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In the case of Far East Bank vs Toh Sr., the Supreme Court ruled that old age
constitutes good reason. But as you would see, the counsel therein is no other
than the First Gentleman Mike Arroyo.
While in Santos vs COMELEC, the Supreme Court held that a valid exercise of
the discretion to allow execution pending appeal requires that it should be based
upon good reasons to be stated in a special order. The following constitute good
reasons and a combination of two or more of them will suffice to grant execution
pending appeal:
1) Public interest involved or will of the electorate;
2) The shortness of the remaining portion of the term of the contested office; and
3) The length of time that the election contest has been pending.
Q: What if the Judgment Obligee purchases the property, who may redeem the
property?
A:
1. The judgment obligor or his successor in interest; and
2. A redemptioner.
Q: Who is a redemptioner?
A: A creditor who has a lien by virtue of an attachment, judgment or mortgage on
which the property was sold, subsequent to the lien under which the property
was sold.
Q: Supposing one hectare of land was sold at public auction. The Judgment
obligee was the highest bidder. The judgment obligor may redeem that. But in
this example, who would the redemptioner be? Under what lien is the property
sold?
A: The property here is being sold under a lien of a judgment, but more
particularly, this is a sale on execution under Rule 39 as distinguish from other
sale from foreclosure or sale on attachment. Supposing B is a redemptioner,
what would be his lien be to make it subsequent under which the property was
sold? That will be your number 5 question in your midterm exam. Give an
example of redemption by a redemptioner.
Supposing Mr. A filed a case against Mr. B for recovery of sum of money for P10
million. If A want to secure a favorable judgment, he will seek the attachment of
the property. He will apply that at the commencement of the action.
So if the action started in 1990, then it will not be finish in one year time, chances
are it will be finish in 10 to 15 years time. But since you applied for attachment, it
is already attached and the property has become in legal custody because of the
writ of preliminary attachment. But it does not mean that this property can no
longer be legally dealt with.
Pag attachment kasi, it happens sa umpisa pa lang ng kaso. Pag tapos na yung
kaso, you do not avail of attachment but rather execution.
NOTE: So if the property was sold in execution, chances are there will be “no
redemptioner” Why? Who will deal with a property which is already subject of a
judgment? But if it was sold on a mortgage prior to a judgment, the judgment
obligee is a redemptioner because his lien is subsequent to the lien under which
the property was sold.
Let us go now to the period, remember this only applies to Real Properties.
Q: What is the period of redemption?
A: One (1) year from the registration of the certificate of sale
For example, the certificate of sale was registered on January 1, 2000. The
redemption period expires on December 31, 2000. Period is reckoned not from
judgment, not from execution, not even from sale but from registration of the
certificate of sale.
Q: What is the period within which a redemptioner may redeem the property?
A: Sixty (60) days after the last redemption
Q: Supposing W, a redemptioner, would like to redeem it from X who was the first
purchaser, being a redemptioner, in May, can W purchase that?
A: X purchased it from January 5, May na ngayon, no more because a
redemptioner has only sixty (60) days from the last redemption.
NOTE: In redemption, if the judgment obligor redeems it within the one (1) year
period, there can be no further redemption. But if it is redeem by a redemptioner,
there can be continuous redemption, within the period of sixty (60) days even
beyond the one (1) year period. Rationale is the “with one (1) property, the law
provides payment as many obligation as possible”
Q: What if after the property was sold it is not enough to satisfy the judgment?
A:
1. First, ask for the examination of the judgment obligor;
2. Then ask for the examination of the obligor of the judgment obligor
because the obligor of the judgment obligor may remit payment directly to
the judgment oblige without going through the judgment obligor.
3. Sale of ascertainable interest. Dito na magtatapos remedy na to.
Q: During the one (1) year period to redeem, yung mga rents, income of property,
to whom shall it belong?
A: Sa judgment obligor pa rin
Q: But how about the judgment oblige, what can he get out of it?
A: All these earnings will be added later on, in the meantime, you do not take it
from the judgment obligor.
Q: When will the purchaser take possession and ownership over the property?
A: Upon the expiration of the period of redemption. How? Consolidation of title
na. You do not have to go to court anymore. Pag may tao pa don, writ of
possession tayo as held in the case of Idolor vs CA. Once consolidated, tapos
na.
Remember, if the judgment obligor is the one who redeems the property, he may
immediately ask for consolidation because the property has already returned to
the original owner. But if the purchaser is the redemptioner, he can have it
consolidated only after the one (1) year because of the right of the judgment
obligor to redeem the property within the period of one (1) year from registration
of the certificate of sale.
Section 47 Rule 39
In relation to Motion to Dismiss. It is res judicata. Effect of Domestic Judgment.
a) Action in Rem- it is conclusive upon the thing itself
b) Action in Personam- conclusive only upon the party
c) Conclusiveness of Judgment- it is a form of res judicata. But as
distinguished from bar by prior judgment, there is no identity of cause of
action in conclusiveness of judgment.
Section 48 Rule 39
Foreign Judgment
In relation to Rule 76 and 77, re probate of a will allowed abroad.
To implement a foreign judgment, you have to file an action to enforce a foreign
judgment- the subject matter is the action.
Remember now the remedies that we have already discussed. These are the
following:
1. Motion to Dismiss;
2. Dismissal of Actions;
3. Demurrer to evidence;
4. Judgment on the pleadings;
5. Summary judgment;
6. Motion for New Trial and/ or Motion for Reconsideration;
7. Petition for Relief from Judgment/ Appeal
8. Appeal proper; and
9. Annulment of Judgment
RULE 40
This rule applies only to Inferior Courts. Remember our jurisdiction under BP 129
as amended by RA 7691
NOTE: No judgment of the MTC/ Inferior Court go directly to the Court of Appeals
or Supreme Court. NEVER! As an exception to the rule, when the MTC or inferior
court exercises its “delegated jurisdiction”. But if you would observe, this is not
really an exception because the MTC/ inferior court here is acting as an RTC,
hence its appeal is to the CA.
There are two procedures involved in the Inferior courts; they are the regular
procedure and summary procedure. Remember that we do not have summary
procedure in the RTC. So whether the Inferior court exercised regular or
summary procedure, the same is appealable to the RTC within the 15-day period
in cases of regular procedure, and 10-day period in cases of summary
procedure, counted from the notice or receipt of a copy of the judgment. From
therein, you file a notice of appeal or record of appeal as the case maybe.
ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED
REMEDIAL LAW REVIEW 2007
Remember that MTC now can take cognizance of probate proceedings whether
testate of intestate, in cases of probate proceeding there can be multiple
appeals. In record of appeal, the court does not automatically lose jurisdiction, it
is only the subject matter appealed from.
Q: Where does the appellant files the notice of appeal or record on appeal?
A: It is filed before the inferior court/ MTC (court of origin)
Q: When does the appellate court acquire jurisdiction over the case appealed
from?
A: The appellate court acquires jurisdiction not only from the filing of the notice of
appeal or record on appeal, but upon payment of the correct docket fees.
NOTE: The venue of transmittal of record is in the same region or in the same
district that of the court of origin. Upon receipt of the appellate court, the clerk of
court gives notice to the parties that the record has already been transmitted and
the appellant, upon receipt of such notice, shall submit a memorandum within 15
days. Failure to submit such memorandum is a ground for the dismissal of the
appeal. On the otherhand, the appellee shall also be required the same
memorandum as required within the same period. Upon submission, judgment
may be rendered.
Rule 41 section 39 is important and said rule also applies to Rule 40.
Q: When does the court of origin loses jurisdiction over the case? When is
appeal perfected?
A: In cases of Notice of Appeal or record on appeal, upon the filing thereof in due
time, as to the appellant. The court loses jurisdiction over the case upon the filing
of notice of appeal or record on appeal, as the case may be, and expiration of the
period to appeal of the other parties.
Section 8 of Rule 40 is also important. Bagong provision to. Dati, when the
Inferior court dismisses the case on the ground of lack of jurisdiction over the
subject matter and on appeal it was affirmed by the RTC, it will be dismiss
without prejudice of re filing the case, hence double docket fee. Now, the RTC
will automatically assume jurisdiction if it has jurisdiction. The distinction between
the first and second paragraph under the said section is the reception of
evidence.
RULE 41
It speaks of Judgment or Final order of the RTC exercising original jurisdiction
appealed to the Court of Appeals.
Both in petition for review and review on certiorari, you can ask for extension of
time to file the same. In these three cases, all emanated from the RTC.
Q: Again, when is appeal perfected? When the court does lose jurisdiction?
A: Rule 41 Section 9
Upon perfection of appeal, the clerk of court of the RTC transmits the record but
he must ascertain the same that it is complete.
Remember the Domingo Neypes doctrine, Fresh day rule applies also to Rule
41 upon denial of the Motion for New trial or reconsideration.
NOTE: Section 8 Rule 40 is not applicable to the RTC. But Section 9 of Rule 41
is applicable both as to the MTC and RTC.
Q: What if a motion for new trial or reconsideration is denied, when will they file?
A: Remember the fresh day rule, within 15 days from notice of denial. That is
your Domingo Neypes doctrine.
Q: Upon appeal, can A now file a motion for execution pending appeal with the
trial court?
A: Yes, under Rule 39 Section 2 in relation to Rule 41 section 9, a motion for
execution pending appeal will be allowed upon motion with notice to the adverse
party, as long as the original record has not been transmitted to the CA.
Q: By what authority?
A: Under the residual jurisdiction.
Q: When the record has already been transmitted, where will you file?
A: To the Court of appeals, but note, the CA can NEVER issue writ of execution
but only an order directing the Trial court to issue a writ of execution.
It is incumbent now for the clerk of court of the RTC to transmit the record to the
CA and therefrom, the duty shifts to the clerk of court of the CA.
Q: Rule 40 vs Rule 41
A: Under Rule 40, the appellant files a memorandum upon receipt of the notice
of the order of the court directing him to file the same within 15 days from receipt.
A memorandum is a summary of what transpired in the trial court and does not
require a format. Under rule 41, appellant files an appellant’s brief and the
appellee an appellee’s brief within the period of 45 days and thereafter an
appellant’s reply brief (discretionary) within the same period. The Briefs are
mandatory and non compliance of which is a ground for the dismissal of an
appeal as provided for in Rule 50 Section (f). The substance of the appellant’s
brief is the arguments, discussion in the assignment of errors.
NOTE: If you are using the record of the case, you do not use your personal
record but rather the record on the appellate court.
Just remember that Rules 41, 44 and 50 are related to each other.
RULE 42
The Regional Trial Court here is acting or exercising its appellate jurisdiction. The
case started from the MTC, appealed to the RTC and a petition for review with
the CA. Examples are cases of Unlawful detainer and forcible entry.
Appeal here is by petition for review; distinguish the same from certiorari under
Rule 45. Under Rule 42, it is similar to an original complaint. Errors committed by
the Trial Court (MTC) and also by the Appellate Court (RTC). You do not file a
notice of appeal or record on appeal here, what you file is a petition for review. It
also requires payment of the correct docket fees. Upon the receipt of the Petition
for Review, the Court of Appeals may either grant or dismiss the petition on the
ground of:
1. Not meritorious;
2. Filed manifestly for delay; or
3. Issues raised therein is not that substantial which requires consideration of
the court.
RULE 43
Remember that wala ng CTA dyan
Just remember the five (5) bodies, CA, CTA, COA, COMELEC and
Sandiganbayan.
In the cases cognizable by the HLURB, the same maybe filed before the HLURB
arbiter. In case of an appeal, it can be made to the HLURB Commissioner, then
appeal to the Office of the President. The decision of the Officer of the President
is appealable to the CA.
In the cases cognizable by the DARAB, appeal to the secretary. You need not
make an appeal to the Office of the President since it can be argued that the
Secretary is the alter ego of the President. Then from there, you appeal to the
CA.
RULE 45
Section 1 provides that it limits only to three (3) tribunals:
1) Sandiganbayan;
2) Court of Appeals;
3) Regional Trial Court; and
4) Any other body authorized by law.
Issues raised therein are only pure questions of law.
Q: Do not confuse this with Rule 65. Most Bar questions, they asked you to
distinguish Rule 45 from Rule 65. The two may be distinguish:
A:
1. Under Rule 45, it is a mode of appeal while in Rule 65 it is a special civil
action;
2. Under Rule 45, it needs to comply with the requirements of an appeal, you
do not change the parties involved therein and you have 15 days to make
an appeal from notice of the judgment or order. While under Rule 65, this
is a separate action, hence it need not comply with the requirements of an
appeal. The parties herein is the court or officer or tribunal and you have
60 days to file a petition for certiorari from notice of the judgment.
Q: Is it necessary for the court to acquire jurisdiction over the person of the
parties?
A: In the case of the petitioner, the Supreme Court acquires jurisdiction over his
person upon the filing of the petition while in the case of the respondent, the
court acquires jurisdiction over his person upon receipt of the order directing him
to file a comment.
NOTE: In the Court of Appeals, what can be raised are pure questions of fact
and law or questions of fact only. In the Supreme Court, questions of law only
without facts because the Supreme Court is not a trier of facts and is not
suppose to scrutinize and accept evidence.
RULE 46
Original cases filed. Concurrent Jurisdiction. Certiorari Prohibition and
Mandamus, as well as quo warranto and annulment of judgment of the RTC is
originally filed to the CA. But remember, even if it’s concurrent, you do not have
the option, you still have to apply the hierarchy of courts.
RULE 47
Annulment of Judgment, this is your last remedy available. It refers to judgment
or final order of the RTC. It is exclusively cognizable by the CA.
Q: Suppose B filed a case for a sum of money in the MTC against A. A decision
was rendered in favor of the latter. No motion for new trial, no motion for
reconsideration and no appeal was taken therefrom. There is extrinsic fraud. He
filed an annulment of judgment, where will he file it?
A: Not with the CA but to the RTC. Remember, walang didiretso from MTC to CA
or SC.
RULE 48
Preliminary Conference here is at any time.
RULE 50
Read Section 1
RULE 52
Motion for Reconsideration, same ground with Rule 37. Filed only with the CA.
RULE 53
New Trial based only on Newly Discovered Evidence. Why? The CA now can
receive evidence unlike before.
RULE 55
Summons
RULE 56
Amended already, no more automatic appeal.
PROVISIONAL REMEDIES
But if you are asked, don't say attachment as a provisional remedy but rather it is
preliminary attachment. Don't say injunction as a provisional remedy but rather
preliminary injunction. As to receivership, yes it is both an action and a
provisional remedy. Technically, it is not the receivership which is the provisional
remedy but rather appointment of a receiver because in receivership it is also a
kind of action. And then you have replevin or delivery of possession of personal
property. And then finally you have support pendente lite. Support is not a
provisional remedy but it is support pendente lite which is a provisional remedy.
Now, let me give you a bird's eye view of these provisional remedies.
First, because they are provisional, they cannot stand alone. Being provisional
remedies, they are dependent, contingent, or adhere to a principal action. So that
you cannot find an action for preliminary attachment. It must always be adhered
to the principal action.
Q: Because of that, what are the principal actions to which these provisional
remedies attach?
A:
1) As to preliminary attachment, the principal action is recovery of real or
personal property. If you try to look at Section 1 Rule 57, you will find out that
all the actions there are for recovery of either real or personal property.
2) As to preliminary injunction, the principal action is injunction although these
seldom find, in actual practice, an action for injunction because it always goes
with some other actions. Like for example specific performance and injunction
plus damages with prayer of preliminary injunction. Is there an action which is
injunction? Yes. Under Section 4 of Rule 39.
3) As to receivership, receivership is the principal action. The provisional remedy
is appointment of a receiver. If you go and look at Section 4 of Rule 39, you
will see that receivership is an action.
4) As to replevin, the principal action is recovery of personal property. In
replevin, a foreclosure on mortgage is possible.
5) As to support pendente lite, the principal action is support.
But let us be more specific, because prior to the 1997 Rules of Court injunction,
for example, is cognizable only by the RTC. But with RA 7691 (expansion of the
inferior courts) and looking at Rule 70 (Sections 15 and 19, all about injunction),
ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED
REMEDIAL LAW REVIEW 2007
therefore under the present rules, the preliminary injunction is now cognizable by
the inferior courts. Before the effectivity of the 1997 Rules, that was applied also
by jurisprudence only on unlawful detainer. But now it applies to both unlawful
detainer and forcible entry as is specifically provided under Rule 70.
Q: How about support pendente lite which adheres to an action for support?
A: Remember that it cannot be taken cognizance of by the inferior courts
because support is an action which is incapable of pecuniary estimation.
Therefore, support pendente lite is only cognizable by the RTC because support
to which it adheres is incapable of pecuniary estimation. Exception: In criminal
cases. Because the present rules on criminal procedure speaks that once a
criminal case is filed, the civil aspect is deemed instituted with it under Rule 111.
Hence, if the action is criminal in nature but cognizable by the inferior court and
the prosecution includes the civil action for support, then support pendente lite
can be taken cognizance of by the inferior courts. Example: complaint for
seduction which is cognizable by the inferior courts. And together with that you
pray for the acknowledgment of the child (suppose merong anak) and you pray
for support pendente lite. In this instance the support pendente lite is taken
cognizance of the inferior courts.
In Attachment: both inferior courts and RTC depending now on the principal
action to which the provisional remedy attaches.
Q: How do you secure, aside from these requirements, the writs for these
provisional remedies?
A:
1) In case of preliminary attachment, you may secure it ex parte. Although the
writ cannot be implemented ex parte but it can be issued ex parte.
2) In case of preliminary injunction, as a general rule you cannot secure it ex
parte under Section 5, Rule 58, although in cases of urgency, that injunctive
ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED
REMEDIAL LAW REVIEW 2007
relief for a period of 72 hours can be granted summarily (meron pa din notice
and hearing for due process). That is how stringent in applying for injunctive
relief.
3) In replevin, you cannot get it ex parte.
4) In support pendente lite, there is a peculiar provision under Section 2 (Rule
61) wherein the respondent, within a period of 5 days from notice, is bound to
file his comment. And if he does not file his comment, the case will be heard
on the application only (Section 3) within 3 days.
Q: Once the writ is granted or issued, how do you discharge the writ?
A:
1) In case of preliminary attachment, it may be discharged under Sections 5, 12
and 13 of Rule 57. Cash deposit or counter bond (Secs 5 and 12) or a motion
questioning the propriety or regularity of the issuance of the writ (Section 13).
2) In case of preliminary injunction, it cannot be discharge it by a bond neither if
it be granted by a bond, although bond is required but a counter bond does
not discharge a writ of preliminary injunction.
3) The same thing with replevin and receivership, you cannot discharge it with a
bond. You have to file a motion questioning the propriety or regularity of the
issuance of the writ.
4) In support pendente lite, there is no bond. If the judgment is in favor of the
respondent, the support pendente lite must also be discharged because it has
no basis to stand with.
RULE 57
PRELIMINARY ATTACHMENT
Provisional remedy: Preliminary Attachment
Principal action: recovery of either real or personal property
Memorize Section 1 (the grounds) of Rule 57. Remember, you will appreciate
Rule 57 had you understood Rule 39 because there are cross-references
between these provisions. Section 7 of Rule 57 you will find out that that is also
practically the same or similar provision in Section 9-11 of Rule 39. Section 16 in
Rule 39 is Section 14 Rule 57, and Section 7 Rule 60 (Replevin). Try to analyze
it, pare-pareho. The 3rd party claimant will simply execute an affidavit. The sheriff
will not be bound to hold it but deliver it to the 3rd party claimant. Yang v. Valdez
(was given in the bar about 5 years ago) - the 5 day period of redelivery bond.
You have now to distinguish a bond from a counter bond. Later on, remember
that it is different from a supersedeas bond which you have studied and under
Settlement of Estate. Here, we are dealing with bond and counter bond. Bond is
required of the applicant. Counter bond is required of the person against
whom the application was filed. Deposit can be cash either on the part of the
plaintiff or the defendant as the case may be.
Q: Take note of Section 1. When can you file or apply for a writ of preliminary
attachment?
A: It says there at the commencement of the action or at any time before entry of
judgment.
Q: Bakit? Why should you not apply for a writ of preliminary attachment when
judgment has already been entered?
A: Because your remedy is not attachment but your remedy is execution under
Rule 39. Remember when we were discussing Section 27-29 of Rule 39
(regarding redemption and redemptioner), so that when a property was sold on
attachment, there are possible redemptioners because Section 1 says at the
commencement of the action, you already apply for the issuance of the writ of
preliminary attachment. And if the writ is issued and implemented, the sheriff, to
whom the writ is addressed, takes actual custody of the property if it is capable of
manual delivery. In the case of replevin, ibibigay ng sheriff sa applicant after 5
days if there is no redelivery bond is filed. But in the case of preliminary
attachment, kukunin niya yan for safe keeping. And it will only be sold after
judgment is rendered in favor of the plaintiff (applicant).
Q: Once a property has been replevined and again it was attached, is it still
valid?
A: Yes. once the property is replevined it can still be attached. But if the property
is attached it cannot be replevined. Because in attachment, you may not take
possession but in replevin you have to take possession.
Q: A 3rd party can deal with the property that has been attached. Suppose it was
mortgaged with a bank after it has been attached, is it possible?
A: Yes. The mortgage becomes a lien subsequent to the lien under which the
property was sold if ever the plaintiff wins in the case.
You cannot just attach right and left if there is no ground. That is why let me
emphasize Section 3 of Rule 57.
1. There must be a valid cause of action. Because preliminary attachment is
only provisional so if the cause of action is invalid, the preliminary attachment
is also invalid.
2. There must be a valid ground among the 6 enumerated grounds under
Section 1.
3. There must be no other security. Or if ever there is, the security is not
sufficient.
4. The order must be equivalent to the sum for which you are asking.
NOTE: These 4 requirements must be contained in an affidavit. So your affidavit
is pro forma or insufficient if it does not allege these 4 basic requirements as
enumerated under Section 3. Aside from that affidavit of merits, bond must
accompany it.
Second action, an action also for recovery. But look at the defendant here, the
defendant is a public officer, officer of a corporation, attorney, factor, broker,
agent, or clerk. In other words there must be a fiduciary relationship between
the applicant and the respondent.
Third action, recovery of possession, this time, against a party who removed,
disposed, or does not disclose it, or who hid these properties.
ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED
REMEDIAL LAW REVIEW 2007
Javellana v. D.O. Plaza Enterprises, Inc., L-28297, March 30, 1970 illustrates
the rule prior to the 1997 Rules of Court.
Facts of this case: There was a simple sale of property, let's say the purchase
price was P100, 000.00 D.O. Plaza paid 50% and the balance was secured with
postdated checks. Plaza took possession of the property sold. Later on, the
checks, which were in payment of the obligation contracted, bounced. It all
bounced. An action for sum of money was filed with prayer of preliminary
attachment using that the respondent was guilty of fraud in contracting its
obligation. When it reached the Supreme Court, the SC said no. Preliminary
attachment must be discharged because there was no fraud in contracting the
obligation but there was fraud in the performance thereof. And at that time, wala
pa yung term na in the performance thereof. Hence, the defendant here won in
the sense that the preliminary attachment was invalid.
That is why when they amended the 1997 Rules of Court, using the case of D.O.
Plaza, they included it in the present rules.
Paragraph e, is one against a party who tries to dispose the property again in
fraud of creditors.
SC case: So here is a businessman who was engaged in buying and selling. So
when he owed somebody a sum of money, that somebody filed a case against
this businessman and applied for a writ of preliminary attachment on the ground
that the businessman was disposing his property in fraud of creditors. The SC
said NO. He is disposing his property in line of his business precisely he is in buy
and sell. If he does not dispose his property, how will he ever be able to pay you.
The attachment was invalid.
Another SC case: Wherein the businessman who had a sari-sari store. A case
was filed against him for a sum of money and a writ of preliminary attachment
was applied for. The SC said YES, the writ of preliminary attachment was validly
issued because there was disposal of the property in fraud of creditors. Even if
the disposal was made in line of his business, the SC held that the disposal was
made at midnight and through the backdoor. So there is fraud.
NOTE: The first two stages may be done ex parte. But the last stage must
always be with prior or contemporaneous service of summons. Hence that
applied, you can avail of paragraph f of Section 1 of Rule 57 in converting the
action in to an action in rem. Because the writ of preliminary attachment can be
issued even without service of summons.
When the property has been attached, it does not mean that the property is
already yours. You have to wait for the judgment before you can dispose of the
property either by public auction or possess it as owner.
Q: Suppose the plaintiff loses under Section 20, what will answer for damages?
A: The bond will answer for damages.
NOTE: This is the peculiarity of rule 57. Unlike all other bonds which answer only
for damages, it is only in Rule 57 will the bond answer for the judgment. So you
underline the word judgment. Kasi dito mo lang makikita yan sa Rule 57.
Because in Rules 58-61, the bond answers for damages. While in Rule 57, the
bond answers for judgment. Ano'ng ibig sabihin nun? Sometimes damages can
be separated from judgment. But in most instances hindi. Let's say defendant is
ordered to pay P20,000 as principal obligation and damages of P10,000, so
hiwalay. In other cases the bond or counter bond only answers for the P10,000.
But in preliminary attachment, the bond or counter bond answers for the
P30,000, judgment and damages.
Section 5 speaks of a cash deposit or a counter bond. The counter bond will
answer for the judgment. The cash deposit will also answer for the judgment,
May pinagkaiba ba yun? Siyempre iba yun. Yung cash deposit, pera na yun. But
businessmen don't usually do that. What they do is through surety. And this is an
instance where surety is automatically impleaded without the requisite service of
summons in acquiring jurisdiction over the person of the defendant.
The difference is, in Section 5, the writ has not been implemented but it is
already issued. In the case of Section 12, the writ has already been implemented
and custody of the property sought to be attached is already in the hands of the
sheriff. The property is already in custodia legis.
Regardless in what stage, whether the writ was just issued but not yet
implemented or is contemporaneously implemented, the defendant can
immediately file for a counter bond. The counter bond, in effect, automatically
discharges the writ.
Section 13, another means of discharging the writ by filing a motion in court
questioning the propriety or regularity of the issuance of the writ. Whether the
writ has already been implemented or not, you can avail of Section 13.
Or suppose the bond which was filed was very insufficient. There was a claim for
P20M and the bond was only P1M. So, the issuance of the writ is irregular and
improper.
Or it was issued by the court on the ground not specifically stated in Section 1 of
Rule 57. Because the 6 grounds there are EXCLUSIVE. Wala ng iba.
Remedies are Sections 5, 12 and 13. These are the means to discharge the writ
of preliminary attachment.
Q: Can one avail of Section 12 and avail again Section 13 in the same case?
A: Yes, it can happen. If I was a businessman and a case was filed against me
and a writ of preliminary attachment was issued against my sari sari store, and
the writ is implemented, I cannot proceed with my business because it is already
in custodia legis. I cannot start selling this because the property which has been
attached is reserved for judgment. Remedy? I immediately file a counter bond,
and the writ is automatically discharged. So i can again continue in selling my
merchandise. Meanwhile when there was no writ anymore, I'll file a motion before
the court claiming that the issuance was improper and irregular. I'm not praying
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anymore for the discharge of the writ but rather for the discharge of the counter
bond. So answer is YES. One can avail both 12 and 13.
I was saying, it is possible that the applicant loses in the case. It is not a
guarantee that when you ask for a writ of preliminary attachment, you will win in
the case. Even if you win in the case, but you may lose in your application for the
writ of preliminary attachment.
Q: How about a 3rd party claim, which you find in Section 14 of Rule 57?
A: If there is a 3rd party claim, the same provision as you find in Section 16 of
Rule 39 applies. The 3rd party claimant executes an affidavit, gives it to the
sheriff and then the sheriff will deliver back the property, which has been
attached, to the 3rd party claimant unless the applicant secures the sheriff with
another bond. Pareho rin yan sa Replevin, Section 7 of Rule 60 and Section 16
of Rule 39.
NOTE: Common error of the students think that since the 3rd party claimant files
his claim, then the 3rd party claimant should file for the bond. Atty. Brondial
corrects that it is not. The applicant for the writ who should file the bond without
prejudice, of course, to a filing a case against the 3rd party claimant who filed a
3rd party claim frivolously and fraudulently. And that case can be threshed out in
the same action or even in a separate action.
RULE 58
PRELIMINARY INJUNCTION
Provisional Remedy: Preliminary injunction
Principal Action: Injunction
We said you find an action for injunction in Section 4 in Rule 39. But seldom will
you find an action filed specifically for injunction only. It is coupled always with
other causes of action. Like damages, or recovery of property with injunction and
prayer for preliminary injunction and TRO.
Madaling intindihin ito ngayon, these are always in the papers. Ngayon,
maraming mga pulitiko ang hinahabol at dinidismiss, kaya they are all filing
injunctive relief. They are praying for annulment of the order of dismissal or
cancellation of the order of dismissal with prayer for injunction and writ of
preliminary injunction. Where do they go? To the CA because the defendant here
is the DILG. So pwede yun.
While injunction can be availed of in any court, including the SC, but if you read
cases and statements to the effect that you cannot file for an action for injunction
to the SC it is because it is not a court of original jurisdiction over this action
except certiorari, prohibition, mandamus, quo warranto, habeas corpus.
Q: What are the requirements in order for a party to file an injunction with prayer
for preliminary injunction?
A: This basic requirement is a right of the applicant.
1. First requirement: The applicant must have a right. This right must be
actual, existing and valid and not just an inchoate right or a right not in esse
(substantial).
Example of an inchoate right is the property of your parents. And you claim
to be an heir. You are not entitled to the property unless your parents die.
Your right to the property is just inchoate.
2. Second requirement: There must be a violation of that right or threatened
violation. So the violation may not be actual. It can only be a threat and you
can already seek protection through injunction.
3. Third requirement: The violation or threatened violation will result in
irreparable damage and injuries.
Take note of these three fundamental requirements.
Example is the Idolor case.
Preliminary injunction has no time frame. After trial that can become permanent.
But remember that a preliminary injunction is a provisional remedy attached to
injunction. So when a preliminary injunction has become permanent, it means
that you already won the case of injunction. But not the TRO, because the TRO
is preparatory to preliminary injunction. That is why there is a time frame in the
TRO which is 20 days in cases of the RTC and MTC and 60 days of CA.
Q: The requirement is verified application and bond, when do you apply for this?
A: You apply for preliminary injunction at any time in the course of the action
even at the commencement of the action or anytime thereafter but before
judgment.
Let me illustrate: Suppose when you go home tonight, you found your home
without electricity because it has been cut by MERALCO for non-payment of your
electric bill. So you want a return to the status quo, so you file for a mandatory
injunction, mandating the MERALCO to return electricity to your residence.
Suppose when you arrived at home what you got was a notice of disconnection,
may ilaw pa kayo. The notice of disconnection is a warning. It is a threat of a
violation of your right or violation of your contract. So what do you file?
Prohibitory injunction, you seek to maintain the status quo of having lights in your
house.
The rules provide that when you apply for injunctive relief before a multi-sala
court, the executive judge, even before hearing the case, must give notice of
raffle. Raffle pa lang, may notice na dapat. So that if there is no notice of the
raffle date, it is already violative of the due process clause of the constitution.
Kung single sala, wala na. Ang notice mo ay notice of hearing because hearing is
mandatory. But if it is in Metro Manila or if it is a multi-sala court, 2 notices,
Notice of raffle and notice of hearing. So ang ipapadala munang notice is
when is the raffle date and your failure to attend after notice, you waive your right
to be present at the raffle. And then later on is notice of hearing.
During the hearing, the applicant should present evidence and the defendant
should present his evidence. Ordinarily, what is given is TRO. This TRO, if it is
issued by the RTC or MTC, is good only for 20 days. Upon expiration, it cannot
be renewed. It is grave abuse of discretion on the part of the court to extend even
upon agreement of the parties cannot and should not be extended. In the case of
the CA, it is 60 days.
Q: Where do you count the 20 day or 60 day period as the case may be?
A: From issuance.
I would like to find out, that every TRO cannot be granted ex parte except on a
very urgent matter where the hearing can be done summarily. In the case of a
TRO which is good for 72 hours, this time from notice.
Q: Why 72 hours?
A: Kasi dito sa Pilipinas, ordinarily non-working day ang Saturday and Sunday.
So hindi pwedeng 48 hours baka kasi pumatak dun sa Saturday or Sunday. Kaya
72 hours because it is 3 days, kahit yun pumasok ng friday ng hapon, papatak
yun ng lunes. O pag binigay yang ng saturday, papatak pa din yan ng lunes.
If the court continues your 72 hour TRO to a full 20 day TRO, the 72 hours will be
included in the 20 days. This time counted from the issuance of the TRO of the
72 hours.
Q: Why 20 days?
A: It is because this is roughly 3 weeks. And within a 3 week period, the court
must hear whether or not to grant the writ of preliminary injunction. The court is a
very busy body and you cannot set it for hearing immediately because there are
other cases filed before it.
or injury.
Any action, if there is a violation of a right, you can ask for injunctive relief.
How about damages, you are cross-referred to Section 20 of Rule 57. But the
bond here answers only for damages.
RULE 59 RECEIVERSHIP
Q: If you file an annulment of judgment of the MTC, where will you file it?
A: We do not apply Rule 47 because it is for the order of the Regional Trial
Court, we apply the general rule that no actions on appeal can go to the CA or
SC because it is a judgment of MTC. RTC has jurisdiction even though it is
annulment of judgment.
Note: You must be logical in your analysis. Why do we have to preserve the
property? If the property is already there, why do you have to preserve it?
Because it is not being preserve. It is in danger of being loss, dissipated, damage
or the value is being diminished. If such reason does not exist, you cannot ask
for receivership. In administration, the value may be diminished hence the need
for receiver to retain the value of the property or the property is supposed to be
disposed but it is disposed irregularly.
Even a mortgagee can file for a receivership because the property being
mortgaged is in danger of being loss, dissipated, destroyed or the value
diminished.
1997 rules of court hindi pa yan pwede but now pwede na. because the rationale
there is what is actually appealed is not the subject matter of receivership but the
principal action, here it is merely a provisional remedy. Sir does not totally agree
with that because as said earlier receivership may be a provisional remedy or a
principal action, so if it is a principal action definitely it is appealed there. The real
reason there is that it is in the exercise of its residual jurisdiction.
Q: If the 2 requirements are complied with, the affidavit and bond, the court shall
issue an order appointing a receiver, so what are the duties and responsibilities
of a receiver?
A: Sec. 6 Rule 59 a receiver shall have the power to bring and defend 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 the same; to make transfers; to pay outstanding
debts; to divide money and other property that shall remain among the persons
legally entitled to receive the same. However, funds in the hands of the receiver
may only be invested only upon order of the court and upon written consent of all
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the parties to the action. No action may be filed by or against a receiver without
the leave of the court which appointed him.
Q: An order of receivership or appointing a receiver will take over and must have
possession of the property, if necessary these properties refer to everything
under litigation including books of accounts and everything. They are also
obliged to deliver or surrender do not comply what should the receiver do?
A: He can ask the court to cite him for contempt.
One common example here is when a corporation who is now in the stages of
winding up its affairs. During that time, the stock holders usually…nakaw dito
nakaw doon…usually the better solution is for the appointment of a receiver. A
receiver is not necessarily an individual person, it may also be a corporation.
Banko Pilipino for example, it was placed by receivership by the Sentral Bank.
The problem was that the receiver assigned was more corrupt than the stock
holders before the termination of the receivership he left for the States and
stayed there permanently bringing with him all the assets of Banko Pilipino. It
took Banko Pilipino more than 20 years to recover. That is why the receiver is
also obliged to give a report, a return or an accounting of his duties and
responsibilities to the court otherwise before you know it baka lalo lang nawala
and lahat.
Rule 60 Replevin
Q: What is the principal action?
A: Recovery of possession of PERSONAL property
Note: only receivership may only be a principal action but replevin will always be
a provisional remedy.
Q: If A sold a lot to B, then B caused the titling of the property fraudulently in his
favor can A ask for recovery of the property being entitled to the recovery of the
property?
A: No, because replevin only applies to personal property.
The other provisional remedies we studied so far, you apply for the provisional
remedy from the commencement of the action or before judgment and even after
judgment in the case of receivership. But in replevin it should be availed of before
answer.
Q: Why should replevin can only be availed of before answer? Why would an
answer disqualify an application for replevin? After answer it cannot be applied
for anymore, why?
A: When an answer is filed issues are joined and because issues are joined, the
court already knows whether the applicant is entitled to the ownership or
possession. So hindi na igagrant ng court, kaya it must be before the answer
because it is an immediate remedy.
Note: In attachment the taking of the property is for the purpose of awaiting for
the final judgment, here in replevin the reason for the taking of the actual
possession of the property is for safe keeping.
Remember that this is only a provisional remedy, the principal action is recovery
of possession of personal property. Later on, in the principal action you can
thresh out ownership as the basis for the recovery of possession. Therefore
possession becomes an effect of ownership. If he is only entitled for possession,
pwede pa rin.
Yang vs Valdez
The 5 day period is mandatory, even if you put up a redelivery bond but beyond
the 5 day period it will not have the effect intended for.
Note: This is the shortest period wherein the sheriff have custody of the property,
in attachment from application which may be from the commencement of the
action until final judgment which may last for 10 years. Here, you may even file
for receivership kasi baka yung property e ginagamit na ng sheriff. And usually
you do not assign the sheriff or the clerk of court as a receiver. It is even
advisable not to assign a party to the case as a receiver.
We said in receivership that it can happen that there is 2 bond if the applicant is
appointed at the same time as the receiver. In replevin it can be thrice.
Note: We’ve studied 3rd party claim in Rule 39 execution, 3rd party claim in
attachment and again here in replevin. Sec. 16, 14 dito naman 7. The same
provision, meaning if a 3rd party claims ownership or entitlement of possession of
the property subject of replevin then the applicant must file another bond which is
not less than the value of the property. So 3 na. This is without prejudice to a
possible action for damages filed against the 3rd party claimant if the 3rd party
claimant’s claim is found to be frivolous or fraudulent. Where do you file it? Either
in the same action or a separate action for damages.
In attachment if you file for damages Sec. 20 Rule 57 you have to do it before
entry of judgment, dito sa replevin it can be file in a separate action. You should
know the distinctions between the different provisional remedies, they are
different, one from another.
Q: If there is already a writ of replevin and the sheriff already took possession of
the property and given it to the applicant, how can it be discharged?
A:
Yung 3rd party claim, the same provision yun, the same application. In other
words, thru an affidavit furnishing the same to the sheriff, the sheriff is entitled to
deliver it to the 3rd party claimant unless the applicant puts up another bond. So
thrice na lahat, the value of the property.
Do you recall the peculiarity in what we studied in the writ of execution? Under
Rule 39, when there is a 3rd party claim, during the auction sale, even if the
purchaser is the judgment obligee he has to pay. Ordinarily, the judgment
obligee, if he is the purchaser during an auction sale pursuant to an execution he
does not have to pay. But if there is a 3rd party claim, then he has to pay. Why?
Because precisely the ownership is in question.
Dito naman delivery until you put up another bond equivalent to the value of the
property.
While the property now is in the hands of the applicant, the main action should
proceed and what should be the judgment? Important to.
Orosa case
Sec. 9 only in the alternative. Hindi pwede yung 2 ang ibigay.
The best example of replevin is buying a car. But most buyers don’t buy in cash
almost everyone is buying thru installment. Here you are not the owner yet, when
the car is given to you, you execute a mortgage, mortgaging the same car to the
seller. Read the contract, it always has a clause in default, if it says there that if
you default for example 2 months of payment, the seller will have the right to
foreclose the mortgage judicially or extrajudicially. Here, the foreclosure will
always carry a prayer for replevin and the seller is willing to pay twice as much as
the value of the property because the bond is not a cash bond but merely a
surety. Once they foreclose they get the car, complying with all the requirements.
Once they recover it after the case, the same car shall be resold.
attached for a debt worth 1m, it can again be attached. But in the case of levy,
levy on attachment who is …. the first attaching creditor. Kung may sobra
ibabalik dun sa may owner. And you can even be a redemptioner there because
you are a subsequent attaching creditor. So if there are 2 attachment, the 2nd
attaching creditor is or maybe a redemptioner if the property is sold thru levy in
attachment.
Q: Is there any exception to the rule? Are there circumstances wherein support
pendent lite can be taken cognizance by the MTC or inferior courts?
A: Yes, in criminal cases because support pendent lite which attaches to support
can be filed together with the criminal case because in criminal procedure it is
now provided that once you filed a criminal case the civil aspect is deemed
instituted with it.
Q: The usual case of an unwed mother goes to court and ask support for the
child. When can she file it?
A: From the commencement of the action or at anytime prior to final judgment.
Q: Then the court must take immediate action on the provisional remedy of
support pendent lite. What does the court do?
A: The court shall issue an order directing the respondent to file a comment
within 5 days. And with or without comment, hearing must be held by the court.
The hearing here is for the provisional remedy. (parang injunction, it cannot be
granted without a hearing. In preliminary attachment pwede, kasi it can be
granted ex parte but it cannot be implemented without prior or comtemporaneous
service of summons). If he failed to appear, court grant an order of support
pendent lite, here it is only provisional.
An unwed mother living in the squatters area in Tondo asked the court for
support and asked to be granted provisional support to her only child in the
amount of 50k a month. The court will ask why 50k? Panggasulina po. Ilan ba
kotse mo? Wala po. Nanghihiram lang ako ng kotse. Ilang taon na ba ang anak
mo? 3 months old po. Ano ba ang gatas nya? Breast fed po? Sabihin ng court di
mo kailangan ng 50k ang kailangan mo lang e malunggay…LOL. Para mayroong
gatas, and you are only feeding milk to your son… o baka naman may
pinapadodo ka pang iba dyan…LOL. Provisional lang to, kya the court may grant
5k a month provisional remedy.
Note: That this provisional remedy shall depend upon the capacity, eto ang very
wide discretion ng court. Capacity ng person who will give support.
Q: Suppose the respondent does not comply, what should the court do?
A: The court shall issue an order to execute
As we have studied under the Rule 39, only final order or judgment may be
executed. Then why should it be executed? In fact, this is an interlocutory order
like an appointment of a receiver, it is not appealable only subject to certiorari if
there is a ground.
Q: Mother was granted 10k a month, in the process the main action is being
heard which is support proper to make the support pendente lite support already.
Suppose the respondent was able to establish that he is not liable to give support
because he was able to prove that he was not the father. What happens now?
A: Court shall order the return of the paid amount with payment of legal interest
from the dates of actual payment, without prejudice to the right of the recipient to
obtain reimbursement in a separate action from the person legally obliged to give
support. Should the recipient fail to reimburse the amounts, the person who
provided the same may seek reimbursement in a separate action from the
person legally obliged to give such support.
Q: What happens to the provisional remedy which has already been granted, yun
ba ang ibabalik?
A:
Q: If the applicant cannot return the support granted then what happens?
A: She cannot be forced nor be imprisoned for that. But the respondent may
seek reimbursement in a separate action to the person legally obliged to give
support.
People vs Manahan
Acknowledgment must be distinguish and separated from support. If the
defendant is married, under that doctrine, he may be forced to give support but
not to acknowledge the child. The rationale there is in the Family Code because
it would introduce bad blood in the family.
Sir: Doesn’t like that doctrine, he should be forced to acknowledge the child. It is
his fault so why should not he acknowledge.
Q: What is so special about special civil actions? Why are they called special civil
actions?
A: Because each particular civil actions are governed by their own special rules.
Ordinary rules of court does not apply to them but is only suppletory in character.
For example some special civil actions have no summons, the court acquire
jurisdiction over the respondent in a different manner but in ordinary actions
summons is mandatory. Like in certiorari, there is no issuance of summons there,
the court acquire jurisdiction by the issuance of order to file a commnent.
RULE 62 INTERPLEADER
Q: Which court has jurisdiction in an action for interpleader?
A: It may be taken cognizance by MTC or RTC. It depends upon the subject
matter of the interpleader.
Q: Why does it depend upon the subject matter? What can be the subject matter
of an interpleader?
A: Property whether real or personal may be the subject matter of an
interpleader, aside from that performance of an obligation may also be the
subject matter of an interpleader.
For example you found a wallet, you surrender it to the dean, upon opening of
the wallet it was found to contain a check worth 350k payable to cash. A,B,C, and
D alleges ownership. The dean has no other choice but to file an action for
interpleader because there are 4 different claimants. Another example is A and B
are lessor and lessee over an apartment unit. At the end of the contract of lease
A would like to surrender the premises to B, but C and D came forward and said
they are entitled to that. A now does not know to whom to deliver, therefore A
should file an interpleader. Example of obligation, to paint, sculpt, perform.
Note: If you are asked to make a distinction do not define one and period
because you are not stating a distinction at all.
Note: This is the only rule where there is a section for a motion to dismiss.
Defenses and objections, that is what is meant there.
After filing an answer and once the issues are joined then you go to the regular
rules of court which is you go to pretrial then trial.
So if you have an action for interpleader you should ask the court to deposit.
Q: What if the action is for the performance of an act, can you ask for its deposit?
A: No, the person who is obliged to perform will not stay there. It is only
applicable to real or personal property.
Note: The real declaratory relief is stated in the first paragraph of Sec. 1 Rule 63,
the 2nd paragraph which pertains to reformation of instrument or quieting of title is
not declaratory relief it is similar remedies. The 2nd paragraph was added there to
give life to certain provisions of the Civil Code which has no corresponding
procedural aspect. It is even misplaced, it should fall under ordinary action.
Q: Suppose you’ve already filed an action before breach, then pending action
there is already breach, then what happens?
A: Then the action shall be converted into an ordinary action.
Q: Example a regulation of a school was issued stating that by the school year
2008-2009 starting June tuition fees shall be raised by 120%. There was already
a circular to that effect. Declaratory relief was filed, pending action June 2008
came. The increase was already collected from the students so you convert your
action for declaratory relief to what kind of action?
A: Convert is to collection of sum of money.
A and B are lessor and lessee of a property. And the contract of lease is for a
period of 10 years from year 1990 to year 2000. In 1995 the land was overrun by
MNLF and so the lessee left the property. 4 years thereafter, in 1999 the MNLF
was driven away by the military so B returned to the premises. He files for an
action of declaratory relief asking the court to determine whether the contract will
expire 2000 or 2004. why? Because he was not able to avail of the 4 year period
when it was under the possession of the MNLF. So he filed for declaration of
relief, but the action has not yet terminated it is already 2001, by 2001 the action
must be converted into what? Into either unlawful detainer or forcible entry as the
case may be or for recovery accion publiciana.
Lapid vs Laurea
Requirement of certiorari
Russel vs Vestil
Note: Under Rule 45 which is a mode of appeal, the body there acted with
jurisdiction that is why the ground cannot be any of the 3 because it is a mode of
appeal. It is called errors in judgment. Under Rule 65 it is errors of jurisdiction.
Errors of judgment are correctible by an appeal, while error of jurisdiction is
correctible by certiorari.
Before amendment in summary procedure, attorneys fees are limited to 20k wala
na yan ngayon. So if a court grants more than 20k as attorneys fees under the
old law it is clearly excess of jurisdiction. Under the new law it may be grave
abuse of discretion but not anymore excess of jurisdiction.
Court penalizes lawyer in the amount of 20k for direct contempt for coming late.
Maximum penalty is 20k so no excess of jurisdiction but maybe grave abuse of
discretion.
Note: That certiorari does not stop the running of the period of appeal.
Note: Discuss mandamus with quo warranto because of the similarities between
the 2.
Q: The distinction lies in the root of its power since both exercises the same
power which is the power to hear and determine a case, so what is the root of its
authority?
A: In judicial function the root of its power comes from the judiciary itself while in
quasi judicial function the roots of its power comes from the legislative or the
executive department.
Conditions are that there must be no appeal and there is no other plain, speedy,
adequate remedy in the ordinary course of law.
Q: Why no appeal?
A:
The other condition, no plain, speedy, or adequate remedy in the course of law,
in other words you could have filed a motion for reconsideration or you could
have appealed because it is still available, but appeal or MR are not speedy or
adequate remedy in the ordinary course of law. Example motion to quash was
denied, may appeal dun, pero certiorari is the better rule, why? Because if you
saw appeal, tuloy tuloy pa rin ang kaso. You cannot desist from proceeding the
case, are you going to subject, are you going to endanger the client to be
convicted later on? So instead of an appeal or MR then you go to certiorari where
the other court will immediately strike down the resolution.
NOTE: There was an old SC circular which provides that the 60 day period
includes the filing of a Motion for Reconsideration. However, in 2005 there was a
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new circular which states that the old circular does not apply to Rule 65 so the 60
day period is counted from the notice of receipt of denial of the motion for
reconsideration.
Q: Distinguish mandamus from quo warranto. For example: Mayor Atienza has a
city attorney which is Atty. X whom he replaced with Atty. Y with no valid reason.
Against whom may Atty. X file mandamus and against whom may he file quo
warranto?
A: Atty. X can file mandamus against Mayor Atienza because by the latter's act
he was excluded from the enjoyment of his office. Atty. X can file quo warranto
against Atty. Y because he is a usurper of Atty. X's office.
Classic Example: Ninoy cannot file quo warranto against Marcos so his remedy
was to file prohibition. He did not succeed. He succeeded in the tarmac when he
died. What is the moral of the story? Whatever you cannot do living, you might
succeed in death.
Q: Jurisdiction?
A: Concurrent SC, CA or RTC but never in Sandiganbayan except in aid of
appellate jurisdiction
Q: Tuason Case
A: Certiorari will only lie against tribunal exercising judicial/quasi-judicial function.
RULE 67 EXPROPRIATION
Q: Who exercises jurisdiction?
A: The RTC because the action is not capable of pecuniary estimation. The value
of the property being only incidental to the case. (Russel V. Vestil, Brgy San
Roque V. Heirs of Pastor)
Q: Venue?
A: Where the property is located.
Q: Appointment of Commissioner
A: Not more than 3
Men of Integrity
Q: NPC case
A: Apparent conflict under Sec. 1 Rule 17 and Sec. 2 Rule 67
Q: Application?
A: Applicable to both real estate and chattel mortgages.
Q: Deficiency judgment
A: By filing a motion for deficiency judgment.
RULE 69 PARTITION
Q: Jurisdiction
A: RTC because the case is not capable of pecuniary estimation.
Q: If the parties still does not agree, what should commissioner do?
A: Assignment - identical to buying out.
NOTE: Even if only one of the co-owners objects, no assignment
RULE 70
Q: Doctrine in Javellosa V. CA
A: Distinction between Unlawful detainer (UD) and Forcible Entry (FE)
Q: In ejectment the only issue is possession de facto. Can you raise the issue of
ownership? If so what is the effect?
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A: It will not divest the court of its jurisdiction. The court shall resolve the issue of
ownership only to resolve the issue of possession. Resolution as to ownership in
ejectment cases is only provisional.
NOTE: Old rule prior to BP 129 provides that if issue of ownership is raised, the
court is divested of its jurisdiction.
Q: A is the lessor and B is the lessee who was not able to pay rentals for several
months. A filed a case of unlawful detainer against B. Judgment was rendered in
favor of B. Is the judgment in favor of B immediately executory?
A: No because he was already in possession of the property.
Q: How much?
A: Same as supersedeas bond.
Q: When?
A: General rule on or before the 10th day of each succeeding month. For
example the rent due for the month of april should be paid on or before May 10.
Exception: When payment of rental must be paid in advance in accordance with
the contract.
NOTE: Non-compliance with even one month would render the judgment
immediately executory.
RULE 71
Q: What is contempt?
A: Upfront or defiance, act against dignity, integrity and justice of the court