Supreme Court may hereafter prescribe.
(2) All processes issued by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, in cases falling
within their jurisdiction, may be served anywhere in the Philippines without the necessity of certification by the Judge of the
Regional Trial Court.

 Thus, a subpoena may be served anywhere in the Philippines

5. DEMURRER TO EVIDENCE
 Options of defendant after plaintiff has presented his case:
1) Present his evidence
2) Waive presentation of evidence and submit case based on plaintiff’s evidence alone
3) File demurrer to evidence145

Rules of Court, RULE 33


Section 1. Demurrer to evidence.
After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that
upon the facts and the law the plaintiff has shown no right to relief.
If his motion is denied, he shall have the right to present evidence.
If the motion is granted, but on appeal the order of dismissal is reversed, he shall be deemed to have waived the right to
present evidence.

 Compare this rule with the rule on demurrer to evidence in criminal cases under Section 23 of Rule 119.
 If the motion for dismissal on the ground of insufficiency of evidence is denied by the trial court, the defendant should be
allowed to present his evidence.
 Where the case is dismissed on demurrer to evidence and the trial court is reversed on appeal, the defendant loses the right
to present evidence on his behalf.
 The order granting the demurrer to evidence should contain the facts and the law on which it is based.146
 An order denying a motion for judgment on demurrer to evidence is interlocutory and is not appealable. Neither can it be the
subject of a petition for certiorari. From such denial, appeal in due time is the proper remedy, not certiorari, unless there is grave
abuse of discretion or excess of jurisdiction or an oppressive exercise of judicial authority. 147
 For an exceptional when certiorari lies to review an order denying a demurrer to evidence, see Commission on Elections v.
Court of Appeals, 229 SCRA 501 (1994)

Table 31: Demurrer to Evidence v. Motion to Dismiss


DEMURRER TO EVIDENCE MOTION TO DISMISS
* It is presented after the plaintiff has rested his case * Presented before a responsive pleading (answer) is made by
the defendant
* The ground is based on insufficiency of evidence * It may be based on any of those enumerated in Rule 16

Table 32: TWO KINDS OF DEMURRER TO EVIDENCE


CIVIL CASES CRIMINAL CASES
1. Defendant need not ask for leave of court 1. Leave of court is necessary so that the accused could present
his evidence if the demurrer is denied.
2. if the court finds the plaintiffs evidence insufficient, it will grant 2. if the court finds the prosecutions evidence insufficient, it will
the demurrer by dismissing the complaint. The judgment of grant the demurrer by rendering judgment acquitting the
dismissal is appealable by the plaintiff. If the plaintiff appeals and accused. Judgment of acquittal is not appeallable; double

145
Prof. Bautista’s reviewer, p.94
146
Nicos Industrial Corporation v. Court of Appeals, 206 SCRA 127, 133 (1992)
147
Feria, p. 597

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judgment is reversed by the appellate court, it will decide the jeopardy sets in.
case on the basis of the plaintiff’s evidence with the consequence
that the defendant already loses his right to present evidence. No
res judicata in dismissal due to demurrer.
3. If court denies demurrer, defendant will present his evidence. 3. If court denies the demurrer
(a) If demurrer was with leave of court, accused may present his
evidence;
(b) If demurrer was without leave of court, accused can no
longer present his evidence and submits the case for decision
based on the prosecution’s evidence.

XIII. JUDGMENTS

1. JUDGMENTS ON THE MERITS

Rules of Court, RULE 36


Section 1. Rendition of judgments and final orders.
A judgment or final order determining the merits of the case shall be in writing, personally and directly prepared by the judge,
stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court.

 3 parts of judgment:
 Body or opinion
 Decretal or dispositive portion- prevails if conflicts with body
 Signature of judge
 In case of conflict between the opinion and the dispositive portion, the dispositive portion shall prevail.
 The only portion of the decision which will become the subject of execution is what is ordained and decreed in such dispositive
part. The reasons or conclusions of the court may only serve as guide or enlightenment to determine the ratio decidendi.148
 Note that it is the filing of the decision, judgment or final order with the clerk of court, not the signing thereof, that constitutes
rendition or promulgation

Rules of Court, 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.

 The date of finality of the judgment or final order shall be deemed to be the date of its entry. Therefore, any delay in
physically effecting the entry, say, because service of judgment may have been made by registered mail and receipt of return card is
delayed, shall not affect the date of finality of the judgment.149
 The date of entry is the starting point of:
1) the six-month period for filing a petition of relief (Rule 38, Section 3),
2) the five-year period for filing a motion for execution
3) and the ten-year period of prescription of judgments (Rule 39, Section 6) 150
 Some judgments are immediately final and executory
 judgment by compromise
 judgment for accounting
 judgment for partition
 judgment for support
 judgment in UD

Rules of Court, RULE 36


Sec. 3. Judgment for or against one or more of several parties.
Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.
When justice so demands, the court may require the parties on each side to file adversary pleadings as between themselves
and determine their ultimate rights and obligations.
Sec. 4. Several judgments.
In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or

148
J. Feria, Civil Procedure Annotated, Vol. I (2001), p. 618.
149
A. Bautista, Basic Civil Procedure (2003), p.152. According to Prof. Bautista, this provision could be misunderstood to mean that the date of entry is the date of finality.
150
J. Feria, Civil Procedure Annotated, Vol. I (2001), p. 618

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more of them, leaving the action to proceed against the others.

 If the defendants have separate or severable interest, a final order or judgment may be entered as to them leaving the
action to proceed against the others. But if the defendants have common interest, an order or judgment of dismissal as to some
of them is not final and, therefore, not appealable, for it is a well-known rule that the whole controversy or all the issues involved
in a case and as to all defendants must be disposed of or settled before any final judgment may be entered. 151
 Example:
Debtors solidarily liable have common interest, while debtors jointly liable have separate or severable interest.
In an action against 2 or more solidary debtors, no final order or judgment (appealable) may properly be rendered as to
some of the joint debtors and leaving the case to proceed against the others, for the reason that the action should have to be
finally decided as to all defendants since a final order or judgment in favor or against one of the solidary debtors will necessarily
affect the others. But in an action against 2 or more defendants jointly liable, a final order or judgment may be properly rendered
as to some defendants, leaving the case to proceed against the others, because they have a severable interest. 152

Rules of Court, RULE 36


Sec. 5. Separate judgments.
When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues
material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of
the claim, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the
claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered, the
court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such
conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered.
 No appeal may be taken from a separate judgment unless the court allows it. (Rule 41, §1 (g)).

Rules of Court, 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.
Rules of Court, RULE 135
Sec. 9. Signing judgments out of province.
Whenever a judge appointed or assigned in any province or branch of a Regional Trial Court in a province shall leave the province
by transfer or assignment to another court of equal jurisdiction, or by expiration of his temporary assignment, without having
decided a case totally heard by him and which was argued or an opportunity given for argument to the parties or their counsel, it
shall be lawful for him to prepare and sign his decision in said case anywhere within the Philippines. He shall send the same by
registered mail to the clerk of the court where the case was heard or argued to be filed therein as of the date when the same was
received by the clerk, in the same manner as if he had been present in court to direct the filing of the judgment. If a case has been
heard only in part, the Supreme Court, upon petition of any of the parties to the case and the recommendation of respective district
judge, may also authorize the judge who has partly heard the case, if no other judge had heard the case in part, to continue
hearing and to decide said case notwithstanding his transfer or appointment to another court of equal jurisdiction.
Rules of Court, RULE 136
Sec. 9. Judgment and entries book. –
The clerk shall keep a judgment book containing a copy of each judgment rendered by the court in order of its date, and a book of
entries of judgments containing at length in chronological order entries of all final judgments or orders of the court.

WHAT A DECISION MUST CONTAIN:

Art. VIII, Sec, 14 (1987 Constitution)


No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is
based.
No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating
the legal basis therefor.
Sec. 38 (1), BP 129
Judgments and processes.
All judgments determining the merits of cases shall be in writing, stating clearly the facts and the law on which they were based,
signed by the Judge and filed with the Clerk of Court. Such judgment shall be appealable to the Regional Trial Courts in
accordance with the procedure now prescribed by law for appeals to the Court of First Instance, by the provisions of this Act, and
by such rules as the Supreme Court may hereafter prescribe.
Sec. 40, BP 129
Form of decision in appealed cases.
Every decision or final resolution of a court in appealed cases shall clearly and distinctly state the findings of fact and the
151
Ibid, p. 619
152
Ibid, p. 620

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conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted by reference
from those set forth in the decision, order, or resolution appealed from.
entries of judgments containing at length in chronological order entries of all final judgments or orders of the court.

 Art. VII, Sec. 14 of the 1987 Constitution requires every court to express in its decision, clearly and distinctly, the facts and the
law on which it is based. Such requirement applies only to decisions, as distinguished from orders or resolutions. 153
 A judgment which contains the dispositive portion only and reserves the making of findings in a subsequent judgment is a sin
perjuicio judgment and is not allowed. It shall have no effect. 154
 However, RTC judgment on appeal from MTC case may state findings of fact and conclusions of law, or adopt by reference
from those in decision, order or resolution appealed from (BP 129, S40)

2. JUDGMENTS BY COMPROMISE AND UPON CONFESSION

Judgment by compromise
 A judgment by compromise is immediately final and executory because there is necessarily implied by the
compromise a waiver by the parties of their right to appeal. 155 However, if the compromise is attended by fraud, mistake or duress, a
motion to set aside the compromise may be made, and in the event of denial, an appeal may be taken therefrom. 156 Under Section
1, Rule 41, however, certiorari may be taken from the order denying the said motion.
 Two alternative remedies against the compromise approved by the court:
1) Petition for relief under Rule 38
2) A new action to annul the compromise agreement under Rule 47 within the period established by law 157
 A compromise agreement between the parties to a case on which the decision of the court was based has upon the
parties the effect and authority of res judicata, and the judgment rendered thereon has the authority of res judicata from the moment
it was rendered.158
 Even if the compromise between the parties had not been submitted to the court, it still would have the same
authority as res judicata.159 However, such an extrajudicial compromise may not be enforced by execution. 160

Judgment by Confession
 Judgment upon confession is one which is rendered against a party upon his petition ro consent. It usually happens
when the defendant appears in court and confesses the right of the plaintiff to judgment or files a pleading expressly agreeing to the
plaintiff’s demand.161
 A cognovit judgment is one rendered upon confession pursuant to a cognovit clause in a promissory note or a
contract authorizing the holder or other party upon default to confess judgment as the maker’s or party’s attorney-in-fact upon the
note or contract. Such kind of a judgment is considered void in our jurisdiction for denying a party his right to a day in court and his
right to file counterclaims. 162

OVERMYER v FRICK (1972)


Overmyer contracted with Frick to install a ref system. Overmyer failed to pay stipulated payments. It succeeded in getting Frick
to continue the work upon payment of installments. 2 nd agreement: contained confession of judgment clause. Overmyer
authorized any attorney of Frick to appear in court and confess judgment against Overmyer in case of default. Without prior
notice to Overmyer, Frick got judgment v it.
Held:
Cognovit is an ancient legal device to holder’s obtaining judgment without notice or hearing, and even with
appearance on debtor’s behalf of an attorney designated by the holder.
DP rights to notice and hearing prior to civil judgment are subj to waiver. Cognovit clause constitutional and serves
useful purpose in commercial world.
In this case, it was not a © of adhesion bec there was equal bargaining power, and Overmyer received valuable
consideration in exchange for the clause.

153
See Novino v. Court of Appeals, 8 SCRA 279 (1963); Mendoza v. Court of First Instance of Quezon, 51 SCRA 369 (1973); Amargo v. Court of Appeals, 53 SCRA 64 (1973)
154
A. Bautista, Basic Civil Procedure (2003), p. 151
155
Ibid, p. 153.
156
See Piano v. Cayanong, 7 SCRA 397 (1963)
157
See Saminiada v. Mata et al., 92 Phil. 426 (1953)
158
See Piano v. Cayanong, 7 SCRA 397 (1963)
159
See Meneses v. De la Rosa, 77 Phil. 34 (1946)
160
Civil Code of the Philippines, Republic Act No. 386, Art. 2037 (1950)
161
See Manufacturer’s Bank and Trust Co. v. Woodworks, Inc., 36 SCRA 562 (1970)
162
See Philippine National Bank v. Manila Oil Refining & By-Products Co., Inc., G.R. No 18103, June 8, 1922.

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 As per PNB v Manila Oil Refining and By-Products, cognovit clause is void in the Phils bec it denies day in court
and right to file counterclaims

3. NUNC PRO TUNC JUDGMENTS

 a judgment entered “now for then”


 There are two classes of cases in which it was originally held proper to enter a judgment nunc pro tunc:
1) those cases in which the suitors have done all in their power to place the cause in a condition to be decided in a court but
in which owing to the delay of the court, no final judgment has been entered.
2) Those cases in which judgment though pronounced by the court, have, from accident or mistake of the officers of the
court, never been entered on the records of the court163

In our jurisdiction, only the second class would be appropriate for the rendition of a nunc pro tunc judgment.
 To justify a nunc pro tunc entry of an order, the record must present some visible data of the order.164

COX v HAGAN (1919)


1917: Judgment v Cox.
1918: Hagan moved for nunc pro tunc order to give judgment against Cox. Lower court granted order “which should have been
entered in 1917.”
Held:
2 classes of orders where it is proper to enter judgments and orders nunc pro tunc:
1) suitor did all in his power to place the cause in a condition to be decided by the court, but owing to delay of the
court, no final judgment has been entered
2) Judgment, though pronounced by court, has, from accident or mistake of the officers of the court, never been
entered on the records

Court entered “now for then” such order or decree as it finds from such record the party moving for the nunc pro tunc
order was then entitled to.
Normally, if delay to render judgment was imputable to negligence or misapprehension of parties, cannot enter such
judgments. Nunc pro tunc allowed only in cases where one of the parties died, or when statute repealed without a saving
clause.
However, courts now can only enter judgments in 2 nd class. Office of nunc pro tunc judgment is to record some act of
the court at a former time which was not then carried into the record, and the power of the court to make such entries is
restricted to placing upon the record evidence of judicial action which has actually been taken. Court cannot render judgment
that it might or should have rendered.
Exercise of power to render judgment presupposes actual rendition of judgment and a mere right to a judgment will
not furnish the basis for such entry.
New trial granted.

LICHAUCO v TAN PHO (1923)


Tan Pho asked for nunc pro tunc order as of Dec 1913 approving a © of lease. Petition impliedly granted in decision in another
case finding © valid.
Records show that guardian asked Court to allow him to employ attorney and to approve © of lease. CFI Judge gave affidavit
that he approved the lease. However, according to deputy clerk at that time, there was no entry of any approval.
Held:
Office of judgment nunc pro tunc is to record some act of the court done at a former time which was not then carried
into the record, and the power of the court to make such entries is restricted to placing upon the record evidence of judicial
action which has actually been taken. It may be used to make the record speak the truth, but not to make it speak what it did not
speak but ought to have spoken.
If court did not render judgment that it might or should have rendered, or if it has rendered an imperfect or improper
judgment, it cannot remedy these errors or omissions by entering a nunc pro tunc judgment. In entering such judgment, court
has no power to construe what the judgment means, but only to enter of record such judgment as had been formerly rendered.
Exercise of this power presupposes actual rendition of a judgment, and mere right to judgment will not furnish basis for such an
entry.
Except as to the rights of 3rd parties, judgment nunc pro tunc is retrospective, and has same force and effect as if it
had been entered at the time judgment was originally rendered. Record entries nunc pro tunc can properly be made only when
based on some writing in a cause which directly or by fair inference indicates the purpose of the entry, or on the personal
knowledge and recollection of the court.
Nunc pro tunc invalid because entered without sufficient legal basis.

163
Cox v. Hagan, 125 Va. 656, 100 S.E. 666 (1919)
164
Lichauco v. Tan Pho, 51 Phil. 862 (1923)

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4. JUDGMENTS FOR COSTS

Rules of Court, RULE 142


Section 1. Costs ordinarily follow results of suit. – Unless otherwise provided in these rules, costs shall be allowed to the
prevailing party as a matter of course, but the court shall have power, for special reasons, to adjudge that either party shall pay the
costs of an action, or that the same be divided, as may be equitable.
No costs shall be allowed against the Republic of the Philippines, unless otherwise provided by law.

 If no promulgation as to costs, each to bear his own costs165

Rules of Court, RULE 142


Sec. 2. When action or appeal dismissed. –
If an action or appeal is dismissed for want of jurisdiction or otherwise, the court nevertheless shall have the power to render
judgment for costs, as justice may require.
Sec. 3. Costs when appeal frivolous. – Where an action or an appeal is found to be frivolous, double, or treble costs may be
imposed on the plaintiff or appellant, which shall be paid by his attorney, if so ordered by the court.
Sec. 4. False allegations. –
An averment in a pleading made without reasonable cause and found untrue shall subject the offending party to the payment of
such reasonable expenses as may have been necessarily incurred by the other party by reason of such untrue pleading. The
amount of expenses so payable shall be fixed by the judge in the trial, and taxed as costs.
Sec. 5. No costs of irrelevant matters. –When the record contains any unnecessary, irrelevant, or immaterial matter, the party at
whose instance the same was inserted or at whose instance the same was printed, shall not be allowed as costs any disbursement
of preparing, certifying, or printing such matter.
Sec. 6. Attorney's fees as cost. –
No attorney's fees shall be taxed as costs against the adverse party, except as provided by the rules of civil law. But this section
shall have no relation to the fees to be charged by an attorney as against his client.
Sec. 7. Restriction of costs. –
If the plaintiff in any action shall recover a sum not exceeding ten pesos as debt or damages, he shall recover no more costs than
debt or damages, unless the court shall certify that the action involved a substantial and important right to the plaintiff in which
case full costs may be allowed.
Sec. 8. Costs, how taxed. –
In inferior courts, the costs shall be taxed by the municipal or city judge and included in the judgment.
In superior courts, costs shall be taxed by the clerk of the corresponding court on five day's written notice given by the prevailing
party to the adverse party. With this notice shall be served a statement of the items of costs claimed by the prevailing party, verified
by his oath or that of his attorney. Objections to the taxation shall be made in writing, specifying the items objected to. Either party
may appeal to the court from the clerk's taxation. The costs shall be inserted in the judgment if taxed before its entry, and payment
thereof shall be enforced by execution.
Sec. 9. Costs in municipal or city courts. –
In an action or proceeding pending before a municipal or city judge, the prevailing party may recover the following costs, and no
other:
a) For the complaint or answer, two pesos;
b) For the attendance of himself, or his counsel, or both, on the day of trial, five pesos;
c) For each additional day's attendance required in the actual trial of the case, one peso;
d) For each witness produced by him, for each day's necessary attendance at the trial, one peso, and his lawful traveling
fees;
e) For each deposition lawfully taken by him and produced in evidence, five pesos;
f) For original documents, deeds, or papers of any kind produced by him, nothing;
g) For official copies of such documents, deeds or papers, the lawful fees necessarily paid for obtaining such copies;
h) The lawful fees paid by him for service of the summons and other process in the action;
i) The lawful fees charged against him by the judge of the court in entering and docketing and trying the action or
proceeding.
Sec. 10. Costs in Courts of First Instance. –
In an action or proceeding pending in a Court of First Instance, the prevailing party may recover the following costs, and no other:
a) For the complaint or answer, fifteen pesos;
b) For his own attendance, and that of his attorney, down to and including final judgment, twenty pesos;
c) For each witness necessarily produced by him, for each day's necessary attendance of such witness at the trial, two
pesos, and his lawful traveling fees;
d) For each deposition lawfully taken by him, and produced in evidence, five pesos;
e) For original documents, deeds, or papers of any kind produced by him, nothing;

165
Prof. Bautista’s Reviewer, p. 96

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f) For official copies of such documents, deeds, or papers, the lawful fees necessarily paid for obtaining such copies;
g) The lawful fees paid by him in entering and docketing the action or recording the proceedings, for the service of any
process in action, and all lawful clerk's fees paid by him.
Sec. 11. Costs in Court of Appeals and in Supreme Court. –
In an action or proceeding pending in the Court of Appeals or in the Supreme Court, the prevailing party may recover the following
costs, and no other:
a) For his own attendance, and that of his attorney, down to and including final judgment, thirty pesos in the Court of
Appeals and fifty pesos in the Supreme Court;
b) For official copies of record on appeal and the printing thereof, and all other copies required by the rules of court, the
sum actually paid for the same;
c) All lawful fees charged against him by the clerk of the Court of Appeals or of the Supreme Court, in entering and
docketing the action and recording the proceedings and judgment therein and for the issuing of all process;
d) No allowance shall be made to the prevailing party in the Supreme Court or Court of Appeals for the brief or written or
printed arguments of his attorney, or copies thereof, aside from the thirty or fifty pesos above stated;
e) If testimony is received in the Supreme Court or Court of Appeals not taken in another court and transmitted thereto, the
prevailing party shall be allowed the same costs for witness fees, depositions, and process and service thereof as he would
have been allowed for such items had the testimony been introduced in a Court of First Instance;
f) The lawful fees of a commissioner in an action may also be taxed against the defeated party, or apportioned as justice
requires.
Sec. 12. Costs when witness fails to appear. –
If a witness fails to appear at the time and place specified in the subpoena issued by any inferior court, the costs of the warrant of
arrest and of the arrest of the witness shall be paid by the witness if the court shall determine that his failure to answer the
subpoena was willful or without just excuse.
Sec. 13. Costs when person cited for examination in probate proceedings. –
When a person is cited, on motion of another, to appear before the court to be examined in probate proceedings, the court may, in
its discretion, tax costs for the person so cited and issue execution therefor, allowing the same fees as for witnesses in Courts of
First Instance.

5. DECLARATORY JUDGMENTS

Rules of Court, RULE 63


Section 1. Who may file petition.
Any person interested under a deed, will, contract or other written instrument, 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.
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.

 The special civil action of declaratory relief falls under the exclusive original jurisdiction of the Regional Trial Courts. 166
 A declaratory judgment stands by itself; no executory process follows as of course. Such a judgment does not involve
executory or coercive relief.167
 While a declaratory judgment should normally not decree the doing of any act, it was held in one case that the court in such an
action may order the refund of payments made under an ordinance which was declared to be null and void. Else, a separate suit
would still be required for the recovery of these payments, and this would result in multiplicity of suits. 168
 A declaratory judgment is different from an advisory opinion because it is actually determinative of the rights of the party to a
case and it is based on an actual controversy.169 Also, it is res judicata and binding upon the parties and those in privity with them. 170

Table 33: Declaratory Judgment v. Advisory Opinion


DECLARATORY JUDGMENT ADVISORY OPINION
Proceeding determinative of the rights of the parties to the case Rendered at request of exec or legislative dept
Quieting effect, but no coercive effect To guide action only
Coercive relief may be in separate judgment
Requires ripening seed of controversy Situation can be vague and hypothetical

166
See the Judiciary Reorganization Act of 1980, Batas Pambansa Blg. 129, §19(1) (1980).
167
Feria, Civil Procedure Annotated, Vol. II (2001), p. 434
168
Matalin Coconut Co., Inc. v. Municipal Council of Malabang, Lanao del Sur, G.R. No. 28138, August 13, 1986, 143 SCRA 404 (1986)
169
A. Bautista, Basic Civil Procedure (2003), p. 155.
170
16 Am. Jur. Declaratory Judgments, §3.

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Discretionary

 A declaratory judgment is different from decisions of abstract or moot questions since they must involve a real controversy. 171
 The power to grant declaratory relief does not imply the power to decide a moot case because the power can only be exercised
in a case which, although not presenting an actual controversy, does already present the ripening seeds of a controversy. 172
 Requisites for declaratory relief:
1) there must be a justiciable controversy;
2) the controversy must be between persons whose interests are adverse;
3) the party seeking declaratory relief must have a legal interest in the controversy; and
4) the issue involved must be ripe for judicial determination173
 The subject matter must refer to a deed, will, contract, or other written instrument, or to a statute or ordinance.
 An action for declaratory relief will not lie in the following cases174:
1) where the action is to obtain judicial declaration of citizenship175
2) where the action is to establish illegitimate filiation and hereditary rights 176
3) where a court decision is the subject of action177
4) where the action is to resolve a political question or issue178
5) where the action is to try or determine issues179
6) where the terms of the assailed ordinance are not ambiguous or of doubtful meaning180
7) where the contract or statute on which the action is based has been breached181
8) where the action is merely to seek an advisory opinion from the court on a moot question 182

Rules of Court, RULE 63


Sec. 2. Parties.
All persons who have or claim any interest which would be affected by the declaration shall be made parties; and no declaration
shall, except as otherwise provided in these Rules, prejudice the rights of persons not parties to the action.

 Non-joinder of necessary parties is not a jurisdictional defect but may be ground for dismissal under Section 5 of this Rule. 183

Rules of Court, RULE 63


Sec. 3. Notice on Solicitor General.
In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the
Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such question.
Sec. 4. Local government ordinances.
In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local
governmental unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional,
the Solicitor General shall also be notified and entitled to be heard.
Sec. 5. Court action discretionary.
Except in actions falling under the second paragraph of section 1 of this Rule, 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

 Generally, declaratory judgment is discretionary.

171
Ibid.
172
New York Foreign Trade Zone Operators, Inc. v. State Liquor Authority, 285 N.Y. 272, 34 N.E. 2d 316 (1941).
173
Tolentino v. Board of Accountancy, 90 Phil. 83, 88 (1951); See also Caltex (Philippines), Inc. v. Palomar, 18 SCRA 247 (1966)l Mirando v. Wellington Ty & Bros., Inc. 81
SCRA 506 (1978).
174
For discussion on this, see Feri, Civil Procedure Annotated, Vol. II (2001), pp. 437-441.
175
See Obiles v. Republic of the Philippines, 92 Phil. 864 (1953). See also Azajar v. Ardales and Bureau of Lands, 97 Phil.851 (1955); SIngson v. Republic, 22 SCRA 353
(1968); Lim. V. Republic, 37 SCRA 783 (1971).
176
See Edades v. Edades, et al., 99 Phil. 675 (1956)
177
See Tanda v. Aldaya, 98 Phil. 244 (1956). See also Bascos v. Court of Appeals, 98 Phil. 994 (1956).
178
See De la Llana v. Commission on Elections, 80 SCRA 525 (1977)
179
See Kawasaki Port Service Corporation v. AMores, 199 SCRA 230 (1991); See also Dy Poco, v. Commissioner of Immigration, et al., 16 SCRA 615 (1966)
180
See Santos v. Aquino, et al.94 Phil. 65 (1953)
181
See De Borja v. Villadolid, 85 Phil. 36 (1949); Samson v. Andal, 89 Phil. 627 (1951); Velasco v. Villegas 120 SCRA 568 (1983)
182
See GSIS Employees Association v. Alvendia, 108 Phil. 505 (1980).
183
Baguio Citizens Action, Inc. v. Municipal Council of Malabang, Lanao del Sur, G.R. No. 28138, August 13, 1986, 143 SCRA 404 (1986)

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EXCEPTIONS:
 action to reform instrument,
 to quiet title or to remove clouds, or
 to consolidate ownership on pacto de retro sales under 1607, CC

Rules of Court, RULE 63


Sec. 6. Conversion into ordinary action.
If before the final termination of the case, a breach or violation of an instrument or a statute, executive order or regulation,
ordinance, or any other governmental regulation should take place, the action may thereupon be converted into an ordinary action,
and the parties shall be allowed to file such pleadings as may be necessary or proper.

REPORT, COMMITTEE ON THE JUDICIARY OF US SENATE184


Declaratory judgment is same as other judgments, except that it is not followed by decree for damages, injunction, specific
performance, or other immediately coercive decree. It declares conclusively and finally the rights of parties in litigations over a
contested issue. It enables parties in dispute over their rights over a contract, deed, lease, will, or any other written instrument to sue
for a declaration of rights without breach of the contract.
Employed mainly for determination of status in marital or domestic relations, determination of contested rights of prop, real or
personal, and for declaration of rights under a statute or municipal ordinance.
=> Avoids necessity of acting at one’s peril, or to act on one’s own interpretation of his rights or abandon one’s right for fear of
incurring damages
Proceeding must be adversary, all interested parties must be cited, the issue must be real, the problem is practical and not
academic, and the decision must finally settle and determine the controversy. Better to adjudicate dispute before status quo has
been destroyed.

AMERICAN MACHINE AND METALS v DE BOTHEZAT (1948)


De Bothezat conveyed certain patents to American Machine. As long as © in force, American to pay a percentage of its net sales
even if patents already expired or product not covered by patent.
American soon asked that the © be terminated and asked for declaration of rights to avoid accrual of damages. However, it did not
yet give notice of termination.
Held:
Had notice been given, there would be an actual controversy. Where there is actual controversy over contingent rights, a
declaratory judgment may be granted. Purpose is to prevent accrual of avoidable damages.

INTL LONGSHOREMEN’S AND WAREHOUSEMEN’S UNION v BOYD (1954)


Union has 3000 members who work in Alaska, with some of them aliens. Act was passed treating aliens domiciled in US returning
from temporary work in Alaska as if they were entering the US for the first time. They are seeking assurance that the act would not
apply to them if such contingency would arise in the future.
Held: Determination of scope and constitutionality of the statute is too remote and abstract. No controversy appropriate for special
adjudication. Action seeks no more than assurance that statute does not govern hypothetical situations.

BAGUIO CITIZENS ACTION v CITY COUNCIL (1983)


Ordinance passed by Baguio City Council considering squatters as bona fide occupants.
Declaratory relief by citizens to declare ordinance as invalid. CFI dismissed petition on ground that ordinance already declared
valid in crim case, squatters not made parties and declaration not necessary and proper.
Held: In crim case, CFI only declared that Council can modify or repeal its own laws, but not that whole ordinance is valid.
RoC does not state that non-joinder of persons who have or claim any interest would be defect in jurisdiction. It only
states that those not made parties shall not be prejudiced. If at all, case should be dismissed because decision would not
terminate uncertainty for failure to include necessary parties.
Although declaration would affect squatters, they are not necessary parties. Issue is power of Council to enact
ordinance. Even if not impleaded, judgment would be binding on squatters.

NEW YORK FOREIGN TRADE OPERATORS v STATE LIQUOR ASSOC (1941)


Plaintiff operates in foreign trade zone where foreign merchandise can be manipulated without being subj to customs law. It
adds pure water to foreign distilled spirits without distiller’s license from State Liquor Authority. Plaintiff seeks declaratory relief
because Authority is threatening them with injunction unless they get license.
Held:
Controversy must involve rights and other legal relations. Power to render declaratory judgment does not include