Civ Proc

San Beda College of Law
10
MEMORY AID IN REMEDIAL LAW
CIVIL PROCEDURE
Formal demand of Special features not
RULE 1 one’s legal rights in a found in ordinary civil
GENERAL PROVISIONS court of justice in the actions
manner prescribed by
the court or by the
Statutes regulating the law
procedure of courts will be
construed as applicable to
actions pending and
undetermined at the time of
their passage so long as
vested rights will not be (B)
impaired. ACTION IN ACTION IN ACTION
REM PERSONAM QUASI IN REM
Under the 1987 Constitution,
Directed Directed Directed
the rule-making power of the against the against against
Supreme Court has the thing itself particular particular
following limitations: persons persons
1. shall provide a simplified and Judgment is Judgment is Judgment
inexpensive procedure for the binding on the binding only binding upon
speedy disposition of cases; whole world upon parties particular
impleaded or persons, but
2. Uniform for all courts of the their the real motive
same grade, and successors in is to deal with
3. Shall not diminish, increase or interest real property
modify substantive rights (Art. or to subject
said property
VIII Sec. 5[5]). to certain
claims.
Section 3. Cases governed. Ex. Land Ex. action to Ex. Unlawful
registration recover detainer or
ACTION CLAIM case; probate damages; forcible entry;
proceedings action for judicial
An ordinary suit in a A right possessed by for allowance breach of foreclosure of
court of justice one against another of a will. contract mortgage.
One party prosecutes The moment said
another for the claim is filed before a
enforcement or court, the claim is The distinction is important in
protection of a right converted into an determining the EFFECT of the
or the prevention or action or suit. judgment.
redress of a wrong.
(C)
CLASSIFICATION OF ACTIONS. REAL PERSONAL MIXED
(A) ACTION ACTION ACTION
ORDINARY CIVIL SPECIAL CIVIL Ownership or personal property is Both real and
ACTION ACTION possession of sought to be personal
real property is recovered or where properties are
involved damages for breach involved
Governed by ordinary Also governed by
of contract are
rules ordinary rules but sought
SUBJECT to specific Founded on Founded on privity Founded on
rules prescribed (Rules privity of of contract both
62 to 71). estate
REMEDIAL LAW COMMITTEE

 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan,
Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
11
ex. Accion Ex. Action for a sum ex. Accion The court may allow the payment of
reinvidicatoria of money publiciana
with a claim the deficient docket fee within a
for damages reasonable period but not beyond the
applicable prescriptive or
The distinction is significant in reglementary period.
the determination of venue.
With respect to mixed actions, An action can be commenced
the rules on venue of real by filing the complaint by
actions shall govern, i.e., registered mail. In which case,
where the real property is it is the date of mailing that is
located. considered as the date of
filing, and not the date of the
receipt thereof by the clerk of
court.
(D)
LOCAL ACTION TRANSITORY The date of the filing of an
ACTION
amended complaint joining
Must be brought in a Generally, must be additional defendant is the
particular place, in brought where the date of the commencement of
the absence of an party resides
agreement to the regardless of where
the action with regard to such
contrary the cause of action additional defendant.
arose
Ex. Action to recover Ex. Action to recover

real property sum of money
Section 5. Commencement of
action.
Section 6. Construction.
An action is commenced by:
1. filing of the complaint (the date of General Rule: Liberal
the filing determines whether or construction .
not the action has already Exceptions:
prescribed); and a. reglementary periods
2. payment of the requisite docket b. rule on forum shopping
fees (determined on the basis of
the amount of the claim including
the damages indicated in body or RULE 2
the prayer of the pleading) CAUSE OF ACTION
It is not simply the filing of the Section 2. Cause of Action, defined.

complaint or the appropriate initiatory Essential elements of cause of
pleading but also the payment of the action
prescribed docket fee that vests a trial 1. Existence of a legal right of
court with jurisdiction over the subject the plaintiff;
matter or nature of the action.

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2. Correlative legal duty of the

defendant to respect one’s Section 4. Splitting a single
right; cause of action, effect of.
3. Act or omission of the
defendant in violation of the SPLITTING OF CAUSE OF
plaintiff’s legal right; and ACTION – is the practice of
4. Compliance with a condition dividing one cause of action
precedent. into different parts and
making each part subject of a
CAUSE OF ACTION RIGHT OF ACTION separate complaint.
delict or wrongful act remedial right or right
or omission committed to relief granted by
by the defendant in law to a party to Applies NOT only to
violation of the institute an action complaints but also to
primary rights of the against a person who
plaintiff has committed a delict
counterclaims and
or wrong against him crossclaims.
The reason for the the remedy or means
action afforded or the
consequent relief
the formal statement right that is given – Remedy against splitting a
of alleged facts the right to litigate single cause of action:
because of the
occurrence of the
A. Motion to dismiss on the ground
alleged facts of:
Determined by facts determined by  Litis pendentia, if the first
as alleged in the substantive law complaint is still pending
complaint and not the
prayer therein (Rule 16, Sec. 1[e]); or
 Res judicata, if any of the
RELIEF REMEDY SUBJECT complaints is terminated by

MATTER final judgment (Rule 16, Sec.
the redress, the the thing, 1[f])
protection, procedure or wrongful act,
award or type of contract or
coercive action which property which B. An answer alleging either of the
measure which may be is above-cited grounds as affirmative
defense (Rule 16, Sec. 6)
General Rule on Divisible Contract

A contract to do several things
at several times is divisible,
and judgment for a single
breach of a continuing
the plaintiff availed of by directly contract is not a bar to a suit
prays the court the plaintiff involved in the
to render in his as the means action, for a subsequent breach.
favor as a to obtain the concerning
consequence of desired which the
the delict relief wrong has
Doctrine of Anticipatory
committed by been done and Breach
the defendant with respect Even if the contract is divisible
to which the
controversy
in its performance and the
has arisen. future periodic deliveries are

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not yet due, if the obligor has Section 33 BP129, as

already manifested his refusal amended by RA 7691 - Where
to comply with his future there are several claims or
periodic obligations, “the causes of actions between the
contract is entire and the same or different parties,
breach total,” hence there can embodied in the same
only be one action for complaint, the amount of the
damages (Blossom & Co. vs. demand shall be the totality of
Manila Gas Corp., 55 Phil. the claims in all the causes of
226) actions, irrespective of
whether the causes of action
Section 5. Joinder of causes of arose out of the same or
action. different transactions.
Rule in this section is
PERMISSIVE and the plaintiff SPLITTING OF JOINDER OF
can always file a separate CAUSE OF ACTION CAUSES OF ACTION
action for each cause of There is a single cause Contemplates several
action. of action causes of action
PROHIBITED. Causes ENCOURAGED.

Par. (a): The joinder of causes multiplicity of suits Minimizes multiplicity
of action may involve the and double vexation of suits and
same or different parties. If on the part of the inconvenience on the
defendant parties
the joinder involved different
parties, it must comply with
Sec. 6 Rule 3, thus, there must
be a question of fact or law Section 6. Misjoinder of causes
common to both parties joined of action.
arising out of the same or Not a ground for dismissal of
series of transactions. an action. A misjoined cause
of action may be severed and
Par. (b) requires that: only proceeded with separately.
causes of action in ordinary There is no sanction against
civil actions may be joined, non-joinder of separate causes
obviously because they are of action since a plaintiff
subject to the same rules. needs only a single cause of
action to maintain an action.
Par. (c) As long as one cause
of action falls within the RULE 3
jurisdiction of the RTC, the PARTIES TO CIVIL ACTIONS
case can be filed there even if
the MTC has jurisdiction over Section 1. Who may be
the others. parties; plaintiff and
defendant.
Pars. (d) embodies the
TOTALITY RULE

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REQUIREMENTS FOR A
PERSON TO BE A PARTY TO A Section 3. Representatives as
CIVIL ACTION: parties.
1. he must be a natural or juridical
person or an entity authorized by REAL PARTY IN INTEREST – the
law; party who stands to be
2. he must have a legal capacity to benefited in the suit or the
sue; and party entitled to the avails of
3. he must be the real party in the suit.
interest.
PLAINTIFFS- Those having an

interest in the subject matter Impleading the beneficiary as
of the action or in obtaining a party in the suit is now
the relief demanded. mandatory, in cases allowed
to be prosecuted or defended
DEFENDANTS: by a representative.
1. persons who claim an
interest in the controversy CLASSIFICATION OF PARTIES
or the subject thereof IN INTEREST
adverse to the plaintiff; or 1. Indispensable parties –
those without whom no final
2. who are necessary to a determination can be had of
complete determination or an action. (must be joined)
settlement of the questions
involved therein; or 2. Necessary (or proper)
parties – those who are not
3. all those who ordinarily indispensable but ought to be
should be joined as parties if complete relief is to
plaintiffs but who do not be accorded as to those
consent thereto, the reason already parties, or for a
therefore being stated in complete determination or
the complaint. settlement of the claim
subject of the action. (may or
Neither a dead person nor his may not be joined)
estate may be a party plaintiff
in a court action…Considering 3. Representative parties –
that capacity to be sued is someone acting in fiduciary
correlative of the capacity to capacity. Maybe a trustee,
sue, to the same extent, a guardian, executor or
decedent does not have the administrator, or a party
capacity to be sued and may authorized by law or these
not be named a party Rules.
defendant in a court action
(Ventura vs. Militante 316 An agent acting in his own
SCRA 226). name and for the benefit of an

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undisclosed principal may sue Requisites of permissive

or be sued without joining the joinder of parties.
principal except when the 1. Right to relief arises out of
contract involves things the same transaction or
belonging to the principal series of transactions;
2. There is a question of law
4. Pro forma parties – those or fact common to all the
who are required to be joined plaintiffs or defendants;
as co-parties in suits by or and
against another party as may 3. Such joinder is not
be provided by the applicable otherwise proscribed by the
substantive law or procedural provisions of the Rules on
rule such as in the case of jurisdiction and venue.
spouses under Sec. 4.
SERIES OF TRANSACTIONS –
5. Quasi parties – those in transactions connected with
whose behalf a class or the same subject of the
representative suit is brought. action.
Section 5. Minor or INDISPENSABLE NECESSARY

incompetent persons. PARTIES PARTIES
The action cannot The action can

Under the present rule, a proceed unless they proceed even in the
person need not be judicially are joined absence of some
necessary parties
declared to be incompetent in
order that the court may No valid judgment if The case may be
appoint a guardian ad litem. It indispensable party is determined in court
not joined but the judgment
is enough that he be alleged therein will not
to be incompetent. resolve the entire
The suit can be brought by or controversy if a
necessary party is not
against the minor or joined
incompetent person
personally BUT with the They are those with They are those whose
such an interest in the presence is necessary
assistance of his parents or controversy that a to adjudicate the
guardian. final decree would whole controversy but
necessarily affect their whose interests are so
rights so that the court far separable that a
cannot proceed final decree can be
without their presence made in their absence
Section 6. Permissive joinder without affecting
them
of parties.
PERMISSIVE JOINDER – the

JOINT DEBTORS –
aggregate sum of all the
indispensable party with
claims, determines the
respect to own share and a
jurisdiction of the court.

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necessary party with respect

to the share of the others. Neither misjoinder nor non-
joinder of parties is a ground
for dismissal of the action.
SOLIDARY DEBTORS – either Objections to defects in

is indispensable and the other parties should be made at the
is not even a necessary party earliest opportunity – the
because complete relief may moment such defect becomes
be obtained from either. apparent – by a MOTION TO
STRIKE THE NAMES OF THE
Section 9. Non-joinder of PARTIES impleaded.
necessary parties to be
pleaded. If there is misjoinder, a
separate action should be
The non-inclusion of a brought against the party
necessary party may be misjoined.
excused only on meritorious
grounds. The absence of an
indispensable party renders all
The court may order the subsequent actions of the
inclusion of the omitted court null and void for want of
necessary party if jurisdiction authority to act, not only as to
over his person may be the absent parties but even as
obtained by ordering plaintiff to those present.
to file an amended complaint
impleading the necessary
party therein as co-
defendant.
Section 12. Class suit.
The only sanction for failure to
implead a necessary party REQUISITES OF A CLASS
when ordered by the court /REPRESENTATIVE SUIT.
and jurisdiction can be 1. subject matter of the
obtained over said party is a controversy is one of
waiver of the claim against common or general
him. This is considered as an interest to many
exception to the provision on persons;
penalties imposed on a 2. parties affected are so
disobedient party under Sec. 3 numerous that it is
of Rule 17 which would have impracticable to bring
entailed the dismissal of the them all before the
complaint itself. court;
3. parties bringing the
Section 11. Misjoinder and class suit are sufficiently
non-joinder of parties. numerous or

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representative of the
class and can fully
protect the interests of
all concerned.
Section 15. Entity without
Class Suit Permissive Joinder juridical personality as
of Parties defendant.
There is one single There are multiple
cause of action causes of action
pertaining to separately belonging They may be sued under the
numerous persons to several persons. name by which they are
generally known, but they
cannot sue under such name
Section 14. Unknown identity or name
of defendant.
for lack of juridical personality.
Requisites:
1. there is a defendant The service of summons may
2. his identity or name is be effected upon all the
unknown defendants by serving upon
3. fictitious name may be any of them, or upon the
used because of person in charge of the office
ignorance of or place of business
defendant’s true name maintained under such
and said ignorance is name. (Sec. 8, Rule 14)
alleged in the complaint
4. identifying description INSTANCES WHERE
may be used: sued as SUBSTITUTION OF PARTIES IS
unknown owner, heir, PROPER:
devisee, or other
designation A. Death of party; duty of
5. amendment to the counsel (Sec. 16)
pleading when identity This provision applies where
or true name is the claim is not thereby
discovered extinguished as in cases
6. defendant is the involving property and
defendant being sued, property rights such as:
not a mere additional 1. recovery of real and personal
defendant property against the estate.
2. enforcement of liens on such
Service of summons upon a properties
defendant whose identity is 3. recovery for an injury to
unknown may be made by person or property by reason
of tort or delict committed by
publication in a newspaper of
the deceased.
general circulation in
accordance with Section 14 of
In this case, the heirs will be
Rule 14.
substituted for the deceased

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OR if no legal representative is The action shall continue to be

named then the court will prosecuted by or against him,
order the opposing party to personally or assisted by the
procure the appointment of an corresponding guardian.
executor or administrator for
the estate of the deceased. D. Transfer of interest (Sec.
19)
In case of minor heirs, the Substitution of parties in this
court may appoint a guardian section is NOT mandatory, it
ad litem for them. being permissible to continue
the action by or against the
The substitute defendant need original party in case of
not be summoned. The order transfer of interest pendente
of substitution shall be served lite. Unless the substitution by
upon the parties substituted or the joinder of the transferee
for the court to acquire is required by the court,
jurisdiction over the substitute failure to do so does not
party warrant the dismissal of the
case. A transferee pendente
lite is a proper, and not an
indispensable party.
The case will be dismissed if

If there is failure to notify the the interest of plaintiff is
fact of death: the case may transferred to defendant
continue and proceedings will UNLESS there are several
be held valid, and judgment plaintiffs, in which case, the
will bind the successors in remaining plaintiffs can
interest. proceed with their own cause
of action.
B. Death or separation of a
party who is a public officer Section 20. Action on
(Sec. 17) contractual money claims.
The action may be maintained Requisites:

by and against his successor. 1. The action must
primarily be for recovery
The action contemplated here of money, debt, or
is one brought against the interest thereon, and
public officer in his official not where the money
capacity. sought therein is merely
incidental thereto.
C. Supervening Incompetence
or incapacity of a party (Sec. 2. The claim, subject of the
18) action, arose from a
contract, express or

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implied, entered into by

the decedent in his VENUE JURISDICTION
lifetime or the liability
Place where the action Power of the court to
for which had been is instituted hear and decide a case
assumed by or is
imputable to him. May be waived Jurisdiction over the
subject matter and
over the nature of the
If defendant dies before entry action is conferred by
of final judgment in the court law and cannot be
waived
where it was pending at that
time, the action shall not be Procedural Substantive
dismissed but shall be allowed
May be changed by the Cannot be the subject
to continue until entry of final written agreement of of the agreement of
judgment thereon. the parties the parties
However, execution shall not The rule on VENUE IS NOT APPLICABLE

in cases
issue in favor of the winning
party. It should be filed as a 1) Where a specific rule or
claim against the estate of the law provides otherwise;
decedent. or
2) The parties have validly
Section 21. Indigent party. agreed in writing before
the filing of the action
Indigent – one who has no on the exclusive venue
property or income sufficient thereof (Sec. 4).
for his support aside from his
labor, even if he is self- Requisites for venue to be
supporting when able to work exclusive
and in employment. He need 1. A valid written
not be a pauper to entitle him agreement
to litigate in forma pauperis. 2. Executed by the parties
before the filing of the
While the authority to action; and
litigate as an indigent party 3. Exclusive nature of the
may be granted upon an ex venue.
parte application and hearing,
it may be contested by the In the absence of qualifying or
adverse party at any time restrictive words, venue
before judgment is rendered. stipulation is merely
permissive meaning that the
RULE 4 stipulated venue is in addition
VENUE OF ACTIONS to the venue provided for in
the rule (Polytrade Corp. vs.
VENUE – the place where an Blanco 30 SCRA 187)
action must be instituted and
tried.

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2. affirmative relief sought

Section 1. Venue of real in the court where the
actions. case is filed
3. voluntary submission to
If property is located at the the court where the
boundaries of two places: file case is filed
one case in either place at the 4. laches
option of the plaintiff.
Section 3. Venue of actions
If case involves two properties against non-residents.
located in two different places:
1. If the properties are the RULES
object of the same 1. NON-RESIDENT FOUND
transaction, file it in any IN THE PHIL. –
of the two places. a. for personal
2. If they are the subjects actions – where
of two distinct the plaintiff
transactions, separate resides; and
actions should be filed in b. for real actions –
each place unless where the
properly joined. property is
located.
Section 2. Venue of personal 2. NON RESIDENT NOT
actions. FOUND IN THE PHIL. –
RESIDENCE – the place where An action may be
the party actually resides with filed only when the case
continuity and consistency, involves:
whether permanent or a. Personal status of
temporary, at the time the plaintiff – venue:
action is instituted. where plaintiff
resides;
b. Any property of
said defendant
located in the Phil.
– venue: where
the property or
any portion
thereof is situated
or found.
The Supreme Court has the

power to order a change of
Means of waiving venue: venue to prevent a
1. failure to object via miscarriage of justice.
motion to dismiss

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Dismissal of Action for SUMMARY PROCEDURE IN

Improper Venue CIVIL CASES
The court may not motu
propio dismiss a complaint on
the ground of improper venue.
An exception is provided in
Section 4 of the Revised Rule
on Summary Procedure.
Filing of verified
complaint with the
MTC
court may court may

summon the dismiss the case
defendant outright
W/in 10 days If Defendant fails to

from receipt of answer in 10 days –
summons, The court, motu propio
defendant or on plaintiff’s
answers, motion, may render The Court should not dismiss
incoporating judgment based on the complaint or counterclaim
compulsory facts alleged in the
counterclaim or complaint w/o if they are not verified. The
crossclaim, and prejudice to requirement is merely a
serves a copy on R9, S3 (c)
plaintiff formal one, and not
jurisdictional. It should
therefore simply direct the
party concerned to have it
Answer to If plaintiff fails to verified.
counterclaim appear in prelim
and crossclaim conference, complaint
w/in 10 days may be dismissed. PROHIBITED PLEADINGS /
Defendant entitled to MOTIONS UNDER THE RULE
decision based on his
counterclaim. All ON SUMMARY PROCEDURE.
crossclaims dismissed.
Preliminary
1. Motion to dismiss the
conference w/in 30 complaint or to quash
days after last
answer is filed
the complaint or
information except on
If sole defendant the ground of lack of
fails to appear,
plaintiff entitled to jurisdiction over the
W/in 5 days after
conference, court
judgment based on subject matter or failure
complaint and
issues record of
preliminary what is proved to comply with prior
conference therein barangay conciliation
(referral to the Lupon)
2. Motion for a bill of
W/in 10 days from RULES ON particulars
receipt of order,
submission by the SUMMARY 3. Motion for a new trial or
parties of affidavits PROCEDURE for reconsideration of a
and position papers

Rendition of judgment
Charissimae
w/in 30 Jocelyn
Ventura, days from
Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
receipt
Special of last
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
affidavit, or w/in 15
days after last
clarificatory paper
22
judgment or for as may be warranted when

reopening of trial the defendant fails to file an
4. Petition for relief from answer.
judgment
5. Motion for extension of The issuance of the pre-trial
time to file pleadings, order is an important part of
affidavits, or any other the summary procedure
paper because it is its receipt by the
6. Memoranda parties that begins the ten-
7. Petition for certiorari, day period to submit the
mandamus, or affidavits and other evidence.
prohibition against any
interlocutory order
issued by the court TRIAL PROCEDURE IN CIVIL
8. Motion to declare CASES
defendant in default
9. Dilatory motions for No trial date is set. No
postponement testimonial evidence is
10. Reply required nor cross-
11. Third party examination of witnesses
complaints allowed. All that is required is
12. Interventions that within (10) days from
receipt by the parties of the
The filing of a prohibited court’s pre-trial order, they
pleading will not suspend the shall submit (1) the affidavits
period to file an answer or to of their witnesses (2) and
appeal. other evidence on the factual
issues set forth in the pre-trial
Although a motion to dismiss order, Together with their
is a prohibited pleading, its position papers setting forth
filing after the answer had the law and the facts relied
already been submitted does upon by them.
not constitute a pleading
prohibited by the summary Judgments of inferior courts in
rules. What the rules proscribe cases governed by summary
is a motion to dismiss that procedure are appealable to
would stop the running of the the RTC.
period to file an answer and
cause undue delay. The decision of the RTC in civil
cases under this rule,
While a motion to declare the including ejectment cases, are
defendant in default is IMMEDIATELY executory.
prohibited by the rules on
summary procedure, the KATARUNGANG PAMBARANGAY
plaintiff may nevertheless file LAW
a motion to render judgment (Title One, Book III, RA 7160)

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5. Where the dispute

No complaint, petition, action, involves real properties
or proceeding involving any located in different cities
matter within the authority of or municipalities
the lupon shall be filed or UNLESS the parties
instituted directly in court or thereto agree to submit
any other government office their differences to
for adjudication UNLESS amicable settlement by
1. there has been a an appropriate lupon;
confrontation between 6. Disputes involving
the parties before the parties who actually
lupon chairman or reside in barangays of
pangkat, AND different cities or
2. that no conciliation or municipalities, EXCEPT
settlement has been where such barangay
reached OR unless the units adjoin each other
settlement has been and the parties thereto
repudiated by the agree to submit their
parties thereto. differences to amicable
settlement by an
appropriate lupon;
7. Such other classes of
disputes which the
President may
CASES NOT COVERED BY THE determine in the interest
KATARUNGANG PAMBARANGAY of justice.
LAW:
However, the court may, at
1. Where one party is the any time before trial, motu
government or any proprio refer the case to the
subdivision or lupon concerned for amicable
instrumentality thereof; settlement, non criminal cases
2. Where one party is a not falling within the authority
public officer or of the latter.
employee, and the
dispute relates to the While the dispute is under
performance of his mediation, conciliation, or
official functions; arbitration, the prescriptive
3. Offenses punishable by periods for offenses and cause
imprisonment exceeding of action under existing laws
1 year or a fine shall be interrupted upon filing
exceeding P5,000.00; of the complaint with the
4. Offenses where there is punong barangay.
no private offended
party;

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or any government office for

adjudication.
THE PARTIES MAY GO RULES ON VENUE UNDER THE

DIRECTLY TO COURT IN THE KATARUNGANG PAMBARANGAY
FOLLOWING INSTANCES: LAW
1. Where the accused is 1. Disputes between residents of
under detention; the same barangay shall be
2. Where the person has brought for settlement before
otherwise been lupon of said barangay
deprived of personal 2. Residents of different
liberty calling for barangays within the same city
habeas corpus or municipality – in the
proceeding; barangay where the respondent
3. Where the actions are or any of the respondents
coupled with provisional reside at the election of the
remedies such as complainant
preliminary injunction, 3. Disputes involving real
attachment, delivery of property or any interest
personal property, and therein- where real property or
support pendente lite; larger portion thereof is
and situated
4. Where the action may
otherwise be barred by
the statute of
limitations.
The parties may, at any stage 4. Disputes arising at the

of the proceedings, agree in WORKPLACE where the
writing to have the matter in contending parties are
dispute decided by arbitration employed or at the
by either the Punong INSTITUTION where such
Barangay or Pangkat. In such parties are enrolled for study –
case, arbitrational hearings in the barangay where such
shall follow order of workplace or institution
adjudicative trials. located.
CHART ON KATARUNGANG
The settlement and arbitration
PAMBARANGAY, SEE PAGE 22.
agreement may be repudiated
on the ground that consent is
PROCEDURE IN REGIONAL
vitiated by fraud, violence, or
TRIAL COURTS
intimidation. Such repudiation
shall be sufficient basis for the
RULE 6
issuance of the certification
KINDS OF PLEADINGS
for filing a complaint in court
Section 1. Pleadings defined.

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PLEADINGS – the written ULTIMATE FACTS - essential

allegations of the parties of facts constituting the
their respective claims and plaintiff’s cause of action.
defenses submitted to the
court for appropriate What are NOT ultimate facts:
judgment. 1. Evidentiary or
immaterial facts.
A motion to dismiss is NOT a
pleading. 2. Legal conclusions,
It is the allegations or conclusions or
averments in the pleading inferences of facts from
that determines the facts not stated, or
jurisdiction of the court and incorrect inferences or
the nature of the action. conclusions from facts
stated.
PLEADING MOTION 3. The details of probative

matter or particulars of
It relates to the cause An application for an evidence, statements of
of action; interested order not included in
in the matters to be the judgment law, inferences and
included in the arguments.
judgment.
May be initiatory Cannot be initiatory as

4. An allegation that a contract is
they are always made valid or void is a mere conclusion
in a case already filed of law.
in court
TEST OF SUFFICIENCY: if upon
Always filed before May be filed even admission or proof of the facts
judgment after judgment
being alleged, a judgment
Section 3. Complaint. may be properly given. A fact
COMPLAINT – is a concise is essential if it cannot be
statement of the ultimate stricken out without leaving
facts constituting the the statement of the cause of
plaintiff’s cause or causes of action insufficient.
action, with
Section 4. Answer
ANSWER – the pleading where

the defendant sets forth his
affirmative or negative
a specification of the relief defenses.
sought, but it may add a
general prayer for such
further relief as may be
deemed just or equitable.

Charissimae
26
2 kinds of defenses that may be set

forth in the answer:
a. AFFIRMATIVE DEFENSES – allegation
of a new matter which while
hypothetically admitting the
material allegations in the pleading,
would nevertheless prevent or bar
recovery by him. It is in the nature
of Confession and Avoidance
b. NEGATIVE DEFENSES – specific
denial of the material facts or facts
alleged in the pleading
Insufficient denial or denial

amounting to admissions:
1. General denial
2. Denial in the form of a
negative pregnant
Section 6. Counterclaim
COUNTERCLAIM – any claim which a

defending party may have against an
opposing party.
Nature of counterclaim: A counterclaim

is in the nature of a cross-complaint.
Although it may be alleged in the
answer, it is not part of the answer.
Upon its filing, the same proceedings are
had as in the original complaint. For this
reason, it must be answered within ten
(10) days from service.
Section 7. Compulsory Counterclaim
RULES ON COUNTERCLAIM
A counterclaim before the MTC must be
within the jurisdiction of said court,
both as to the amount and nature
thereof (De Chua vs. IAC).

Charissimae
27
MEMORY
KATARUNGANG PAMBARANGAY AID IN
PROCEDURE REMEDIAL LAW
Filing of complaint
w/ the Punong
Barangay (PB)
W/in the next working day At any time during the
Proceedings…
Issuance of Parties agree to

summons to submit the
the parties dispute for
arbitration
and the
witnesses
Arbitration Hearings
Mediation (hearing)
Failure of Settlement
mediation
efforts
Execution Repudiati Award to be

Constitu- w/in 6 made after the
tion of the months from on of lapse of the
Pangkat date thereof arbitratio period to
n repudiate and
agreemen w/in 10 days
thereafter
Pangkat convenes not t within 5
later than 3 days days from
from its constitution
and summons the date of
Execution w/in
parties agreemen 6 months from
t the date of the
Pangkat must
award
arrive at a Conciliation DOCTRINE OF ANCILLARY
settlement
w/in 15 days
(hearing) JURISDICTION
from the day In an original action before
it convenes the RTC, the counterclaim
Repudiation of may be considered
Settlement settlement w/in 10 Note: Repudiation shall
days from date only be allowed on ground
thereof of vitiation of consent by
fraud, violence or
intimidation.
Execution w/in 6
months from the Failure of Conciliation
date of settlement ISSUANCE OF hearings at the Pangkat
CERTIFICATION FOR Level and of Arbitration
FILING OF A hearings shall also lead to
COMPLAINT IN COURT the issuance of
certification for filing a
compulsory complaint in court.

Charissimae
28
regardless of the amount (Sec. 7, Rule 6

).
If a counterclaim is filed in the MTC in

excess of its jurisdictional amount, the Section 8. Cross-claim
excess is considered waived (Agustin vs. CROSS-CLAIM – any claim by
Bacalan). In Calo vs. Ajax Int’l, the one party against a co-party
remedy where a counterclaim is beyond arising out of the transaction
the jurisdiction of the
or occurrence that is the
MTC is to set off the claims and file a subject matter either of the
separate action to collect the balance. original action or
counterclaim.
COMPULSORY PERMISSIVE
COUNTERCLAIM COUNTERCLAIM
If it is not set up in the action,
One which arises out It does not arise out of it is barred, except:
of or is necessarily nor is it necessarily 1. when it is outside the
connected with the connected with the
transaction or subject matter of the
jurisdiction of the court or;
occurrence that is the opposing party’s 2. if the court cannot acquire
subject matter of the claim. jurisdiction over third
opposing party’s
claim. parties whose presence is
necessary for the
It does not require for It may require for its adjudication of said cross-
its adjudication the adjudication the
presence of third presence of third
claim.
parties of whom the parties over whom the
court cannot acquire court cannot acquire In which case, the cross-claim
jurisdiction. jurisdiction.
is considered permissive.
It is barred if not set It is NOT barred even
up in the action. if not set up in the The dismissal of the complaint
action.
carries with it the dismissal of
Need not be Must be answered, a cross-claim which is purely
answered; no default. otherwise, the defensive, but not a cross-
defendant can be
declared in default.
claim seeking affirmative
relief.
GENERAL RULE: A compulsory
counterclaim not set up in the Cross Claim Counterclaim 3rd-party
answer is deemed barred. Complaint
EXCEPTION: If it is an after- Against a co- Against an Against a

party opposing party person not a
acquired counterclaim, that is, party to the
such claim matured after filing action
of the answer. In this case, it
may be pleaded by filing an
amended answer or a
supplemental answer or
pleading.

Charissimae
29
COMPLAINT INTERVENTION
Must arise out May arise out of Must be in
of the or be necessarily respect of Brings into the action Same
transaction connected with the a third person who
that is the the transaction opponent’s was not originally a
subject matter or that is the claim party.
of the orig. subject matter (Plaintiff)
action or of a of the opposing Initiative is with the Initiative is with a
counterclaim party’s claim, in person already a party non-party who seeks
therein. which case, it is to the action. to join the action.
called a
compulsory
counterclaim, or TESTS to determine whether
it may not, in the third-party complaint is in
which case it is
called a respect of plaintiff’s claim:
permissive 1. Where it arises out of
counterclaim. the same transaction on
which the plaintiff’s
Section 10. Reply. claim is based, or,
although arising out of
REPLY - the response of the another or different
plaintiff to the defendant’s transaction, is
answer. connected with the
plaintiff’s claim;
EFFECT OF FAILURE TO REPLY: 2. Whether the third-party
new facts that were alleged in defendant would be
the answer are deemed liable to the plaintiff or
controverted. Hence, the filing to the defendant for all
of the reply is optional except or part of the plaintiff’s
for the denial of the claim against the
genuineness and due original defendant; and
execution of an actionable 3. Whether the third-party
document used as defense in defendant may assert
the answer. any defenses which the
third-party plaintiff has
Section 11. Third (fourth, etc.) or may have to the
– party complaint. plaintiff’s claim.
THIRD (FOURTH,ETC.) – PARTY Leave of court to file a third-

COMPLAINT – a claim that a party complaint may be
defending party may, with obtained by motion under
leave of court, file against a Rule 15.
person not a party to the
action for contribution, Summons to new party (third,
indemnity, subrogation or any fourth, etc.) is needed for the
other relief, in respect of his court to obtain jurisdiction
opponent’s claim. over his person, since he is
not an original party.
THIRD-PARTY COMPLAINT IN

Charissimae
30
Where the trial court has pleading has not been

jurisdiction over the main served. It has no legal effect.
case, it also has jurisdiction
over the third party complaint, Section 4. Verification.
regardless of the amount
involved as a third party Pleadings need NOT be
complaint is merely auxiliary verified EXCEPT when
to and is a continuation of the otherwise provided by the law
main action (Republic v. or rules.
Central Surety & Insurance Co.
L-27802, Oct. 26, 1968). A verification must now be
based on personal knowledge
Section 12. Bringing new or based on authentic
parties. records.
Distinguished from 3rd-party

complaint: A 3rd-party
complaint is proper when not
one of the third-party Section 5. Certification against
defendants therein is a party forum shopping.
to the main action. But if one
or more of the defendants in a FORUM SHOPPING – the filing
counterclaim or cross-claim is of a two or more cases based
already a party to the action, on the same cause of action in
then the other necessary different courts for the
parties may be brought in purpose of obtaining a
under this section. favorable decision in either.
RULE 7 Test to determine the

PARTS OF A PLEADING presence of forum-shopping:
whether in the two (or more)
Section 3. Signature and cases pending, there is
address. identity of (a) parties, (b)
The signature of the counsel is rights or causes of action, and
a certification that: (c) reliefs sought.
1. That he has read the pleading;
2. There is good ground to The certificate is to be
support it; and executed by petitioner, and
3. It is not interposed for delay not by counsel.
Only the original copies must
be signed. Required ONLY for complaints
UNSIGNED PLEADING may be or initiatory pleadings.
stricken out as sham and
false, and the action may Certificate of non-forum
proceed as though the shopping is not required in a

Charissimae
31
compulsory counterclaim (UST be specifically averred by the

Hosp. vs. Surla). party suing or being sued, and
specifically denied by the
EFFECT OF FAILURE TO party questioning such
COMPLY: capacity.
1. Not curable by amendment of
said pleading Capacity is challenged
2. shall be cause for the dismissal by specific denial, motion to
of the case, without prejudice, dismiss or bill of particulars.
unless otherwise provided,
upon motion and after hearing Section 5. Fraud, mistake,
condition of the condition
EFFECT OF SUBMISSION OF FALSE
CERTIFICATION OR NON-COMPLIANCE
FACTS THAT MAY BE AVERRED
WITH THE UNDERTAKINGS THEREIN:
1. indirect contempt GENERALLY:
2. administrative and criminal 1. Conditions precedent
actions (BUT there must still be
an allegation that the
EFFECT OF WILFULL AND specific condition
DELIBERATE FORUM SHOPPING: precedent has been
1. shall be ground for summary complied with,
dismissal of the case with otherwise, it will be
prejudice; dismissed for failure to
2. direct contempt. state a cause of action)
2. Malice, intent,
RULE 8 knowledge, or other
MANNER OF MAKING condition of the mind
ALLEGATIONS IN A PLEADING 3. Judgments of domestic
or foreign courts,
Pleadings should state tribunals, boards, or
ultimate facts essential to the officers (no need to
right of action. show jurisdiction)
4. Official document or act
ULTIMATE FACTS: those which
directly form the bases of the FACTS THAT MUST BE
right sought to be enforced or AVERRED PARTICULARLY:
the defense relied upon. 1. Circumstances showing
If the ultimate facts are NOT fraud or mistake in all
alleged, the cause of action averments of fraud or
would be insufficient. mistake
2. Capacity
Section 4. Capacity.
ACTIONABLE DOCUMENT –
Capacity to sue and be written instrument upon which
sued either personally or in the action or defense is based.
representative capacity must

Charissimae
32
2. The document need not

be formally offered in
evidence.
GENUINENESS
That the document is not
Two permissible ways of spurious, counterfeit, or of
pleading an actionable different import on its face
document: from the one executed by the
1. By setting forth the party, or that the party whose
substance of such signature it bears has signed
document in the it and that at the time it was
pleading and attaching signed it was in words and
said document thereto figures exactly as set out in
as an annex (contents of the pleadings.
the document annexed
are controlling, in case DUE EXECUTION
of variance in the That the document was signed
substance of the voluntarily and knowingly by
document set forth in the party whose signature
the pleading and in the appears thereon.
document attached); or
2. By setting forth said Defenses that the opposing
document verbatim in party may set up even after
the pleading. failure to deny under oath:
1. Mistake;
Where the actionable 2. fraud;
document is properly alleged, 3. compromise;
the failure to specifically deny 4. payment;
under oath the same results 5. prescription;
in: 6. want or illegality of
1. The admission of the consideration; or
genuineness and due 7. estoppel
execution of said
document, EXCEPT that BUT the following defenses
an oath is not required: are waived:
a. When the adverse a. forgery in the signature;
party was not a party b. want of authority of an
to the instrument; agent or corporation;
and c. want of delivery; or
b. When an order for d. the party charged
the inspection of the signed the instrument in
original document some other capacity
was not complied
with. Section 10. Specific Denial

Charissimae
33
THREE WAYS OF MAKING A deemed admitted (such as

SPECIFIC DENIAL: allegations of usury in the
1. By specifically denying complaint, and the
each material allegation authenticity and due
of the other party and, execution of actionable
whenever possible, documents).
setting forth the EXCEPTIONS:
substance of the 1. Allegations as to the
matters relied upon for amount of unliquidated
such denial; damages
2. Part admission or part 2. Immaterial allegations;
denial; 3. Incorrect conclusions of
3. By an allegation of lack fact.
of knowledge or
information sufficient to RULE 9
form a belief as to the EFFECT OF FAILURE
truth of the averment in TO PLEAD
the opposing party’s
pleading (must be made Section 1. Defenses and
in good faith). objections not pleaded.
GENERAL RULE: Defenses and
A denial must not be general. objections that are not
A general denial is regarded pleaded in a MOTION TO
as an admission of the facts DISMISS or in the answer are
stated in the complaint and deemed waived.
entitles plaintiff to a judgment EXCEPTIONS (not waived even
on the pleadings. if not raised):
1. Lack of jurisdiction over
NEGATIVE PREGNANT – a form the subject matter
of denial which at the same 2. Litis pendentia
time involves an affirmative 3. Res judicata
implication favorable to the 4. Prescription of the
opposing party; It is in effect, action
an admission of the averment
to which it is directed; It is These defenses may be raised
said to be a denial pregnant at any stage of the
with an admission of the proceedings even for the first
substantial facts in the time on appeal EXCEPT that
pleading responded to. lack of jurisdiction over the
subject matter may be barred
Section 11. Allegation not by laches. (Tijam vs.
specifically denied deemed Sibonghanoy).
admitted.
The presence of these
GENERAL RULE: Allegations grounds authorizes the court
NOT specifically denied to motu proprio dismiss the

Charissimae
34
claims. These grounds must, to answer within the

however, appear from the proper period.
pleadings or the evidence on
record. CAUSES OF DEFAULT
1. Failure to answer within the
Section 3. proper period
2. Non-compliance with the
DEFAULT – the failure of the order of the court to file a bill
defendant to answer within of particulars or in case of
the proper period. It is not his insufficient compliance
failure to appear nor failure to therewith (Rule 12, Section 4)
3. Refusal to comply with the
present evidence.
modes of discovery (Rule 29,
Section 3, par. c)
ORDER OF JUDGMENT BY
4. Failure to furnish plaintiff with
DEFAULT DEFAULT a copy of the answer
issued by the court, Rendered by the court
on plaintiff’s motion following a default If the defendant was declared in default
for failure of the order or after it upon an original complaint, the filing of
defendant to file his received, ex parte, the amended complaint resulted in the
responsive pleading plaintiff’s evidence. withdrawal of the original complaint,
seasonably. hence, the defendant was entitled to
Interlocutory - not Final – appealable file answer to the amended complaint as
appealable to which he was not in default.
NO default may be declared in EFFECT OF ORDER OF

the following actions: DEFAULT:
1. Annulment of marriage 1. While the party in
2. Declaration of nullity of default cannot take part
marriage in the trial, he is
3. Legal Separation nonetheless entitled to
4. Special civil actions of notice of subsequent
certiorari, prohibition and proceedings.
mandamus where comment 2. He may still be called on
instead of an answer is as a witness, in behalf of
required to be filed the non-defaulting
defendants.
The court cannot motu proprio
declare a defendant in default.
For defendant to be declared
in default, the plaintiff must:
1. File a MOTION to declare
defendant in default
2. Prove that summons
have been properly
served on the defendant
3. Prove that the
defendant really failed

Charissimae
35
DEFAULT 2. some of the defending parties

answer and the others fail to
After the
lapse of time do so
to file an
Motion denied:
3. the answer interposes a
answer, the
plaintiff may Defendant common defense
move to allowed to file an
declare the answer
EFFECT OF PARTIAL DEFAULT: The
defendant in
default court will try the case against ALL
defendants upon the answer of some
Defendant
EXCEPT where the defense is personal to
answers the one who answered, in which case, it
will not benefit those who did not
Motion granted:
Court issues order answer.
of default and
renders judgment, REMEDY FROM JUDGMENT BY
or require plaintiff
to submit evidence DEFAULT (FLOW CHART)
ex parte.
Judgment by default
Court
maintains
Before judgment order of Motion for new trial or reconsideration at
by default is default any time after service of judgment by
rendered, default and within 15 (30) days therefrom
defendant may:
move to set aside
order of default
upon showing:
FAME Failure to file motion for new trial/
He has a Denial of said motion
meritorious
defense
Avail of Rule 65 in
proper cases Perfect appeal from said judgment by
default within the balance of said
15 (30) - day period
Presentation
of plaintiff’s
evidence ex-
Court sets aside Failure to appeal without
parte defendant’s faulk
order of default and
defendant is allowed
to file an answer
If plaintiff If plaintiff Petition for relief from judgment within

proves his fails to prove 60 days from notice of the judgment but
allegations, his allega- within 6 months from entry thereof
judgment by tions, case is
Case set for default. dismissed.
pre-trial
PARTIAL DEFAULT: Annulment of Judgment

under Rule 47
1. The pleading asserting a claim
states a common cause of EXTENT OF RELIEF TO BE
action against several AWARDED IN A JUDGMENT BY
defending parties DEFAULT:
Shall not exceed the amount
OR be different in kind from

Charissimae
36
that prayed for NOR award order of dismissal becomes

unliquidated damages. final.
Section 3. Amendments by
RULE 10 leave of court.
AMENDED AND
SUPPLEMENTAL PLEADINGS Instances when amendment
by leave of court may not be
AMENDMENTS allowed:
Section 1. Amendments in 1. When cause of action,
general. defense or theory of the
case is changed;
When the complaint is 2. Amendment is intended
amended, 2 situations may to confer jurisdiction to
arise: the court;
1. If the complaint merely 3. Amendment to cure a
corrects or modifies the premature or non-
original complaint, then existing cause of action;
the action is deemed 4. Amendment for
commenced upon the purposes of delay.
filing of the original Section 5. Amendment to
complaint; conform to or authorize
2. If the amended presentation of evidence.
complaint alleges a new
cause of action, then 1ST PART: refers to
that cause of action is amendment to conform to
deemed commenced evidence when issues NOT
upon the filing of the raised by the pleadings are
amended complaint. tried with the express or
implied consent of the parties
Section 2. Amendments as a - but failure to amend does
matter of right. NOT affect the result of the
trial of these issues
Amendment for the first time
is a matter of right before a 2ND PART: refers to
responsive pleading is filed, or amendment to authorize
in case of a Reply, within 10 presentation of evidence if
days after it was served. evidence is objected to at the
trial on the ground that it is
Since a motion to dismiss is not within the issues made by
NOT a responsive pleading, an the pleadings.
amendment may be had even
if an order of dismissal has SUPPLEMENTAL PLEADINGS
been issued as long as the A cause of action which
amendment is made before accrued after the filing of the
original complaint may, in the

Charissimae
37
discretion of the court, be incorporated or

pleaded in a supplemental reiterated in the
complaint if there was a valid amended pleading are
subsisting cause of action at deemed waived.
the time the original
complaint was filed. The amended or superseded,
original pleading is not
expunged but remains on the
AMENDED SUPPLEMENTAL record although the admission
PLEADING PLEADING of the amended pleading
amounts to withdrawal of the
Refers to facts Refers to facts arising original pleading.
existing at the time of after the filing of the
the commencement original pleading.
of the action. RULE 11
WHEN TO FILE RESPONSIVE
Take the place of the Taken together with
original pleading. the original pleading. PLEADINGS
Can be made as a Always with leave of Answer to the complaint

matter of right as court
when no responsive 1. Within 15 days after service of
pleading has yet been summons, UNLESS a different
filed period is fixed by the Court (Sec.
1)
Section 7. Filing of amended pleadings.
2. In case the defendant is a foreign
The amended pleading
private juridical entity:
supersedes the original
a. if it has a resident agent –
pleading.
within 15 days after
service of summons to him
An amendment which merely
b. if it has no resident agent,
supplements and amplifies but it has an agent or
facts originally alleged in the officer in the Philippines –
complaint relates back to the within 15 days after
date of the commencement of service of summons to said
the action and is not barred by agent or officer
the statute of limitations c. if it has no resident agent
which expired after service of nor agent nor officer – in
the original complaint. which case service of
EFFECT OF AMENDED summons is to be made on
PLEADING: the proper government
1. Admissions in the office which will then send
superseded pleading a copy by registered mail
can still be received in to the home office of the
evidence against the foreign private corporation
pleader; – within 30 days after
2. Claims or defenses receipt of summons by the
alleged therein but not

Charissimae
38
home office of the foreign The third-party defendant is

private entity. served with summons just like
the original defendant, hence,
3. In case of service of summons by he also has 15, 30, 60 days
publication – within the time from service of summons, as
specified in the order granting the case may be, to file his
leave to serve summons by answer.
publication, which shall NOT be
less than 60 days after notice Section 7. Answer to
(Rule 14, Sec.15). supplemental complaint.
Leave of court is required in
4. In case of a non-resident filing, the court may fix a
defendant on whom extraterritorial different period for answering
service of summons is made, the the supplemental complaint in
period to answer should be at least lieu of the reglementary 10-
60 days. day period.
The court may extend the time to file
Section 10. Omitted
the pleadings BUT may NOT shorten
them. counterclaim or cross-claim.
The pleader may set up a
The 15-day period begins to counterclaim or cross-claim by
run from receipt of summons. amendment before judgment
when he fails to set it up by
reason of oversight,
Section 3. Answer to amended inadvertence, or excusable
complaint. neglect ort when justice
1. If the filing of an amended requires. Leave of court is
complaint is a matter of right - necessary.
within 15 days from service of
the amended complaint. RULE 12
2. If the filing of the amended BILL OF PARTICULARS
complaint is NOT a matter of
right – within 10 days counted BILL OF PARTICULARS- a more
from notice of the court order definite statement of any
admitting the same. matter which appears vague
or obscure in a pleading.
If no new answer is filed by the
defendant in case an amendment has
been made after he had filed his answer, PURPOSE: to aid in the
the original answer of the defendant preparation of a responsive
may serve as the answer to the amended pleading.
complaint, and hence, cannot be
declared in default.
Motion for bill of particulars
Section 5. Answer to third must be filed within the
(fourth, etc.)-party complaint. reglementary period for the
filing of a responsive pleading.
The filing of a motion if

Charissimae
39
sufficient in form and which the order is

substance, will interrupt the directed; or
time to plead. b. make such order as it
may deem just.
The motion for bill of
particulars may be granted in 2. If plaintiff, his compliant will
whole or in part as not all the be stricken off and dismissed
allegations questioned by the (Rule 12, sec. 4; Rule 17, sec.
movant are necessarily 3)
ambiguous as to require
clarification. 3. If defendant, his answer will
be stricken off and his
A bill of particulars may be counterclaim dismissed, and
filed either in a separate or an he will be declared in default
amended pleading. upon motion of the plaintiff
A bill of particulars becomes (Rule 12, sec. 4; Rule 17, sec.
part of the pleading which it 4; Rule 9, sec. 3).
supplements.
EFFECTS OF MOTION RULE 13

1. If the motion is granted, the FILING AND SERVICE OF
movant can wait until the bill PLEADINGS, JUDGMENTS AND
of particulars is served on him OTHER PAPERS
by the opposing party and then
he will have the balance of the Notice given to a party who is
reglementary period within duly represented by counsel is
which to file his responsive a nullity, unless service
pleading. thereof on the party himself
was ordered by the court or
2. If his motion is denied, he will the technical defect was
still have such balance of the waived.
reglementary period to do so,
counted from service of the
order denying his motion. In Section 3. Manner of filing.
either case, he will have at 1. Personally
least 5 days to file his 2. by registered mail
responsive pleading.
Filing by mail should be
Effect of non-compliance: through the registry service
1. If the Order is not obeyed or in which is made by deposit of
case of insufficient compliance the pleading in the post office,
therewith, the court: and not through other means
a. may order the striking of transmission.
out of the pleading or
the portion thereof to If registry service is not
available in the locality of

Charissimae
40
either sender or addressee, If no registry service is

service may be done by available in the locality, of
ordinary mail. either sender or addressee,
service may be done by
If a private carrier is availed of ordinary mail.
by the party, the date of
actual receipt by the court of 3. substituted service
such pleading and not the Delivering the copy to the
date of delivery to the carrier, clerk of court with proof of
is deemed to be the date of failure of both personal and
the filing of that pleading. service by mail.
NOTE: PERSONAL and JUDGMENTS, FINAL ORDERS,

SUBSTITUTED service as RESOLUTIONS (Sec.9)
applied to pleadings have a 1. By personal service; or
different meaning compared 2. By registered mail;
to summons under Rule 14. 3. By publication, if party is
summoned by
publication and has
failed to appear in the
action.
MODES OF SERVICE They can be served only

PLEADINGS under the three modes.
1. personal service
a. Delivering personally a They CANNOT be served by
copy to the party or his substituted service.
counsel or;
b. Leaving a copy in NOTE: A resort to modes other
counsel’s office with his than by personal service must
clerk or with a person be accompanied by a written
having charge thereof explanation why the service or
or; filing was not done personally
c. Leaving the copy (Sec. 11).
between 8 a.m. and 6
p.m. at the party’s or Section 10. Completeness of
counsel’s residence, if service.
known, with a person of
sufficient age and 1. Personal service
discretion residing a. by handling a copy to
therein---if no person defendant; or
found in his office, or if b. tendering him copy if he
his office is unknown, or refuses;
if he has no office. c. complete upon actual
delivery
2. service by mail

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41
2. Service by ordinary mail:

Complete upon
expiration of 10 days 3. Proof of service by
after mailing, unless the registered mail:
court provides a. Affidavit, and
otherwise. b. Registry receipt issued
by the mailing office.
3. Service by registered mail:
a. Complete upon actual Section 14. Notice of lis
receipt by the pendens.
addressee; or
b. After 5 days from the LIS PENDENS - a notice of a
date he received the 1st pendency of the action
notice of the between the parties involving
postmaster, whichever title to or right of possession
date is earlier. over real property.
Section 12. Proof of filing. It serves as a warning to all

Filing is proved by its persons, prospective
existence in the record of the purchasers or encumbrancers
case. of the property in litigation to
keep their hands off the
If it is not in the record, and: property in litigation unless
If filed personally: proved by they are prepared to gamble
the written or stamped on the result of the
acknowledgment of its filing proceedings.
by the clerk of court on a copy
of the same; or The defendant may also
record a notice of lis pendens
 If filed by registered mail: when he claims an affirmative
proved by -the registry receipt relief in his answer.
and the affidavit of the person
who did the mailing. Notice of lis pendens CANNOT
be cancelled on an ex parte
Section 13. Proof of service motion or upon the mere filing
1. Proof of personal service: of a bond by the party on
a. Written admission of the whose title the notice is
party served; or annotated, as section 14
b. Official return of the provides that such
server; or cancellation may be
c. Affidavit of the party authorized ONLY upon order of
serving. court, after proper showing
that:
2. Proof of service by ordinary 1. The notice is for the
mail: Affidavit of the person purpose of molesting
mailing; the adverse party; or

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42
2. It is not necessary to deemed withdrawn upon such

protect the rights of the amendment.
party who caused it to
be recorded.
RULE 14 Section 3. By whom served.

SUMMONS Summons may be served by:
1. Sheriff
PURPOSE OF SUMMONS: 2. Sheriff’s deputy, or
1. to acquire jurisdiction 3. Other proper court
over the person of the officers, or
defendant, and; 4. For justifiable reasons,
2. to give notice to the by any suitable person
defendant that an action authorized by the court
has been commenced issuing the summons.
against him.
Enumeration is EXCLUSIVE.
EFFECT OF NON-SERVICE:
Unless there is waiver, non- ALIAS SUMMONS – issued
service or irregular service when original has not
renders null and void all produced its effect because it
subsequent proceedings and is defective in form or manner
issuances in the action from of service, and when issued,
the order of default up to and supersedes the first (Section
including the judgment by 5).
default and the order of
execution. KINDS OF SERVICE OF
SUMMONS:
Where the defendant has 1. personal service
already been served with 2. substituted service
summons on the original 3. by publication
complaint, no further
summons is required on the In actions in personam where the
amended complaint if it does defendant cannot be served with
summons personally or by substituted
not introduce new causes of service, the case must first be converted
action. into an in rem or quasi in rem action by
attaching the property of the defendant
But where the defendant was found in the Philippines before summons
declared in default on the can be served by publication. If no
property can be found, the action shall
original complaint and the be archived but shall not be dismissed.
plaintiff subsequently filed an (Citizens Surety vs. Court Appeals)
amended complaint, new
summons must be served on SERVICE OF SUMMONS ON
the defendant on the DIFFERENT ENTITIES
amended complaint, as the
original complaint was

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43
head, or on such other

Service on entity Upon any or all officer or officers as the
w/o juridical defendants being sued law or the court may
personality under common name; or direct.
person in charge of office
Extraterritorial Requisites
Service upon In case of minors: by service a. defendant does
minors and serving upon the minor, not reside or is
incompetents regardless of age, AND not found within
upon his legal guardian, or the Phil.
also upon either of his b. he action either:
parents.  affects the
In case of incompetents: personal status of
by serving on him plaintiff;
personally AND upon his  relates to or the
legal guardian, but not subject of which is
upon his parents, unless property within the
when they are his legal Philippines in
guardians which defendant
IN ANY EVENT, if the has a lien or
minor or incompetent has interest;
no legal guardian, the
 demands a relief
plaintiff must obtain the which consists
appointment of a guardian wholly or in part in
ad litem for him. excluding the
defendant from
Service upon Serve on officer having any interest in any
prisoner management of the jail or property within the
prison Phil; or
 property of
defendant has
Service upon To the president, been attached in
domestic private managing partner, general the Phil.
juridical entity manager, corporate
ENTITY secretary, treasurer, or Mode of service
in-house counsel. a. with leave of court
NOTE: Service upon a served outside the
person other than those Phil. By personal
mentioned is invalid and service; or
does not bind the b.with leave of court
corporation. The serve by publication
enumeration is in a newspaper of
EXCLUSIVE. general circulation,
in which case copy of
Service upon Serve on resident agent ; the summons and
foreign private or if none; on gov’t order of court must
juridical entity official designated by law; also be sent by
or registered mail to
on any officer or agent of the last known
the corporation within the address of
Philippines. defendant; or
c. any other manner the
Service upon in case defendant is the court deem
public Republic of the Philippines sufficient.
corporations - by serving upon the
Solicitor General
in case of a province, city Service upon a Substituted service or
or municipality, or like resident with leave of court,
public corporations – by temporarily out of personal service out of
serving on its executive the Phil. the Phil. as under

Charissimae
44
extraterritorial service generally presented is not

Service upon an With leave of court, by
debatable.
unknown publication in a
defendant or newspaper of general b. motion of course – where
whose circulatiuon
whereabouts are
the movant is entitled to
unknown the relief or remedy sought
as a matter of discretion on
Section 20. Voluntary appearance. the part of the court.
Any form of appearance in c. litigated motion – one

court, by the defendant, by his made with notice to the
agent authorized to do so, or adverse party to give an
by attorney, is equivalent to opportunity to oppose.
service of summons EXCEPT
where such appearance is d. speciaL motion- motion
precisely to object to the addressed to the discretion
jurisdiction of the court over of the court.
the person of the defendant.
GENERAL RULE: A motion
Inclusion in a motion to cannot pray for judgment.
dismiss of other grounds aside EXCEPTIONS:
from lack of jurisdiction over 1. Motion for judgment on
the person of the defendant the pleadings
shall NOT be deemed a 2. Motion for summary
voluntary appearance. judgment
3. Motion for judgment on
RULE 15 demurrer to evidence.
MOTIONS
Section 4. Hearing on motion.
3-day notice rule
MOTION – is an application for GENERAL RULE: Service of the
relief other than by a copy of motions should be
pleading. made in such a manner as
shall ensure its receipt at least
GENERAL RULE: Motions must 3 days before the hearing.
be in writing. EXCEPTIONS:
EXCEPTION: Those made in 1. Ex parte motions
open court or in the course of 2. Urgent motions
hearing or trial. 3. Motions agreed upon by
the parties to be heard
KINDS OF MOTIONS on shorter notice or
jointly submitted by the
a. motion ex parte- made parties, and
without the presence or a 4. Motions for summary
notification to the other judgment which must be
party because the question

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45
served at least 10 days Section 1. Grounds.

before its hearing 1. No jurisdiction over the
5. Non-litigated motions. person of the defending
party
Section 5. Notice of hearing. 2. No jurisdiction over the
NOTICE OF HEARING shall: subject matter of the
1. Be addressed to all claim
parties concerned 3. Improper venue
2. Specify the time and 4. No legal capacity to sue
date of the hearing 5. Litis pendentia
which must not be later 6. Res judicata
than 10 days after the 7. Prescription
filing of the motion 8. States no cause of
action
NOTE: Any motion that does
not comply with Sections 4, 5 9. Claim or demand has
and 6 of this Rule is a mere been paid, waived,
scrap of paper, should not be abandoned, or otherwise
accepted for filing and, if filed, extinguished
is not entitled to judicial 10. Claim is
cognizance and does not unenforceable under the
affect any reglementary Statute of Frauds
period involved for the filing of 11. Non-compliance
the requisite pleading. with a condition
precedent for filing
Omnibus Motion Rule - All claim
available grounds for objection
in attacking a pleading, order,
judgment, or proceeding MOTION TO DISMISS MOTION TO DISMISS
should be invoked at one time, UNDER RULE 16 UNDER RULE 33
otherwise, they shall be (demurrer to
deemed waived. evidence)
Motion for leave to file a Grounded on based on insufficiency

preliminary of evidence.
pleading or motion shall be objections.
accompanied by the pleading
or motion sought to be may be filed by any May be filed only by
defending party the defendant against
admitted, otherwise, the latter against whom a claim the complaint of the
will be denied. is asserted in the plaintiff.
action.
RULE 16 should be filed within May be filed only after
MOTION TO DISMISS the time for but prior the plaintiff has
to the filing of the completed the
answer of the presentation of his
A Motion to Dismiss is NOT a defending party to the evidence.
responsive pleading. pleading asserting the
claim against him.

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46
which party is
If denied, defendant If denied, defendant
answers, or else he may present evidence
successful
may be declared in if granted, plaintiff
default appeals and the Order Motion to dismiss may be filed
If granted, plaintiff of the dismissal is
may appeal or if reversed, the
in either suit, not necessarily
subsequent case is not defendant loses his in the one instituted first.
barred, he may re-file right to present
the case evidence.
REQUISITES OF RES JUDICATA
1. Previous final judgment
Effect of motion to dismiss: A
2. Jurisdiction over the
motion to dismiss
subject matter and the
hypothetically admits the
parties by the court
truth of the facts alleged in
rendering it
the complaint.
3. Judgment upon the
merits
However, such admission is
4. In a case prosecuted
limited only to all material and
between same parties
relevant facts which are well
5. Involving the same
pleaded in the complaint.
subject matter
6. Same cause of action
An action cannot be dismissed
on a ground not alleged in the
There could be res judicata
motion even if said ground is
without a trial, such as in a
provided for in Rule 16.
judgment on the pleadings
(Rule 34); a summary
EXCEPT:
judgment (Rule 35); or an
1. Those cases where the
order of dismissal under
court may dismiss a
Section 3 of Rule 17.
case motu proprio (Sec.
1, Rule 9)
When the ground for dismissal
2. Such ground appears in
is that the complaint states no
the allegations of the
cause of action, such fact can
complaint or in plaintiff’s
be determined only from the
evidence
facts alleged in the
complaint.
REQUISITES OF LITIS
PENDENTIA
Where the plaintiff has not
1. Parties to the action are
exhausted all administrative
the same
remedies, the complaint not
2. There is substantial
having alleged the fact of such
identity in the cause of
exhaustion, the same may be
action and relief sought
dismissed for failure to state a
3. The result of the first
cause of action.
action is determinative
of the second in any
Non-compliance with P.D.
event and regardless of
1508 (Katarungang

Charissimae
47
Pambarangay Law) may result Defendant is granted only the

to dismissal of the case on the balance of the reglementary
ground of non-compliance period to which he was
with a condition precedent. entitled at the time he filed his
motion to dismiss, counted
An action cannot be dismissed from his receipt of the denial
on the ground that the order, but not less than 5 days
complaint is vague or in any event.
indefinite. The remedy of the
defendant is to move for a bill The same rule of granting only
of particulars or avail of the the balance of the period is
proper mode of discovery. followed where the court,
instead of denying the motion
GENERAL TYPES OF A MOTION to dismiss, orders the
TO DISMISS amendment of the pleading
1. motion to dismiss before challenged by the motion, in
answer under Rule 16 which case, the balance of the
2. motion to dismiss under period to answer runs from his
Rule 17 receipt of the amended
a. upon notice by plaintiff pleading.
b. upon motion of plaintiff
c. due to fault of plaintiff
3. motion to dismiss on
demurrer to evidence Section 5. Effect of dismissal
after plaintiff has rested GENERAL RULE: The action or
his case under Rule 33 claim may be refiled.
4. motion to dismiss the EXCEPTION: The action cannot
appeal filed either in the be refiled if it was dismissed
lower court (Rule 41,Sec. on any of these grounds:
13) or in the appellate 1. Res judicata;
court (Rule 50, Sec.1 ). 2. Prescription;
3. Extinguishment of the
claim
EFFECTS OF REMEDY or demand;
ACTION ON MTD 4. Unenforceability
Order granting motion Appeal from the order under the
to dismiss is final of dismissal
order
Statute of Frauds.
Order denying the Certiorari and
motion to dismiss is prohibition if there is Section 6. Pleading grounds as
interlocutory grave abuse of affirmative defenses.
discretion amounting
to lack or excess of If no motion to dismiss had
jurisdiction under Rule been filed, any of the grounds
65 for dismissal provided for in
Rule 16, INCLUDING IMPROPER
Section 4. Time to plead. VENUE, may be pleaded as
affirmative defenses and

Charissimae
48
preliminarily heard in the Section 2. Dismissal upon

discretion of the court. motion of plaintiff.
Dismissal under this section – Where the plaintiff moves for

WITHOUT prejudice to the the dismissal of his complaint
prosecution in the same or to which a counterclaim has
separate action of a been interposed, the dismissal
COUNTERCLAIM pleaded in the shall be limited to the
answer complaint.
RULE 17 Such dismissal shall be

DISMISSAL OF ACTIONS without prejudice to the right
of the defendant to either:
Section 1. Dismissal upon 1. Prosecute his
notice by plaintiff. counterclaim in a
separate action,
Dismissal is effected not by
motion but by mere NOTICE of In this case, the court
dismissal which is a matter of should render the
right BEFORE the defendant corresponding order
has answered or moved for a granting and reserving
summary judgment. his right to prosecute his
claim in a separate
But notice of dismissal complaint.
requires an order of the court
confirming the dismissal. -OR-
Such dismissal is WITHOUT
PREJUDICE, 2. To have the same
EXCEPT: resolved in the same
1. Where the notice of action.
dismissal so provides;
2. Where the plaintiff has In such case, defendant
previously dismissed the must manifest such
same case in a court of preference to the trial
competent jurisdiction court within 15 days
(two-dismissal rule); from notice to him of
3. Even where the notice of plaintiff’s motion to
dismissal does not dismiss.
provide that it is with
prejudice but it is These alternative remedies of
premised on the fact of the defendant are available to
payment by the him REGARDLESS OF
defendant of the claim WHETHER HIS COUNTERCLAIM
involved. IS COMPULSORY OR
PERMISSIVE.

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49
Dismissal under this rule is PREJUDICE), unless otherwise

WITHOUT PREJUDICE, EXCEPT: declared by the court.
1. When otherwise stated
in the motion to dismiss;
2. When stated to be with
prejudice in the order of SECTION 2 SECTION 3
the court.
Dismissal is at the Dismissal is not
instance of the procured by plaintiff
The approval of the court is plaintiff; though justified by
necessary in the dismissal or causes imputable to
him;
compromise of a class suit.
Dismissal is a matter Dismissal is a matter
Section 3. Dismissal due to of procedure, without of evidence, an
fault of plaintiff. prejudice unless adjudication on the
otherwise stated in merits;
the order of the court
CAUSES FOR DISMISSAL or on plaintiff’s
1. Plaintiff fails to appear motion to dismiss his
own complaint;
for no justifiable cause
on the date of the Dismissal is without Dismissal is without
presentation of his prejudice to the right prejudice to the right
of the defendant to of the defendant to
evidence in chief on the prosecute his prosecute his
complaint counterclaim in a counterclaim on the
2. Plaintiff fails to separate action unless same or separate
w/in 15 days from action.
prosecute his action for notice of the motion
an unreasonable length he manifests his
of time (nolle prosequi) intention to have his
counterclaim resolved
3. Plaintiff fails to comply in the same action
with these Rules or any
order of the court.
Unjustifiable inaction on
the part of plaintiff to
have the case set for RULE 18
trial is a ground for PRE-TRIAL
dismissal for failure to
prosecute. PRE-TRIAL- a mandatory
conference and personal
Complaint may be dismissed confrontation before the judge
1. Upon motion of the between the parties and their
defendant, or respective counsel.
2. Upon court’s own
motion. The plaintiff must promptly
move ex parte that the case
Dismissal shall have the effect be set for pre-trial , and this
of an ADJUDICATION UPON he must do upon the service
THE MERITS (WITH and filing of the last pleading.

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The pre-trial and trial on the EFFECT OF NON-APPEARANCE

merits of the case must be OF PLAINTIFF:
held on separate dates. Cause for dismissal of the
action, with prejudice, unless
When non-appearance of a otherwise ordered by the
party may be excused (Sec.4): court.
1. If a valid cause is shown
therefore EFFECT OF NON-APPEARANCE
2. If a representative shall OF DEFENDANT:
appear in his behalf fully Cause to allow the plaintiff to
authorized in writing to: present evidence ex parte and
a. Enter into an the court to render judgment
amicable settlement on the basis thereof.
b. Submit to alternative
modes of dispute Pre-trial brief. It is the
resolution mandatory duty of the parties
c. Enter into stipulations to seasonably file their pre-
or admissions of facts trial briefs under the
and of documents conditions and with the
sanctions provided therein.
A special authority for an
attorney to compromise is Failure to file pre-trial brief has
required under Sec. 23, Rule the same effect as failure to
138. Under Art. 1878 (c) of the appear at the pre-trial.
Civil Code, a special power of
attorney is required. Record of pre-trial. The
contents of the PRE-TRIAL
order shall control the
subsequent course of the
action, UNLESS modified
before trial to prevent
manifest injustice.
A party is deemed to have

waived the delimitations in a
pre-trial order if he failed to
object to the introduction of
evidence on an issue outside
of the pre-trial order, as well
as in cross-examining the
witness in regard to said
evidence.
FOR CHART ON PRE-TRIAL PLS.

SEE THE NEXT PAGE.

Charissimae
51
1. One who has legal

interest in the matter in
litigation
2. One who has legal
interest in the success
of either of the parties,
3. One who has an interest
against both parties
4. One who is so situated
as to be adversely
affected by a
distribution or other
disposition of property
in the custody of the
PRE-TRIAL court or of an officer
thereof.
FACTORS TO BE
No Amicable Failure to
Settlement Settlement Appear
Agreements
made by parties; If plaintiff is If defendant
Amendments to Absent, when is absent,
pleading; so required to court may
Schedule of trial attend, the hear evidence
court may of plaintiff
dismiss the ex parte
case
TRIAL
If evidence is insufficient to
prove plaintiff’s cause of
Court action or defendant’s
renders counterclaim, court rules in
decision favor of either one or
dismisses the case
CONSIDERED BY THE COURT

1. Whether or not the
intervention will unduly
RULE 19 delay or prejudice the
INTERVENTION adjudication of the
rights of the original
Who may intervene? parties;

Charissimae
52
Defendants are Defendants are being

already original sued precisely to
parties to the pending implead them
suit
Section 2. Time to intervene.

At any time before rendition of
judgment by the trial court.
JUSTIFICATION: Before
judgment is rendered, the
court, for good cause shown,
may still allow the introduction
of additional evidence and
that is still within the liberal
interpretation of the period for
trial.
Since no judgment has yet

2. Whether or not the been rendered, the matter
intervenor’s rights may subject of the intervention
be fully protected in a may still be readily resolved
separate proceeding. and integrated in the
judgment disposing of all
The interest which entitles a claims in the case.
person to intervene in a suit
must be on the matter in REMEDIES FOR THE DENIAL
litigation and of such direct OF INTERVENTION:
and immediate character that 1. Appeal
the intervenor will either gain 2. mandamus if there is grave
or lose by the direct legal abuse of discretion
operation and effect of the If there is improper granting of
judgment. intervention, the remedy of the party is
certiorari.
INTERVENTION INTERPLEADER
RULE 21
SUBPOENA
An ancillary action. An original action.
Proper in any of the Presupposes that the

four situations plaintiff has no SUBPOENA SUMMONS
mentioned in this interest in the subject an order to appear and Order to answer
Rule. matter of the action testify or to produce complaint
or has an interest books and documents
therein, which in may be served to a Served on the
whole or in part, is not non-party defendant
disputed by the other needs tender of does not need tender
parties to the action.

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53
kilometrage, of kilometrage and in prison – must be authorized

attendance fee and other fees
reasonable cost of
by the SC.
production fee
Section 4. Quashing a
SUBPOENA AD subpoena.
TESTIFICANDUM – a process A. Subpoena duces tecum
directed to a person requiring may be quashed upon proof
him to attend and to testify at that:
the hearing or the trial of an 1. It is unreasonable and
action, or at any investigation oppressive;
conducted by competent 2. The articles sought to be
authority, or for the taking of produced do not appear
his deposition. prima facie to be
relevant to the issues;
SUBPOENA DUCES TECUM – a 3. The person asking for
process directed to a person the subpoena does not
requiring him to bring with advance the cost for the
him books, documents, or production of the
other things under his control. articles desired.
Section 2. By whom issued B. Subpoena ad testificandum

Who may issue may be quashed if the witness
1. Court before whom the is not bound thereby.
witness is required to
attend In EITHER case, the subpoena
2. Court of the place where may be quashed for failure to
the deposition is to be tender the witness fees and
taken kilometrage allowed by the
3. Officer or body Rules.
authorized by law to do
so in connection with GENERAL RULE
investigations a. The court which issued
conducted by said the subpoena may issue
officer or body a warrant for the arrest
4. Any Justice of the SC or of the witness and make
of the CA in any case or him pay the cost of such
investigation pending warrant and seizure, if
within the Philippines. the court should
determine that his
SUBPOENA TO A PRISONER – disobedience was willful
must be for a valid purpose; if and without just cause
prisoner required to appear in (Sec. 8);
court is sentenced to death,
reclusion perpetua or life b. The refusal to obey a
imprisonment and is confined subpoena without
adequate cause shall be

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deemed a contempt of 2. Depositions before

the court issuing it action or pending
(Sec.9). appeal (Rule 24).
Exceptions: 3. Interrogatories to
Provisions regarding the parties (Rule 25).
compelling of attendance 4. Admission by adverse
(Sec. 8) and contempt (Sec. 9) party (Rule 26).
does not apply where: 5. Production or inspection
of documents, or things
a. Witness resides more than 100 (Rule 27).
km from his residence to the 6. Physical and mental
place where he is to testify by examination of persons
the ordinary course of travel, (Rule 28).
generally, by overland
transportation (VIATORY Discovery before answer.
RIGHT). It is only in the exceptional or
unusual case that the need for
b. Permission of the court in discovery arises, or that it
which the detention prisoner’s should be allowed before
case is pending was not service of answer.
obtained.
Modes of Discovery are
RULES OF DISCOVERY intended to be CUMULATIVE,
DISCOVERY - is the procedure and not alternative nor
by which one party in an mutually exclusive.
action is enabled to obtain
before trial knowledge of Discovery is NOT MANDATORY
relevant facts and of material but failure to avail carries
evidence in the possession of sanctions in Rules 25 and 26.
the adverse party or of a
witness.
RULE 23
Rationale of discovery: to DEPOSITIONS PENDING
enable the parties to obtain ACTION
the fullest possible knowledge
of the issues and evidence DEPOSITION – is a written
long before the trial to prevent testimony of a witness given
such trial from being carried in the course of a judicial
on in the dark. proceeding in advance of the
trial or hearing upon oral
Modes of discovery under the examination or in response to
Rules of Court written interrogatories and
1. Depositions pending where an opportunity is given
action (Rule 23). for cross-examination.

Charissimae
55
Depositions are intended as a Section 4. Use of depositions.

means to compel disclosure of Where the witness is available
facts resting in the knowledge to testify and the situation is
of a party or other person, not one of those excepted
which are relevant in a under Sec. 4, his deposition is
suit/proceeding. inadmissible in evidence and
he should be made to testify.
CLASSIFICATIONS OF
DEPOSITIONS It can be used as evidence by
1. Depositions on ORAL a party for any purpose under
EXAMINATION and the specific conditions in Sec.
Depositions upon 4.
WRITTEN
INTERROGATORIES
2. Depositions DE BENE DEPONENT USE
ESSE - those taken for Any person By any party for
purposes of a pending contradicting or
action (Rule 23) ; and impeaching the
testimony of deponent
3. Depositions IN as witness
PERPETUAM REI
MEMORIAM - those A party or any one By an adverse party for
who at the time of any purpose
taken to perpetuate the deposition was
evidence for purposes of an OFFICER,
anticipated action, or in DIRECTOR, or
MANAGING AGENT of
the event of further a public or private
proceedings in a case on corp., partnership,
appeal, and to preserve or association which
is a party
it against danger of loss
(Rule 24). Witness, whether or By any party for any
not a party purpose if the court
finds the 5 instances
WHEN TAKEN occurring
WITH LEAVE OF COURT
1. after jurisdiction has
been obtained over any SCOPE OF INQUIRY IN
defendant or over the DEPOSITIONS:
property which is the 1. Matter which is relevant
subject of the action and to the subject of the
BEFORE answer. pending action;
2. Deposition of a person 2. Not privileged
confined in prison. 3. Not restricted by a
protective order
WITHOUT LEAVE OF COURT Certiorari will not lie against
AFTER answer AND deponent an order admitting or rejecting
is not confined in prison. a deposition in evidence, the

Charissimae
56
remedy being an appeal from consular agent of the

the final judgment. Phil.
2. before such person or
Section 7. Effect of taking officer as may be
depositions. appointed by
commission or letters
A party shall not be deemed rogatory
to make a person his own 3. any person authorized
witness for any purpose by to administer oaths, as
taking his deposition because stipulated by the parties
depositions are taken for in writing
discovery and not for use as
evidence. Section 12. Commission or
letters rogatory.
Exception: If a party offers the
deposition in evidence, then
he is deemed to have made COMMISSION LETTERS ROGATORY
the deponent his witness Issued to a non- Issued to the
(Sec.8) judicial foreign officer appropriate judicial
who will directly take officer of the foreign
the testimony country who will direct
Exception to the Exception: somebody in said
foreign country to take
Unless the deposition is that down testimony
of any adverse party, and Applicable rules of Applicable rules of
unless, of course, the procedure are those of procedure are those of
deposition is used for the requesting court the foreign court
requested to act
impeaching or contradicting Resorted to if Resorted to if the
the deponent (Sec.8). permission of the execution of the
foreign country is commission is refused in
given the foreign country
Section 10 and 11. Persons Leave of court is not Leave of court is
before whom depositions may necessary necessary
be taken. Section 18. Motion to terminate or
limit examination.
WITHIN THE PHILIPPINES:
MAY BE FILED:
1. judge
1. any time during the
2. notary public
taking of the deposition
3. any person authorized
2. on motion or petition of
to administer oaths, as
any party or of the
stipulated by the parties
deponent; or
in writing
3. upon showing that the
examination is
OUTSIDE THE PHILIPPINES:
conducted in :
1. on notice, before a
a. bad faith
secretary of embassy or
b. in such manner as
legation, consul general,
unreasonably to
consul, vice-consul, or
annoy, embarrass,

Charissimae
57
or oppress the JUDGMENT IN THE RTC and

deponent or party DURING THE PENDENCY OF AN
APPEAL.
RULE 24
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL RULE 25
INTERROGATORIES TO
Depositions under this Rule PARTIES
are also taken conditionally, to
be used at the trial only in PURPOSE of Written
case the deponent is not Interrogatories: to elicit facts
available. from any adverse party
(answers may also be used as
Depositions under this Rule do admissions of the adverse
not prove the existence of any party)
right and the testimony
perpetuated is not in itself Written interrogatories and
conclusive proof, either of the the answers thereto must both
existence of any right nor be FILED and SERVED.
even of the facts to which
they relate, as it can be Interrogatories Bill of Particulars
controverted at the trial in the A party may properly A party may properly
same manner as though no seek disclosure of seek disclosure only of
matters of proof matters which define
perpetuation of testimony was which may later be the issues and become
ever had. However, in the made a part of the a part of the
absence of any objection to its records as evidence. pleadings.
taking, and even if the

deponent did not testify at the A party may serve written
hearing, the perpetuated interrogatories:
testimony constitutes prima 1. WITHOUT LEAVE OF
facie proof of facts referred to COURT – after answer has
in the deposition. been served, for the first set of
interrogatories.
Section 6. Use of deposition. 2. WITH LEAVE OF COURT –
before answer has been served
If deposition is taken under (REASON: at that time, the
this Rule, it may be used in issues are not yet joined and
the disputed facts are not yet
any action involving the SAME
clear, when more than one set
SUBJECT MATTER
of interrogatories is to be
subsequently brought.
served.)
Section 7. Depositions A judgment by default may be rendered
pending appeal. against a party who fails to answer
Sec. 7 is the procedure in written interrogatories
perpetuating testimony AFTER

Charissimae
58
Only one set of interrogatories The only exception is when

by the same party is allowed. the court allows it for GOOD
Leave of court is necessary for CAUSE shown and to prevent
succeeding sets of a failure of justice.
interrogatories.
Depositions Upon Interrogatories to
Section 6. Effect of failure to Written Parties under Rule
Interrogatories to 25
serve written interrogatories. Parties under Rule
23 Sec. 25
Rule 25 and Rule 26 are As to Deponent As to Deponent
directed to the party who fails Party or ordinary party only
witness
and refuses to RESORT to the
discovery procedures, and As to Procedure As to Procedure
With intervention of no intervention.
should not be confused with the officer authorized Written interrogatories
the provisions of Rule 29 by the Court to take are directed to the
which provides for sanctions deposition party himself
or other consequences upon a
party who refuses or fails to As to Scope As to Scope
COMPLY with discovery Direct, cross, redirect, only one set of
re-cross interrogatories
procedures duly availed of by
opponent. Interrogatories Interrogatories
no fixed time 15 days to answer
unless extended or
reduced by the court
The justification for this

provision is that the party in RULE 26
need of relevant facts having ADMISSION BY ADVERSE
foregone the opportunity to PARTY
inquire into the same from the
other party through means Section 1. Request for
available to him, he should admission.
not thereafter be permitted to
unduly burden the latter with PURPOSE OF written request
courtroom appearances or for admission is to expedite
other cumbersome processes. trial and relieve the parties of
the costs of proving facts
Unless a party had been which will not be disputed on
served written interrogatories, trial and the truth of which
he may not be compelled by can be ascertained by
the adverse party: reasonable inquiry.
1. to give testimony in
open court, or When request may be made:
2. give a deposition at any time after the issues
pending appeal. have been joined.
What request may include

Charissimae
59
1. Admission of the evidence thereon UNLESS

genuineness of any otherwise allowed by the court
material and relevant (Sec.5).
document described in
and exhibited with the
request. RULE 27
2. Admission of the truth of PRODUCTION OR INSPECTION
any material and OF DOCUMENTS OR THINGS
relevant matter of fact
set forth in the request. Production of documents
3. Under this rule, a matter affords more opportunity for
of fact not related to any discovery than a subpoena
documents may be duces tecum because in the
presented to the other latter, the documents are
party for admission or brought to the court for the
denial. first time on the date of the
scheduled trial wherein such
Section 2. Implied Admission. documents are required to be
The effect of a FAILURE to produced.
make a reply to a request for The test to be applied in
admission is that each of the determining the relevancy of
matters of which an admission the document and the
is requested is deemed sufficiency of their description
admitted. is one of reasonableness and
practicality.
A sworn statement either
denying specifically each PRODUCTION OR SUBPOENA DUCES
matter or setting forth in INSPECTION OF TECUM
DOCUMENTS OR
detail the reasons why he THINGS
cannot truthfully admit or Essentially a mode of means of compelling
deny those matters must be discovery production of evidence
filed and served upon the The Rules is limited to may be directed to a
the parties to the person whether a
party requesting the action party or not
admission. The order under this may be issued upon an
Rule is issued only ex parte application.
upon motion with
Section 3. Effect of admission. notice to the adverse
USE: An admission under this party
section is for the purpose of
the pending action only and
cannot be used in other RULE 28
proceedings. PHYSICAL AND MENTAL
EXAMINATION OF PERSONS
The party who fails or refuses
to request the admission of
facts in question is prevented The mental condition of a
from thereafter presenting party is in controversy in

Charissimae
60
proceedings for 3. The matters regarding

GUARDIANSHIP over an which the questions
imbecile or insane person, were asked, character or
while the physical condition of description of land et al.,
the party is generally involved be taken to be in
in PHYSICAL INJURIES cases. accordance with the
claim of party obtaining
Since the results of the the order;
examination are intended to 4. Prohibition on the
be made public, the same are refusing party to
not covered by the physician- produce evidence or
patient privilege. support or oppose
designated claims or
Section 4. Waiver of privilege. defenses;
5. Striking out pleadings,
Where the party examined order the dismissal of
requests and obtains a report the action or stay the
on the results of the action until compliance
examination the or to render judgment
consequences are: by default.
1. he has to furnish the 6. Order the arrest of the
other party a copy of the refusing party except in
report of any previous or cases of physical or
subsequent examination mental examination.
of the same physical
and mental condition, RULE 30
TRIAL
and
2. he waives any privilege TRIAL – judicial process of
he may have in that investigating and determining
action or any other the legal controversies
involving the same starting with the production of
controversy regarding evidence by the plaintiff and
the testimony of any ending with his closing
other person who has so arguments.
examined him or may
thereafter examine him. GENERAL RULE: when an issue
exists, trial is necessary.
RULE 29
Decision should not be made
REFUSAL TO COMPLY WITH
without trial.
MODES OF DISCOVERY
EXCEPTIONS: when there
may be judgment without
SANCTIONS
trial:
1. Contempt;
1. Judgment on the Pleading
2. Payment of reasonable
(Rule 34)
fees;

Charissimae
61
2. Summary Judgment (Rule party or counsel at the

35) trial is indispensable;
3. Judgment on Compromise and
4. Judgment by Confession 2. character of his illness is
5. Dismissal with Prejudice such as to render his
(Rule 17) non-attendance
excusable.
Section 3. Requisites of
motion to postpone trial for Section 5. Order of trial unless
absence of evidence. directed by the court.
There must be an affidavit

showing:
1. materiality or relevance
of such evidence; and
2. due diligence in
procuring it.
If the adverse party admits

the facts for which evidence is
to be presented, the trial will
not be postponed.
Unless the court for special reasons
otherwise directs, the trial shall be
Section 4. Requisites of limited to the issues stated in the pre-
motion to postpone trial for trial order.
illness of party or counsel.
There must be an affidavit or Section 6. Agreed statements
sworn certification showing: of facts.
1. p This is known as STIPULATION
Plaintiff presents
r OF FACTS and is among the
evidence
e purposes of a pre-trial.
sence of
Defendant presents Defendant files The parties may also stipulate
evidence to demurrer to verbally in open court. Such
support his evidence
defense/countercla
stipulations are binding unless
im/crossclaim/ relief therefrom is permitted
third party by the court on good cause
complaint
shown, such as error or fraud.
But counsel cannot stipulate

Third If court If court on what their respective
party grants denies EVIDENCE consists of and ask
defendant motion: motion:
presents Renders Continues that judgment be rendered on
eidence, if dismisal with the basis of such stipulation.
any hearing
Rebuttal
REMEDIAL
Evidence by LAW COMMITTEE After
CHAIRPERSON: Jinky Ann Uy Presentation
Parties ASST. CHAIRPERSONS
of : Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan,
Charissimae
evidence:
Special Proceedings); Jeenice deoral
Sagunarguments
(Criminal Procedure); Elaine Masukat (Evidence)
submission of
DECISION memoranda
62
Stipulations of facts are not question or to admission of

permitted in actions for evidence or exhibits; and
ANNULMENT OF MARRIAGE 4. He shall submit his report and
and for LEGAL SEPARATION. transcripts of the proceedings,
together with the objections to
Section 8. Suspension of be resolved by the court,
actions. within 10 days from the
Art. 2030 of the Civil Code. termination of the hearing.
Every civil action or
RULE 31
proceeding shall be
CONSOLIDATION OR
suspended
SEVERANCE
1. If willingness to discuss
a possible compromise
GENERAL RULE: Consolidation
is expressed by one or
is discretionary upon the
both parties; or
court
2. If it appears that one of
EXCEPTIONS: Consolidation
the parties, before the
becomes a matter of duty
commencement of the
when:
action or proceeding,
1. if the cases are pending before
offered to discuss a
the same judge OR
possible compromise
2. if filed with different branches
but the other party
of a court and one of such
refused the offer.
cases has NOT been partially
tried.
Section 9. Judge to receive
evidence; delegation to clerk
REQUISITES FOR
of court.
CONSOLIDATION:
GENERAL RULE: the judge
1. When actions involving a
must himself personally
common question of law or
receive and resolve the fact, and
evidence of the parties. 2. The actions are pending before
However, the reception of the same court
such evidence may be if filed with DIFFERENT
delegated under the following courts, authorization from
conditions: the SC is necessary.
1. The delegation may be made
only in defaults or ex parte 3 WAYS OF CONSOLIDATING
hearings, or an agreement in CASES:
writing by the parties. 1. by RECASTING THE
2. The reception of evidence CASES ALREADY
shall be made only by the clerk INSTITUTED, conducting
of that court who is a member only one hearing and
of the bar. rendering only one
3. Said clerk shall have no power decision;
to rule on objections to any

Charissimae
63
2. by CONSOLIDATING THE 3. Question of fact, other than

EXISTING CASES and upon the pleading arises; or
holding only one hearing 4. Carrying a judgment or order
and rendering only one into effect.
decision; and
3. by HEARING ONLY THE Disobedience to a subpoena issued by
PRINCIPAL CASE and the commissioner is deemed a
suspending the hearing contempt of the court which appointed
on the others until the latter.
judgment has been
rendered in the principal RULE 33
DEMURRER TO EVIDENCE
case. (Test-case
method) Section 1. Demurrer to
evidence.
Consolidation of cases on
appeal and assigned to
different divisions of the SC
DEMURRER TO MOTION TO DISMISS
and the CA is also authorized.
EVIDENCE
Generally, the case which was It is presented after presented before a
appealed later and bearing the plaintiff has responsive pleading
the higher docket no. is rested his case (answer) is made by
the defendant
consolidated with the case The ground is based it may be based on any
having the lower docket no. on insufficiency of of those enumerated
evidence in Rule 16
RULE 32 2 Scenarios
TRIAL BY COMMISSIONER
MOTION DENIED MOTION GRANTED
COMMISSIONER- a person to BUT REVERSED ON
whom a cause pending in APPEAL
court is referred, for him to Movant shall have the Movant is deemed to
take testimony, hear the right to present his have waived his right
evidence to present evidence.
parties and report thereon to The decision of the
the court, and upon whose appellate court will
report, if confirmed, judgment be based only on the
evidence of the
is rendered. plaintiff as the
Reference to a commissioner defendant loses his
may be had by the written right to have the case
remanded for
consent of both parties. reception of his
evidence.
Situations when reference to a denial is order of the court is
INTERLOCUTORY. Sec. an ADJUDICATION ON
Commissioner may be made 1 , Rule 36 (that THE MERITS, hence,
on motion (Sec.2): judgment should state the requirement in
1. Examination of a long account clearly and distinctly Sec. 1, Rule 36
the facts and the law should be complied
2. Taking of an account is on which it is based), with.
necessary will not apply.

Charissimae
64
The denial is NOT JUDGMENT ON THE

appealable.
PLEADINGS
CIVIL CASES CRIMINAL CASES A judgment on the pleadings
Defendant need not ask leave of court is
for leave of court; necessary so that the must be on motion of the
accused could claimant. (No supporting
present his evidence papers are required because
if the demurrer is
denied everthing is based on the
if the court finds if the court finds the pleadings.)
plaintiff’s evidence prosecution’s
insufficient, it will evidence insufficient,
grant the demurrer by it will grant the HOWEVER, if at the pre-trial
dismissing the demurrer by the court finds that a
complaint. The rendering judgment judgment on the pleadings is
judgment of dismissal is acquitting the
appealable by the accused. Judgment of proper, it may render such
plaintiff. If plaintiff acquittal is not judgment motu proprio.
appeals and judgment appeallable; double
is reversed by the jeopardy sets-in
appellate court, it will GROUNDS:
decide the case on the 1. Answer fails to tender an issue
basis of the plaintiff’s because of:
evidence with the
consequence that the a. general denial of the
defendant already loses material allegations of
his right to present the complaint;
evidence no res
judicata in dismissal b. insufficient denial of
due to demurrer the material allegations
if court denies if court denies the of the complaint ; or
demurrer, defendant demurrer:
will present his If demurrer was with
2. Answer admits material
evidence leave, accused may allegations of the adverse
present his evidence party’s pleading
If the demurrer was
without leave,
accused can no  By moving for judgment on the
longer present his pleading, plaintiff waives his
evidence and submits
the case for decision
claim for unliquidated damages.
based on the Claim for such damages must be
prosecution’s alleged and proved.
evidence
NO JUDGMENT ON THE
PLEADINGS IN ACTIONS FOR
JUDGMENT ON DEMURRER TO 1. Declaration of nullity of
EVIDENCE marriage
is a judgment rendered by the court
2. Annulment of marriage
dismissing a case upon motion of the
defendant, made after plaintiff has 3. Legal Separation
rested his case, on the GROUND that
upon the facts presented by the plaintiff
and the law on the matter, plaintiff has
not shown any right to relief.
Motion to Dismiss Motion for
RULE 34 judgment on the

Charissimae
65
b. the movant is entitled to a

pleadings judgment as a matter of law.
Filed by a defendant Filed by the plaintiff The summary judgment may
to a complaint, if the answer raises
counterclaim, cross- no issue. be a judgment on the merits,
claim or 3rd-party in which case, an appeal may
complaint be taken therefrom.
If the complaint states no cause of

action, a motion to dismiss should be
SUMMARY JUDGMENT JUDGMENT
filed and not a motion for judgment on
the pleading. JUDGMENT ON THE BY DEFAULT
PLEADINGS (Rule 9)
Based on the based solely on based on the
RULE 35 pleadings, the pleadings. complaint and
depositions, evidence, if
SUMMARY JUDGMENTS admissions presentation is
and affidavits required.
SUMMARY JUDGMENT Available to generally Available to
both plaintiff available only plaintiff.
One granted by the court for the and defendant to the plaintiff,
prompt disposition of civil actions unless the
wherein it clearly appears that there defendant
presents a
exists NO genuine issue or counterclaim.
controversy as to any material fact. There is The answer no issues as no
no genuine fails to tender answer is filed
Who can File issue between an issue or by the
the parties, there is an defending
1. Plaintiff: he must wait for the i.e. there may admission of party.
answer to be filed and served, and be issues but material
thus for the issue to be joined, these are allegations.
irrelevant
before he can move for summary 10-day notice 3-day notice 3-day notice
judgment. required required rule applies.
2. Defendant: he can move for May be On the merits On the merits
summary judgment at anytime, interlocutory
or on the
that is, anytime after filing and merits
service of the complaint even
before he answers
RULE 36
The motion for summary JUDGMENTS, FINAL ORDERS
judgment must be supported AND ENTRY THEREOF
by (1) affidavit, (2) depositions
of the adverse party or a third
party, or (3) admissions of the JUDGMENT- final consideration
adverse party, all intended to and determination by a court
show that: of the rights of the parties,
a. there is no genuine issue as to upon matters submitted to it
any material fact, except in an action or proceeding.
damages which must always
be proved, and

Charissimae
66
The date of finality of the judgment and must follow the

judgment or final order shall established procedural rule.
be deemed to be the date of
its entry. The power to amend a
judgment is inherent to the
REQUISITES OF A JUDGMENT: court before judgment
1. It should be in writing, becomes final and executory.
personally and directly
prepared by the judge After judgment has become
2. Must state clearly and executory, the court cannot
distinctly the facts and the amend the same
law on which it is based
3. It should contain a except:
dispositive part and should 1. To make corrections
be signed by the judge and of clerical errors, not
filed with the clerk of substantial
court. amendments, as by
an amendment nunc
PROMULGATION- the process pro tunc.
by which a decision is 2. To clarify an
published, officially ambiguity which is
announced, made known to borne out by and
the public or delivered to the justifiable in the
clerk of court for filing, context of the
coupled with notice to the decision.
parties or their counsel. 3. In judgments for
support, which can
MEMORANDUM DECISION- a always be amended
decision of the appellate court from time to time.
which adopts the findings and
the conclusion of the trial
court. MANNER OF ATTACKING
JUDICIAL COMPROMISE JUDGMENTS:
 A judgment based on a
compromise which has the 1. Direct attack
force of law and is conclusive a. before finality
between parties. 1. motion for new trial
 Not appealable. or reconsideration;
2. appeal
A JUDGMENT is considered b. after finality
RENDERED Upon filing of the 1. relief from judgment,
signed decision. This includes rule 38
an amended decision because 2. annulment of
an amended decision is a judgment, Rule 47.
distinct and separate

Charissimae
67
2.Collateral attack Proper when more than one

claim for relief is presented in
an action and a determination
as to the issues material to
the claim has been made. The
PROMULGATION OF JUDGMENT action shall proceed as to the
remaining claims.
Court Renders Decision
Filing appeal within

Losing Party 15/30 days from
notice of judgment
Judgment NUNC PRO TUNC
(literally means “now for
Accepts Within 15/30 days
then”)
decision from notice of  rendered to enter or record
without further judgment: such judgment as has been
contest Motion for
reconsideration; or formerly rendered but has not
motion for new trial been entered as thus rendered
 its only function is to record
Court some act of the court which
maintains
decision was done at a former time, but
Court grants motion:
1.modifies decision; or which was not then recorded,
If no appeal is
2.grants new trial in order to make the record
taken or did speak the truth, without any
not avail of
remedies, changes in substance or any
judgment material respect.
becomes final Losing party may
and executory appeal within the
remaining period Judgment upon Agreement or
Compromise
Section 4. Several judgments. A compromise agreement
Several judgment is proper between the parties to a case
where the liability of each on which the decision of the
party is clearly separable and court was based has upon the
distinct from his co-parties parties the effect and
such that the claims against authority of res judicata. It is
each of them could have been immediately executory.
the subject of separate suits,
and the judgment for or Judgment by Confession
against one of them will not Judgment upon confession is
necessarily affect the other. one which is rendered against
a party upon his petition or
A several judgment is NOT consent. It usually happens
proper in actions against when the defendant appears
solidary debtors. in court and confesses the
right of the plaintiff to
Section 6. Separate Judgments judgment or files a pleading

Charissimae
68
expressly agreeing to the

It is an entirely new Does not take the
plaintiff’s demand. decision and place of or extinguish
supersedes the the original judgment
Two kinds of judgment by original judgment
confession Court makes a Serves to bolster or
1. A judgment by cognovit thorough study of the add to the original
actionem – here, the original judgment and judgment
renders the amended
defendant after service and clarified judgment
instead of entering a only after considering
plea, acknowledged and all the factual and
legal issues
confessed that the
plaintiff’s cause of
action was just and RULE 37
NEW TRIAL OR
rightful. RECONSIDERATION
2. A judgment by
confession relicta
Order denying
verificatione – after motion for new trial
pleading and before
trial, the defendant both
confessed the plaintiff’s Second motion for new trial
cause of action and based on grounds not existing or
available when 1st motion was
withdrew or abandoned filed
his plea or other
allegations, whereupon
Appeal from the judgment or
judgment was entere final order and assign as one of
against him without the errors the denial of the
proceeding to trial. motion for new trial
An order denying a motion for new trial

is not appealable.
Judgment upon Judgment by
Compromise Confession NEW TRIAL - the rehearing of
The provisions and An affirmative and
terms are settled and voluntary act of the
a case already decided by the
agreed upon by the defendant himself. court but before the judgment
parties to the action, The court exercises a rendered thereon becomes
and which is entered certain amount of
in the record by the supervision over the
final and executory, whereby
consent of the court. entry of judgment. errors of law or irregularities
are expunged from the record,
Clarificatory Judgment or new evidence is introduced,
rendered by the court, upon motion, or both steps are taken.
when a judgment previously rendered Purpose: to set aside the
is ambiguous and difficult to comply judgment or final order and
with. grant a new trial.
AMENDED OR SUPPLEMENTAL When to file: within period for

CLARIFIED DECISION
JUDGMENT
taking appeal.

Charissimae
69
point out specifically the

Where to file: with the trial findings or conclusions of the
court which rendered the judgment as are contrary to
questioned judgment. law, making express reference
to the testimonial or
MOTION FOR A NEW MOTION FOR documentary evidence or to
TRIAL RECONSIDERATION the provisions of law alleged
The grounds are: fraud, The grounds are: the
accident, mistake or damages awarded are to be contrary to such findings
excusable negligence or excessive, that the or conclusions, and is merely
newly discovered evidence is insufficient intended to delay the
evidence which could to justify the decision
not, with reasonable or final order, or that proceedings OR if there is no
diligence, have the decision or final affidavit of merit.
discovered and produced order is contrary to
at the trial, and which if law.
presented would Section 6. Effect of granting of
probably alter the result motion for new trial
Second motion may be Second motion from When motion is granted, the
allowed same party is
prohibited
original judgment is thereby
If a new trial is granted if the court finds that vacated and the action stands
the trial court will set excessive damages for trial de novo, but the
aside the judgment or have been awarded or
final order that the judgment or
recorded evidence taken upon
final order is contrary the former trial so far as the
to the evidence or law, same is material and
it may amend such
judgment or final order
competent to establish the
accordingly issues, shall be used at the
new trial taking the same.
REQUISITES for newly- The order denying a motion

discovered evidence for new trial is NOT
1. Must have been appealable.
discovered after trial
2. Could not have been MOTION FOR NEW MOTION FOR
discovered and TRIAL REOPENING OF THE
TRIAL
produced at the trial Specifically Not mentioned in the
3. If presented, would alter mentioned in the Rules but is
the result of the action Rules nevertheless a
recognized procedural
4. Otherwise it is called recourse or device
FORGOTTEN EVIDENCE. deriving validity and
acceptance from long
established usage
A motion suspends or tolls the NOTE: It is actually
running of the reglementary mentioned in the Rules
period for appeal except when of Criminal Procedure
Proper only after May properly be
the same is pro-forma. promulgation of presented only after
judgment either or both the
PRO-FORMA MOTION - when it parties have formally
offered and closed
does not comply with Rule 15 their evidence before
and Rule 37, e.g. it does not judgment

Charissimae
70
Based upon specific Controlled by no other petition for certiorari and

grounds set forth rule than the
under Rule 37 in civil paramount interests of
action to annul judgment
cases and Rule 121 in justice, resting entirely on the ground of extrinsic
criminal cases on the sound discretion fraud or lack of jurisdiction
of a trial court, the
exercise of which
o COLLATERAL ATTACK
discretion will not be – if the judgment can be
reviewed on appeal resisted in any other action
UNLESS a clear abuse
thereof is shown
in which it is involved.
MOTION FOR RECONSIDERATION RULE 37 RULE 38

Purpose: To reconsider or Available BEFORE Available AFTER
judgment becomes judgment has become
amend judgment or final order final and executory final and executory
When to file: within period for Applies to Applies to judgments,
taking an appeal JUDGMENTS or FINAL final orders and other
ORDERS only proceeding:
WHERE to file: with the trial court 1.Land Registration
which rendered the judgment or final 2.Special Proceedings
order sought to be reconsidered 3. Order of Execution
RULE 38 GROUNDS: GROUNDS:

i. FAME FAME
RELIEF FROM JUDGMENTS, ii. Newly discovered
ORDERS, OR OTHER evidence
PROCEEDINGS WHEN AVAILED OF: WHEN AVAILED OF:
Within the time to within 60 days from
appeal knowledge of the
REMEDIES AGAINST FINAL judgment AND
AND EXECUTORY JUDGMENTS
within 6 months from
OR ORDERS entry of judgment
If denied, the order If denied, the order
1. Petition for Relief from of denial is NOT denying a petition for
Judgment (Rule 38) appealable, hence relief is NOT
remedy is appeal appealable; the
2. Annulment of judgments or from the judgment remedy is appropriate
final orders or resolutions civil action under Rule
(Rule 47) on the ground of: 65
Legal remedy Equitable remedy
o Extrinsic fraud, to be filed Motion need not be Petition must be
within 4 years from the verified verified
discovery of the fraud;
o Lack of jurisdiction, before TWO HEARINGS UNDER RULE 38
it is barred by laches or 1. Hearing to determine
estoppel whether the judgment
3. Direct or collateral attack should be set aside
against a void or voidable 2. If yes, a hearing on the
judgment merits of the case.
o DIRECT ATTACK – when
the validity of the The period fixed by Rule 38 is
judgment itself is the main non-extendible and is never
issue of the action, a

Charissimae
71
interrupted. ESSENTIAL REQUISITE OF A

WRIT OF EXECUTION: a writ of
execution to be valid, must
RULE 39 conform strictly to the
EXECUTION, SATISFACTION decision or judgment which
AND EFFECT OF JUDGMENTS gives it life.
It cannot vary the terms of the

EXECUTION – remedy provided judgment it seeks to enforce
by law for the enforcement of
a final judgment. FINAL JUDGMENT OR ORDER-
one which disposes of the
AGAINST WHOM ISSUED: whole subject matter or
execution can only issue terminates the particular
against a party and not proceedings or action, leaving
against one who has not had nothing to be done by the
his day in court. court but to enforce by
execution what has been
WRIT OF EXECUTION: judicial determined.
writ issued to an officer EXECUTION OF JUDGMENT
authorizing him to execute the
judgment of the court.
Judgment is If the winning
executed by party does not
motion within move for
5 years from execution w/in
date of its 5 years but
entry before 10
years from the
date of entry
of judgment,
Execution is a the same can
matter of right only be revived
after by means of a TEST TO DETERMINE
expiration of new action / WHETHER A JUDGMENT OR
period to petition
ORDER IS FINAL OR
appeal and no
appeal is INTERLOCUTORY: The test is
perfected whether the judgment or
order leaves nothing more for
Discretionary the court to do with respect to
execution upon
good reasons the merits of the case.
stated in a
special order SPECIAL JUDGMENT – one that
after due
hearing requires the performance of
an act OTHER THAN:
1. The payment of money;
and
Sheriff enforces writ of execution
REMEDIAL LAW isCOMMITTEE

Losing party made to indemnify thru:
payment
Charissimae
with interest;
levy and
Ventura, sale of
Jocelyn personal
Zabala property;
 SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
levy and
Special sale of real
Proceedings); property;
Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
delivery of personal and real property
72
2. The sale of real or EXECUTION MATTER OF RIGHT

personal property
Section 1. Execution Upon May issue before Period to appeal has
Judgments and Final Orders. the lapse of period already lapsed and
to appeal no appeal is
perfected
EXECUTION ISSUES AS A
MATTER OF RIGHT: Discretionary upon Ministerial duty of
1. on motion the court; there is the court PROVIDED
inquiry on whether there are no
2. upon a judgment or order that there is GOOD supervening events
disposes of the action or REASON for
proceeding AND execution
3. upon expiration of the period
to appeal therefrom and NO
appeal has been duly
perfected.
GENERAL RULE: court cannot GROUNDS FOR EXECUTION

refuse execution PENDING APPEAL:
UNLESS: 1. Insolvency of the judgment
1. Execution is UNJUST OR debtor.
IMPOSSIBLE 2. Wastage of asset by judgment
2. Equitable grounds like a debtor.
CHANGE IN SITUATION
of the parties which Section 3. Stay of
makes execution Discretionary Execution. The
inequitable party against whom an
3. Judgment NOVATED by execution is directed may file
parties a supersedeas bond to stay
4. Execution is enjoined discretionary execution.
5. Judgment has become
DORMANT SUPERSEDEAS BOND- one
filed by a petitioner and
Quashal of writ proper when: approved by the court before
1. Improvidently issued the judgment becomes final
2. Defective in substance and executory and
3. Issued against the conditioned upon the
wrong party performance of the judgment
4. Judgment already appealed from in case it be
satisfied affirmed wholly or in part.
5. Issued without authority
Supersedeas bond guarantees
Section 2. Discretionary satisfaction of the judgment in
Execution case of affirmance on appeal,
not other things like damage
to property pending the
DISCRETIONARY EXECUTION AS A appeal

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73
MODE OF ENFORCEMENT
The court may, in its 1. By motion within 5 years from
discretion, order an execution date of its entry
before the expiration of the 2. By independent action after 5
time within which to appeal years from entry AND before
provided: it is barred by statute of
1. There is a motion for limitations
execution filed by the
winning party Judgment for support does not
2. There is notice of said become dormant, thus it can
motion to the adverse always be executed by
party; and motion.
3. There are good reasons
stated in a special order 5-year period may be
after due hearing. extended by the conduct of
judgment debtor.
GENERAL RULE: an order of
execution is NOT appealable A revived judgment is a new
otherwise there would be no judgment thus another 5/10-
end to the litigation between year period to execute and
the parties. revive is given the party.
EXCEPTIONS:
1. When the terms of the Section 7. Execution In Case
judgment are not very Of Death Of Party.
clear; If the obligor dies AFTER entry
2. When the order of but BEFORE LEVY on his
execution varies with property, execution will be
the tenor of the issued for recovery of real or
judgment. personal property or
enforcement of a lien thereon.
Section 4. Judgments NOT But for a sum of money,
Stayed By Appeal judgment cannot be enforced
1. INJUNCTION by writ but as a claim against
2. RECEIVERSHIP his estate/probate
3. ACCOUNTING proceedings.
4. SUPPORT
5. Such other judgments If he dies AFTER a VALID LEVY
declared to be has been made, execution
immediately executory sale proceeds.
unless otherwise Section 8. Issuance, Form and
ordered by the trial Contents of a Writ of
court. Execution.
Section 6. Execution By Remedies in an order granting

Motion Or Independent Action. or denying the issuance of a
writ of execution

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74
Appeal is the remedy for an execution sale. The levy on

order denying the issuance of execution shall create a lien in
a writ of execution. favor or the judgment creditor
over the right, title and
Section 10. Execution Of interest of the judgment
Judgments For Specific Act. debtor in such property at the
If party REFUSES TO VACATE time of the levy.
PROPERTY, remedy is NOT
contempt. The Sheriff must The levy on execution creates
oust the party. But if a lien in favor of the judgment
demolition is involved, there creditor subject to prior liens
must be a special order. and encumbrances.
If party REFUSES TO DELIVER, GARNISHMENT - act of

sheriff will take possession appropriation by the court
and deliver it to winning when property of debtor is in
party. the hands of third persons
When the party REFUSES TO The garnishee or the 3rd

COMPLY, court can appoint person who is in possession of
some other person at the the property of the judgment
expense of the disobedient debtor is deemed a forced
party and the act done shall intervenor.
have the same effect as if the
required party performed it,
the disobedient party incurs
no liability for contempt. ATTACHMENT GARNISHMENT
Refers to corporeal refers to money,
Section 11. Execution of property in the stocks, credits and
possession of the other incorporeal
Special Judgments. judgment debtor. property which belong
When judgment requires the to judgment debtor
but is in the possession
performance of any act other or under the control of
than for money and delivery a third person
of property.
Section 16. Proceedings
The writ of execution shall be
Where Property Claimed By
served upon the party
Third Person.
required to obey the same and
such party may be punished
REMEDIES of third party
for contempt if he disobeys.
claimant
LEVY - act by which an officer
1. Summary hearing
sets apart or appropriates a
before the court which
part of the whole of the
authorized the
property of the judgment
execution;
debtor for purposes or the

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75
2. TERCERIA or third party b. Redemptioner who is a

claim filed with the creditor having a:
sheriff; 1) Lien by
3. Action for damages on attachment on the
the bond posted by property sold
judgment creditors; or subsequent to the
4. Independent lien under which
reinvidicatory action. the property was
sold,
The remedies are cumulative 2) Lien by judgment
and may be resorted to by on the property
third party claimant sold subsequent
independently of or separately to the lien under
from the others. which the property
was sold;
If winning party files a bond, it 3) Lien by mortgage
is only then that the sheriff on the property
can take the property in his sold subsequent
possession. IF NO BOND, to the lien under
cannot proceed with the sale. which the property
was sold.
SALE ON EXECUTION
Notice of sale is required WHEN CAN REDEMPTION BE
before levied property can be MADE?
sold at public auction (Sec.
15). BY THE JUDGMENT OBLIGOR:
Within one (1) year from the
Remedy against an irregular date of registration of the
sale is MOTION TO VACATE OR certificate of sale.
SET ASIDE THE SALE to be
filed in the court which issued BY THE REDEMPTIONER:
the writ. 1. Within one year from
the date of registration
REDEMPTION (Secs. 27 & 28) of the certificate of sale;
Right of Redemption: or
1. Personal Property – NONE; 2. Within sixty days from
sale is absolute the last redemption by
2. Real Property – there is a right another redemptioner
of redemption If the judgment obligor
redeems, no further
Who may redeem (Sec. 27) redemption is allowed (Sec.
Only the following: 29).
a. Judgment obligor, or his
successor in interest, in whole The period of redemption is
or any part of the property; OR NOT suspended by an action
to annul the foreclosure sale.

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76
substituted to and acquires all

CAN REDEMPTION BE PAID IN the rights, title, interest and
OTHER FORMS THAN CASH? claims of the judgment obligor
YES. The rule is liberality in to the property at the time of
allowing redemption (aid levy.
rather than defeat the right)
and it has been allowed in the The deed of conveyance is
case of a cashier’s check, what operates to transfer to
certified bank checks and the purchaser whatever rights
even checks. the judgment debtor had in
the property. The certificate of
The offer to redeem must be sale after execution sale
accompanied with a bona fide merely is a memorial of the
tender or delivery of the fact of sale and does not
redemption price. operate as a conveyance.
However, a formal offer to The purchaser acquires no

redeem with a tender is not better right than what the
necessary where the right to judgment debtor has in the
redeem is exercised through property levied upon. Thus, if
the filing of a complaint to the judgment debtor had
redeem in the courts, within already transferred the
the period to redeem. property executed prior to the
levy and no longer has an
RIGHTS OF THE JUDGMENT interest in the property, the
DEBTOR: execution purchaser acquires
1. Remain in possession of no right.
the property
2. Collect rents and profits WHEN A THIRD PERSON IS IN
3. Cannot be Ejected POSSESSION, The procedure is
4. Use the property in the for the court to order a
same manner it was hearing and determine the
previously used nature of such adverse
5. Make necessary repairs possession.
Section 33. Deed and

possession to be given at Section 34. Recovery of price
expiration of redemption if sale is not effective; revival
period; by whom executed or of judgment.
given.
THE PURCHASER MAY
RECOVER THE PURCHASE
The PURCHASER is entitled to PRICE WHEN
a CONVEYANCE AND 1. The purchaser or his
POSSESSION of the property if successor-in-interest
there is no redemption. He is FAILS TO RECOVER

Charissimae
77
POSSESSION of the satisfaction of the

property or; judgment (Section 37)
2. Purchaser after having
acquired possession is 4. If the court finds the
evicted due to: earnings of the
a. Irregularities in the judgment debtor are
proceedings more than sufficient for
concerning the sale. his family’s needs, it
b. Reversal or setting may order payment in
aside of judgment. installments (Section
c. The fact that the 40)
property was exempt
from execution. 5. The court may appoint
d. A third person has a receiver for the
vindicated his claim property of the
to the property. judgment debtor not
exempt from execution
REMEDIES OF THE JUDGMENT or forbid a transfer or
CREDITOR IN AID OF disposition or
EXECUTION interference with such
property (Section 41)
1. If the execution is
returned unsatisfied, he 6. If the court finds that
may cause examination the judgment debtor
of the judgment debtor has an ascertainable
as to his property and interest in real property
income (Section 36) either as mortgagor,
mortgagee, or
2. He may cause otherwise, and his
examination of the interest can be
debtor of the judgment ascertained without
debtor as to any debt controversy, the court
owed by him or to any may order the sale of
property of the such interest. (Section
judgment debtor in his 42)
possession (Section 37)
7. If the person alleged to
3. If after examination, have the property of
the court finds that the judgment debtor or
there is property of the be indebted to him,
judgment debtor either claims an adverse
in his own hands or that interest in the property,
of any person, the court or denies the debt, the
may order the property court may authorize the
applied to the judgment-creditor to
institute an action to

Charissimae
78
recover the property,

forbid its transfer and Par (B) is referred to as “bar
may punish by former judgment” or res
disobedience for judicata in judgments in
contempt (Section 43) personam
Section 46. When Principal RES JUDICATA - final

Bound By Judgment Against judgments on the merits by a
Surety. court of competent jurisdiction
The principal is bound by the is conclusive as to the rights
same judgment from the time of the parties or their privies
he has notice of the action or in all later suits on points
proceeding and has been determined in the former
given an opportunity at the judgment.
surety’s request, to join the
defense. REQUISITES:
1. A FINAL judgment or
Section 47. Effect Of Judgment order
Or Final Orders. 2. JURISDICTION over the
Refers to judgments which are subject matter and the
considered as conclusive and parties by the court
may be rebutted directly by rendering it
means of relief from judgment 3. Judgment UPON THE
or annulment of judgment or MERITS
indirectly by offering them in 4. Between the two cases:
evidence under the parole IDENTITY OF PARTIES
evidence rule. IDENTITY OF SUBJECT
MATTER
Par (A) refers to rule on res IDENTITY OF CAUSE OF
judicata in judgments in rem ACTION
THERE IS IDENTITY OF CAUSE

JUDGMENT or EFFECT: CONCLUSIVE OF ACTION when the two
FINAL ORDER AS TO
actions are based on the same
Against a specific Title to the thing delict or wrong committed by
thing the defendant even if the
remedies are different.
Probate of a will or Will or administration
administration of However, ONLY prima
the estate of a facie evidence of the Under the doctrine of res
deceased person death of the testator judicata, no matter how
or intestate
erroneous a judgment may be,
In respect to the Condition, status or once it becomes final, it
personal, political, relationship of the cannot be corrected. The only
or legal condition or person
status of a grounds are lack of
particular person jurisdiction, collusion or fraud.

Charissimae
79
Par. (C) is known as of a right as between

“conclusiveness of judgment” the parties and their
or rule of auter action successors-in-interest by
pendent a subsequent title.
CONCLUSIVENESS OF
Appeal decision of MTC by filing notice of
JUDGMENT appeal and pay appellate court docket
 has the effect of preclusion only of fee in the same MTC within 15 days from
issues. receipt of judgment
 parties in both actions may be the In both instances,

same but the causes of action are
15 days from perfection of appeal,
different. MTC clerk transmits record to RTC
the judgment
BAR BY FORMER CONCLUSIVENESS OF
Notice to parties that an appeal is being
JUDGMENT JUDGMENT taken from the decision of MTC
There is identity of There is ONLY identity of may be repelled by

parties, subject PARTIES AND SUBJECT
matter and causes MATTER Within 15 days from notice of appeal:
of action  appellant submits memorandum to
the RTC
The first judgment The first judgment is  appellee files his own memorandum 15
constitutes as an conclusive only as to days from receipt of appellants
memorandum
ABSOLUTE BAR TO matters directly adjudged
ALL MATTERS and actually litigated in
directly adjudged the first action. Second
and those that action can be prosecuted. If uncontested, Any party may
might have been judgment is appeal by filing a
adjudged. entered in the petition for
book of entries review with the
RTC
Section 48. Effect Of Foreign Judgment evidence of want of

Or Final Orders:
jurisdiction, notice, collusion,
fraud or clear mistake of law
THE EFFECT OF FOREIGN or fact.
JUDGMENTS
Provided that the foreign RULE 40
tribunal had jurisdiction: APPEAL FROM MUNICIPAL
TRIAL COURTS TO THE
1. IN CASE OF JUDGMENT REGIONAL TRIAL COURTS
AGAINST A SPECIFIC
THING, the judgment is APPEAL FROM MTC TO RTC
CONCLUSIVE upon the
TITLE TO THE THING;
2. IN CASE OF A JUDGMENT
AGAINST A PERSON, the
ORDINARY APPEAL - an appeal by notice
judgment is of appeal from a judgment or final order
PRESUMPTIVE EVIDENCE of a lower court on questions of fact and
law.

Charissimae
80
b. judgment or final
APPEAL TO THE RTC order appealed
 Mode of Appeal – Notice of from
Appeal within fifteen (15) c. material date
days from receipt of showing
decision. timeliness of
 After an appeal to the RTC appeal
has been perfected, the 3. A copy served on the
MTC loses its jurisdiction adverse party.
over the case and any 4. Payment in full of docket
motion for the execution of fees and other lawful
the judgment should be fees
filed with the RTC.
 The Summary Rules no
longer apply when the
cases is on appeal.
Section 2. When to Appeal.

1. Within 15 days after ORDINARY APPEAL PETITION FOR
notice of judgment or REVIEW
Matter of right Discretionary
final order; All the records are No records are
2. Where a record on elevated from the elevated unless the
appeal is required, court of origin court decrees it
Notice of record on Filed with the CA
within 30 days from appeal is filed with
notice of judgment or the court of origin
final order by filing a
notice of appeal and a By Record on appeal:
record on appeal; 1. for special proceedings
3. Period to appeal shall be such as probate; and
interrupted by a timely 2. in such other cases
motion for new trial or where multiple appeals
reconsideration. are allowed as in
4. No motion for extension partition and in
of time to file a motion expropriation.
for new trial or
reconsideration shall be Section 4. Perfection of
allowed. Appeal; effect thereof.
Appeal is deemed perfected:

Section 3. How to Appeal. 1. by notice of appeal: as
By Notice of Appeal: to him, upon the filing of
1. File a notice of appeal the notice of appeal in
with the trial court. due time;
2. The notice of appeal 2. by record on appeal: as
must indicate: to him, upon the
a. parties approval of the record

Charissimae
81
on appeal filed in due 2. Reverse, in which case,

time. it shall remand the case
for further proceedings.
Effect of a perfected appeal:
The court loses jurisdiction If dismissal is due to lack of
upon the perfection or jurisdiction over the subject
approval of appeal and when matter:
the period of appeal for other RTC may:
parties expire. 1. Affirm; if RTC has
jurisdiction, shall try the
Residual power of the court case on the merits as if
prior to the transmittal of the the case was originally
original record or record on filed with it, or
appeal: 2. Reverse, in which case,
1. to issue orders for the it remand the case for
preservation of the further proceedings.
rights of the parties
which do not involve If the case was tried on the
matters litigated by merits by the lower court
appeal; without jurisdiction over the
2. to approve compromise subject matter:
prior to the transmittal RTC shall not dismiss the case
of the record; if it has original jurisdiction,
3. permit appeal by an but shall decide the case, and
indigent; shall admit amended
4. order execution pending pleadings or additional
appeal under Rule 39, evidence.
Sec.2 ( motion for
execution was filed
before the expiration of RULE 41
the period to appeal; APPEAL FROM REGIONAL
5. allow withdrawal of the TRIAL COURTS
appeal.
APPEALABLE CASES
1. Judgments or final
orders that completely
disposes of the case.
Section 8. Appeal from orders 2. A particular matter in a
dismissing case without trial; judgment declared by
lack of jurisdiction the Rules to be
appealable.
If lower court dismissed case
without trial on the merits: NON APPEALABLE CASES
RTC may: 1. Order dismissing an
1. Affirm, or action without prejudice

Charissimae
82
2. Order of Execution
3. Judgments or final Section 2. Modes of appeal.
orders for or against one
or more of several Ordinary Petition for Petition for
appeal review review on
parties or in separate (appeal by writ [Rule 42] certiorari
claims while the main of error) [Rule 45]
case is pending
Case is decided Case is The case
4. Orders disallowing or by the RTC in decided by raises only a
dismissing an Appeal its original the MTC. question of
5. Interlocutory orders jurisdiction Appealed to law
Appealed to the the RTC.
6. Orders denying: CA Petition for
a. Petition for relief; review with
b. Motion for new the CA
trial or
reconsideration; File a notice of File a verified File a verified
and appeal or a petition for petition for
record on review with review on
c. Motion to Set appeal with the the CA. Pay certiorari with
aside a judgment, court of origin the docket the SC (R 45)
by consent, (RTC) and give and lawful Pay docket
a copy to the fees, and P and lawful
confession or adverse party. 500 as deposit fees and P 500
compromise on for costs with for costs.
the ground of the CA. Submit proof
Furnish RTC of service of a
fraud, mistake, and adverse copy to the
duress or any party copy of lower court
ground vitiating such (R 42). and adverse
party.
consent.
Remedy in cases where Within 15 days Within 15 days Within 15

from the notice from notice of days from
appeal is not allowed of the judgment the decision notice of the
Special civil action of certiorari for notice of to be judgment or
or prohibition if there is lack or appeal and reviewed or order or
within 30 days from the denial of the
excess of jurisdiction or grave for records on denial of a MR MR or new
abuse of discretion or appeal. The or new trial. trial.
mandamus if there is no period for filing
is interrupted
performance of duty. by a timely
motion for
INTERLOCUTORY ORDER – An reconsidera-
tion or new
order which does not dispose trial.
of the case but leave
something else to be done by Section 7. Approval of record
the trial court on the merits of on appeal.
the case.
Procedure if the appeal is
A judgment based on through a record on appeal
compromise is not appealable
and is immediately executory.

Charissimae
83
1. file record on appeal face that the lower court has

2. appellee may file an committed an error of fact
objection within 5 days and/or law that will warrant a
from his receipt thereof reversal or modification of the
3. if there is no objection decision or judgment sought
the court may: to be reviewed; OR dismiss
 approve it as presented; the petition if it finds that it is
OR patently without merit, or
 direct its amendment on its prosecuted manifestly for
own or upon the motion of delay, or the questions raised
the adverse party therein are too unsubstantial
4. if an amendment is ordered the to require consideration.
appellant must redraft the
record within the time ordered It is merely discretionary on the CA to
or if there is no time, within 10 order the elevation of the records. This
days from receipt is because until the petition is given due
5. submit the record for course, the trial court may still issue a
approval with notice on warrant of execution pending appeal and
the adverse party in some cases such as ejectment and
those of Summary Procedure, the
The period to appeal is judgments are immediately executory. It
MANDATORY and is only when the CA deems it necessary
JURISDICTIONAL. Failure to that the Clerk of the RTC will be ordered
appeal on time makes the to elevate the records of the case.
decision final and executory
and deprives the appellate
RULE 43
court of jurisdiction.
APPEALS FROM THE COURT OF
TAX APPEALS AND THE QUASI-
However in few instances the
JUDICIAL AGENCIES TO THE CA
court has allowed due course
to such appeals on strong and
Judgments and final orders or
compelling reasons of justice.
resolutions of the NLRC are
reviewable by the COURT OF
APPEALS in an original action
for certiorari under Rule 65
(St. Martin Funeral Home vs.
NLRC, Sept. 16, 1998).
A party adversely affected by
RULE 42
a decision or ruling of the CTA
PETITION FOR REVIEW FROM
en banc may file with the
THE REGIONAL TRIAL COURTS
Supreme Court a verified
TO THE COURT OF APPEALS
petition for review on
certiorari pursuant to Rule 45
Petition for review is not a
(Sec. 12, RA 9282).
matter of right but
discretionary on the CA. It
may only give due course to
the petition if it shows on its

Charissimae
84
Ordinary appeals Certiorari, Prohibition,

Mandamus, Quo
Warranto and Habeas
Corpus cases
RULE 44
Filed within 45 days within 30 days
ORDINARY APPEALED CASES
Contents specified Shorter, briefer, only

Section 9. Appellant’s reply by Rules one issue involved - no
subject index or
brief. assignment of errors just
facts and law applicable
Failure to file appellant's brief
on time is a ground for
dismissal of the appeal.
If a motion to dismiss an
appeal has been filed, it
suspends the running of the
period for filing the appellant RULE 45
brief, as the same would be APPEAL BY CERTIORARI TO
unnecessary should the THE SUPREME COURT
motion be granted.
RTC, Sandiganbayan or CA
The failure of the appellant to renders decision
make specific assignment of
errors in his brief or page
references to the record as Any party files a petition for review on
required in this section is a certiorari w/in 15 days from notice of
final judgment or order of lower court
ground for dismissal of his or notice of denial of motion for
appeal. reconsideration or new trial
Section 15. Questions that

may be raised on appeal.
Appellant serves copies of petition on
adverse parties and to the lower court,
The appeal can raise only and pay the corresponding docket fees
questions of law or fact that

1. were raised in the court
below; and SC may dismiss the petition or require
2. are within the issues the appellee to comment
framed by the parties Section 1. Filing of petition

thereon. with
If given due course, parties may
submit memoranda
BRIEF vs. MEMORANDUM
Supreme Court
SC may affirm, reverse, or modify
BRIEF MEMORANDUM judgment of the lower court

Charissimae
85
Appeals to the SC can be taken from a admissions of appellants

judgment or final order or resolution of and appellees;
the CA, the Sandiganbayan, the RTC or
such other courts as maybe authorized
7. When the findings of
by law and only by verified petition for fact of the CA are at
review on certiorari on questions of law variance with those of
except only in appeals from judgments the trial court, the SC
of the RTC in criminal cases wherein the has to review the
penalty imposed is life imprisonment or
reclusion perpetua which shall be evidence in order to
elevated by ordinary appeal, or wherein arrive at the correct
the death penalty is imposed which is findings based on the
subject to automatic review. record;
fact are conclusions
without citation of
specific evidence on
GENERAL RULE: the findings of which they are based;
fact of the CA are final and 9. When the facts set forth
conclusive and cannot be in the petition as well as
reviewed on appeal to the SC. in the petitioner’s main
and reply briefs are not
EXCEPTIONS to disputed by the
CONCLUSIVENESS OF FACTS: respondents;
10. The findings of
1. When the finding is fact of the CA is
grounded entirely on premised on the
speculations, surmise or supposed evidence and
conjecture; is contradicted by the
2. When inference made is evidence on record;
manifestly absurd, 11. When certain
mistaken or impossible; material facts and
3. When the judgment is circumstances have
premised on a been overlooked by the
misrepresentation of trial court which, if
facts; taken into account,
4. When there is grave would alter the result of
abuse of discretion in the case in that they
the appreciation of would entitle the
facts; accused to acquittal.
fact are conflicting;
6. When the CA in making
its findings went beyond
the issues of the case
and the same is
contrary to both the

Charissimae
86
reconsideration or new
trial is filed, the
QUESTIONS OF LAW period shall not only
QUESTIONS OF
be interrupted but
FACT
another 60 days shall
Certiorari under Rule 45 vs. doubt or controversy doubt or difference
be given to the
certiorari under Rule 64/65 as to what the law is petitioner
arises as to( the truth
SC Admin.
on certain facts or falsehood of facts,
Matter 002-03 )
( special civil action) or as to probative
The court is in the value of the evidence
Court exercises
presented
exercise of its original jurisdiction
CERTIORARI UNDER CERTIORARI UNDER ifappellate jurisdiction
the appellate court the determination
and
can power of review
determine the involves evaluation or
RULE 45 RULE 64/65 issue raised without review of evidence
reviewing or
petition is based on petition raises the evaluating the
questions of law issue as to whether evidence
the lower court acted Can involve questions query invites the
without jurisdiction or of interpretation of calibration of the
in excess of the law with respect whole evidence
jurisdiction or with to certain set of facts considering mainly the
grave abuse of credibility of
discretion witnesses, existence
and relevancy of
It is a mode of appeal Special civil action specific surrounding
circumstances and
Involves the review of Directed against an relation to each other
the judgment award interlocutory order of and the whole
or final order on the the court or where probabilities of the
merits there is no appeal or situation
any other plain,
speedy or adequate
remedy
RULE 46
Must be made within filed not later than 60
ORIGINAL CASES
the reglementary days from notice of
period judgment, order or Section 2. To what actions
resolution appealed
from
applicable.
Stays the judgment or Unless a writ of Under B.P. Blg. 129, the CA
order appealed from preliminary injunction
or temporary
has original
restraining order is jurisdiction to issue writs of
issued does not stay mandamus, prohibition,
the challenged
proceeding
certiorari, habeas corpus and
quo warranto, and auxiliary
The petitioner and the The parties are the writs or processes, whether or
respondent are the aggrieved party
original parties to the against the lower
not they are in aid of its
action, and the lower court or quasi-judicial appellate jurisdiction, and it
court or quasi-judicial agency and the has exclusive original
agency is not prevailing parties
impleaded
jurisdiction over actions for
annulment of judgments of
Motion for Motion for Regional Trial Courts.
reconsideration is not reconsideration or for
required new trial is required
If a motion for

Charissimae
87
ANNULMENT OF JUDGMENTS
Section 4. Jurisdiction over OR FINAL ORDERS AND
person, how acquired. RESOLUTIONS
JURISDICTION IS ACQUIRED:
Annulment of judgment is a
1. Over the PETITIONER - remedy in law independent of
by filing of the petition. the case where the judgment
2. Over the RESPONDENT - sought to be annulled was
by the service on the rendered and may be availed
latter of the order or of though the judgment has
resolution indicating the been executed.
courts initial action on
the petition and NOT by One important condition for
the service on him of the availment of this remedy -
the petition or by his the petitioner failed to move
voluntary submission. for new trial in, or appeal
from, or file a petition for relief
Section 5. Action by the court. against, or take other
appropriate remedies assailing
PROCEDURAL OUTLINE the questioned judgment or
(original cases in the Court of final order or resolution
Appeals) through no fault attributable
1. Filing of the petition to him.
2. Order to acquire
jurisdiction over If he failed to avail of those
respondents OR Outright other remedies without
dismissal for failure to sufficient justification, he
comply to requirements cannot resort to annulment
also form and payment provided in this Rule,
of docket and other otherwise he would benefit
legal fees. from his own inaction or
3. Require respondents to negligence.
file COMMENT within 10
days from NOTICE Grounds for annulment of
4. Court may require the judgment
filing of a REPLY or such 1. extrinsic fraud or
other pleadings as it collateral fraud;
may deem necessary 2. lack of jurisdiction;
5. Determination of
FACTUAL ISSUES, the court Extrinsic fraud shall not be a
may delegate the reception of valid ground if it was availed
evidence on such issues to any of of, or could have been availed
its members.
of, in a motion for new trial or
RULE 47
petition for relief.

Charissimae
88
EXTRINSIC OR COLLATERAL RULE 48

FRAUD is any fraudulent act of PRELIMINARY CONFERENCE
the prevailing party in the
litigation which is committed Section 3. Binding effect of
outside of the trial of the case, the results of the conference
whereby the defeated party
has been prevented from In the CA, this procedural
exhibiting fully and fairly device may be availed of not
presenting his side of the only in original actions but
case. also in cases on appeal
wherein a new trial was
granted on the ground of
EXTRINSIC LACK OF newly discovered evidence.
FRAUD JURISDICTION The CA can act as a trier of
facts, hence the preliminary
Period of 4 years from Before it is barred conference authorized is a
Filing discovery by laches or
action estoppel
convenient adjunct to such
power and function.
Effect of Trial court Original action
judgment will try the may be refiled
case
RULE 49
ORAL ARGUMENT
Section. 5. Action by the
court. Section 3. No hearing or oral
Two stages: argument for motions
1. A preliminary evaluation
of the petition for prima Motions in the SC and the CA
facie merit therein, and do not contain notices of
2. The issuance of hearing as no oral arguments
summons as in ordinary will be heard in support
civil cases and such thereof; and if the appellate
appropriate proceedings court desires to hold a hearing
thereafter as thereon, it will itself set the
contemplated in Sec. 6. date with notice to the
parties.
The rule allows the CA to RULE 50

DISMISSAL OF APPEAL
dismiss the petition outright
as in special civil actions. Section 1. Grounds for
dismissal of appeal
For the court to acquire With the exception of Section
jurisdiction over the 1 (b) dismissal of an appeal is
respondent, the rule requires directory and not mandatory.
the issuance of summons
should prima facie merit be Other grounds for the
found in the petition and the dismissal of an appeal are:
same is given due course.

Charissimae
89
1. by agreement of the Law of the Case – the opinion

parties, as where the delivered on a former appeal. It means
case was amicably that whatever is once irrevocably
settled by them. established, as the controlling legal
2. where the appealed rule or decision between the same
case has become moot parties in the same case, continues to
or academic. be the law of the case, whether correct
3. where the appeal is on general principles or not, so long as
frivolous or dilatory. the facts on which such decision was
predicated continue to be the facts
Section 2. Dismissal of improper before the court.
appeal to the Court of Appeals
But this rule does not apply to
No transfer of appeals, resolutions rendered in
erroneously taken to it or to connection with the case
the Court of Appeals, wherein no rationale has been
whichever of these tribunals expounded on the merits of
has appropriate appellate that action.
jurisdiction, will be allowed.
Also, elevating such appeal by Section 5. Form of Decision
the wrong mode of appeal The requirement for the
shall be a ground for statement of facts and the law
dismissal. refers to a decision or for that
A resolution of the Court of matter a final resolution. The
Appeals dismissing the appeal same are not required on
and remanding the case to the minute resolutions since these
trial court for further usually dispose of the case not
proceedings is merely on its merits but on procedural
interlocutory, hence a motion or technical considerations.
for its reconsideration filed
year later may be entertained Although the court may, if it
and granted feels necessary, briefly
discuss the matter on the
Section 3. Withdrawal of Appeal merits in an extended
resolution.
Court of Appeals may dismiss
the appeal outright even
without motion. The remedy if
dismissed for improper appeal
is to refile it in the proper With respect to petitions for
forum but has to be within the review and motions for
prescribed period. reconsideration, the
Constitution merely requires a
RULE 51 statement of the legal basis
JUDGMENT for the denial thereof or
refusal of due course thereto.

Charissimae
90
The court may opt, but it is from the date the same was
not required to issue an submitted for resolution,
extended resolution thereon. which is normally the filing of
the last pleading required by
Section 6. HARMLESS ERROR the rules of court or the
The court, at every stage of the expiration of such period.
proceeding, must disregard any error or
defect which does not affect the
substantial rights of the parties such as Rules now requires the service
error in admission or exclusion of of the motion to the adverse
evidence or error or defect in the ruling party
or order.
Section 8. Questions that may RULE 53

be decided NEW TRIAL
Only errors claimed and
Filing of a motion for new trial
assigned by a party will be
is at any time after the
considered by the court,
perfection of the appeal from
except errors affecting its
the decision of the lower court
jurisdiction over the subject
and before the Court of
matter. To this exception has
Appeals loses jurisdiction over
now been added errors
the case
affecting the validity of the
judgment appealed from or
The ground is newly
the proceedings therein.
discovered evidence which
could not have been
Even if the error complained
discovered prior to the trial in
of by a party is not expressly
the court below by the
stated in his assignment of
exercise of due diligence and
errors but the same is closely
of such character as would
related to or dependent on an
probably alter the result.
assigned error and properly
argued in his brief such error
RULE 56
may now be considered by the
PROCEDURE IN THE SUPREME
court.
COURT
RULE 52
MOTION FOR RECONSIDERATION A. ORIGINAL CASES
Rule specifically states what
The rules now prohibit a cases may be originally filed
second motion for with the Supreme Court
reconsideration. 1. petition for certiorari,
prohibition, mandamus,
Sec. 3 provides a time limit of quo warranto, habeas
90 days for the resolution of a corpus;
motion for reconsideration
filed with the Court of Appeals

Charissimae
91
2. disciplinary proceedings PD 1818 prohibits the

against members of the issuance of injunctive writs
judiciary and attorneys not only against government
3. cases affecting entities but also against any
ambassadors, other person or entity involved in
public ministers and the execution,
consuls implementation, and
operation of government
B. APPEALED CASES Mode of infrastructure projects.
Appeal
In criminal cases where the penalty RULE 57
imposed is death or reclusion perpetua, PRELIMINARY ATTACHMENT
an appeal made to the Supreme Court is
through a notice of appeal filed with the
RTC in all other cases, an appeal made The proper party may have
to the supreme court is through a the property of the adverse
petition for review on certiorari. party attached at the
commencement of the action
PROVISIONAL REMEDIES
or at any time before entry of
Also known as ancillary or judgment.
auxiliary remedies, are writs
and processes available When issued
during the pendency of the
action which may be resorted 1. In actions for recovery
to by a litigant to preserve of a specified sum of
and protect certain rights and money or damages,
interests therein pending except moral and
rendition, and for purposes of exemplary, on a cause
the ultimate effects, of a final of action arising from
judgment in the case. law, contract, quasi-
contract, delict or quasi-
delict against a party
about to depart from the
The following are the Phils. with intent to
provisional remedies provided defraud his creditors;
for in the Rules of Court
1. Preliminary Attachment 2. In actions for recovery
(Rule 57) of money or property
2. Preliminary Injunction embezzled or
(Rule 58) fraudulently converted
3. Receivership (Rule 59) to his own use by a
4. Replevin (Rule 60) public officer, or an
5. Support Pendente Lite officer of a corp., or an
(Rule 61) attorney, factor, broker,
agent or clerk, in the
course of his
employment as such, or

Charissimae
92
by any person in a PRELIMINARY MANDATORY

fiduciary capacity; Injunction – an order requiring
the performance of a
3. In actions to recover particular act or acts.
property unjustly taken
or concealed, when the Grounds
property or any of its 0. applicant is entitled to
part, has been the relief demanded; or
concealed or disposed of 1. commission,
to prevent its being continuance or non-
found by the applicant performance of the act
or any authorized complained of would
person; work injustice to the
applicant if not enjoined;
4. In actions against a or
person guilty of fraud in 2. the acts sought to be
incurring or performing enjoined probably
an obligation upon violates the rights of the
which the action is applicant respecting the
based; subject of the action and
tending to render the
5. In actions against a judgment ineffectual.
party who has removed
or disposed of his Section 5.
property, or is about to There must be prior notice to
do so, with intent to the person sought to be
defraud his creditors; enjoined and a hearing before
preliminary injunction may be
6. In actions against non- granted.
residents not found in
the Phils., or on whom If great or irreparable injury
summons is served by would result to the applicant,
publication. the court may issue ex parte a
temporary restraining order,
effective only for 20 days from
RULE 58 service on the party sought to
PRELIMINARY INJUNCTION be enjoined.
Preliminary Injunction – an If the matter is of extreme

order granted at any stage of urgency and the applicant will
an action or proceeding prior suffer grave injustice and
to the judgment requiring a irreparable injury, the judge
party or a court, agency or a may issue a TRO effective
person to refrain from a only for 72 hours from
particular act or acts. issuance. Its effectivity may
be extended after conducting

Charissimae
93
a summary hearing w/in the does not involve Based on the ground
jurisdiction of the that the court against
72-hrs period until the court whom the writ is
application for preliminary sought had acted
injunction can be heard. without or in excess of
jurisdiction
The total period of effectivity it may be the main Always the main
of the TRO shall not exceed 20 action itself or just a action
days, including the 72 hours. provisional remedy
If application is denied or not

resolved within said period,
the TRO is deemed RULE 59
RECEIVERSHIP
automatically vacated.
WHEN MAY BE GRANTED
Effectivity of TRO is not 1. applicant has an interest in the
extendible. There is no need property or fund subject of the
of a judicial declaration to that proceeding and such property
effect. is in danger of being lost or
materially injured unless a
A TRO issued by the CA or any receiver is appointed;
of its members is effective for 2. in foreclosure of mortgage,
60 days from service on the when the property is in danger
party sought to be enjoined. of being wasted or dissipated
and that its value is probably
A TRO issued by the SC or a insufficient to discharge the
member therof is effective mortgage debt or that it has
until further orders. been agreed upon by the
parties;
Grounds for Objection 3. after judgment, to preserve the
1. insufficiency; property during the pendency
2. if injunction would cause of an appeal or to dispose of it
irreparable damage to accdg. to the judgment or to
the person enjoined aid execution;
while the applicant can 4. when appointment of receiver
be fully compensated for is the most convenient and
such damages, feasible means of preserving,
PROVIDED the former administering or disposing of
files a BOND. the property in litigation.
Distinctions A person who refuses or neglects to

deliver property within his control and
which is the subject of the action to
INJUNCTION PROHIBITION
directed against a Directed against a the receiver may be punished for
party in the action court, tribunal or a contempt and liable to the receiver for
person exercising the money or the value of the property
judicial powers
plus damages.

Charissimae
94
SUPPORT ‘PENDENTE LITE’

The receiver shall also file a
When may be applied for: at the
bond before entering upon his commencement of the action or at any
duties separate from the bond time before judgment or final order.
filed by the applicant.
Failure to comply with an order granting
RULE 60 support pendente lite may warrant the
issuance of an order of execution against
REPLEVIN the non-complying party. He may
likewise be liable for contempt.
The sheriff shall retain the
property for 5 days. Within See matrix on provisional remedies
such period, the adverse party more detailed information.
may object to the sufficiency
of the applicant’s bond or
surety or he may file a
counter-bond.
After 5 days and the adverse

party failed to object or his
counter-bond is insufficient,
the sheriff shall deliver the
property to the applicant.
Distinctions
REPLEVIN ATTACHMENT
May be sought only Available even if

when the principal recovery of property is
action is recovery of only incidental to the
personal property. relief sought.
Can be sought only when May be resorted to even

defendant is in actual if the property is in
possession of the possession of a third
property. person.
CANNOT be availed of Can be AVAILED of even

when property is in if property is in
custodia legis CUSTODIA LEGIS.
Available before Available from

defendant answers commencement but
before entry of
judgment
Bond is DOUBLE the Bond is FIXED by the

value of the property court
RULE 61

Charissimae

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San Beda College of Law

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

Ex. Action to recover Ex. Action to recover

It is not simply the filing of the Section 2. Cause of Action, defined.

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

2. Correlative legal duty of the

RELIEF REMEDY SUBJECT complaints is terminated by

General Rule on Divisible Contract

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

not yet due, if the obligor has Section 33 BP129, as

PROHIBITED. Causes ENCOURAGED.

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

PLAINTIFFS- Those having an

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

undisclosed principal may sue Requisites of permissive

Section 5. Minor or INDISPENSABLE NECESSARY

The action cannot The action can

PERMISSIVE JOINDER – the

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

necessary party with respect

SOLIDARY DEBTORS – either Objections to defects in

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

OR if no legal representative is The action shall continue to be

The case will be dismissed if

The action may be maintained Requisites:

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

implied, entered into by

However, execution shall not The rule on VENUE IS NOT APPLICABLE

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

2. affirmative relief sought

The Supreme Court has the

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

Dismissal of Action for SUMMARY PROCEDURE IN

court may court may

W/in 10 days If Defendant fails to

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

judgment or for as may be warranted when

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

5. Where the dispute

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

or any government office for

THE PARTIES MAY GO RULES ON VENUE UNDER THE

The parties may, at any stage 4. Disputes arising at the

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

PLEADINGS – the written ULTIMATE FACTS - essential

PLEADING MOTION 3. The details of probative

May be initiatory Cannot be initiatory as