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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D.

Regalado

judicial policy of preventing clogging of the court dockets w/c


CHAPTER I
normally arises from the filing of multiple suits.
GENERAL PRINCIPLES
B. JURISDICTION
I. The Fundamentals of Ordinary Civil Actions
As a fundamental principle, the plaintiff is obligated to file his
COMPLAINT complaint w/ the court vested w/ juris over the subject matter of
the action.
Primary purpose of this pleading is to sue another for the
enforcement or protection of a right, or the prevention or redress of Filing in the wrong court is a ground for dismissal of the complaint
a wrong. either upon proper motion by the adverse party or upon the court’s
own motion. Dismissal is inevitbale bec any judgment rendered by a
The filing of the complaint enables the court to acquire juris over the cour tw/o juris over the subject matter.
person of the plaintiff. IOW, the plaintiff voluntarily sumbits himself
to the juris of the court. Juris of this type is a matter of substantive law. The latter law will
tells that juris over the civil actions and probate proceedings is
A. RIGHT OF ACTION AND CAUSE OF ACTION determined by the value of the personal prop, estate or demand in
the relation to the place where the action is to be insituted.
1. Cause of action arises when someone violates the rights of
another. C. VENUE

It involves a right of the plaintiff and a violation of this right by the To determine the venue of the ordinary civil action, the plaitiff will,
defendant. This cause of action has its origins in substantive law. inevitably, have to initially consider whether the action to be filed is
Hence, every action must be predicated upon a provision of a real or personal action and if there are any restrictive
substantive law. stipulations.

 Procedural law – outlines the methods and processes of his  Real Action – commenced and tried in the place where the real
rights. property is situated.
 Substantive law – supplies the legal basis for the existence of  Personal Action – may be commenced and tried in the place
the right itself and the corresponding legal prerogative to where the plaintiff resides or where the defendant resides, or
demand its protection. in the case of non-resident defendant, where he may be found,
at the election of the plaintiff.
It is an act or omission by w/c a party violates the rights of  Restrictive – if the parties agreed in writing on the exclusive
another. W/o a violation of this right, there can be no cause of venue prior to the filing of the action, then the place stipulated
action and, w/o this cause of action, there would be no right to is the only venue.
invoke the rules of procedure and file a suit against the  Permissive – where the parties stipulated on a place not
defendant. The right to file a suit is called a right of action. intended to be the exclusive venue for the action. This
stipulation operates to provide an additional venue for the
The rules requires the plaintiff to sufficiently allege the ultimate
action in addition to those set by the rules.
facts w/c, taken together, constitutes one’s cause of action. IOW,
the plaintiff, in his complaint should state a cause of action Unlike the laws on juris w/c authorizes a dismissal by the court on its
against the defendant. own motion, the rules on venue:

Test of the sufficiency of averments – whether the court can  GR: precludes a court from dismissing a complaint motu propio.
render valid judgment upon the same in accordance w/ the prayer  EXC: when so authorized by a special rule (such as under
in the complaint, assuming that the facts, as alleged, are true. Summary Procedure w/c allows the court to dismiss the case
outright on any of the grounds for the dismissal of a civil
Cause of action requires sufficiency of allegations and not the
action).
truth of the material allegations of the complaint. The truth, of
the allegations of the complaint, is tested and determined in the
D. PARTIES
trial and not at the time of the filing of the complaint.
To be a plaintiff, one should be real party in interest. Plaintiff must
2. Joinder of causes of action is the joining of 2 causes of action in
sufficiently allege ownership of a right violated by the adverse party.
one complaint.

Plaintiff is precluded by the rules from instituting mor than one IOW, he must be one who “stands to be benefited or injured by the
suit for a single cause of action. The reason for the rule is the judgment in the suit, or the party entitled to the avails of the suit.”

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
Defendant as either an indispensable or a necessary party. 6. Counsel’s signature – constitutes a certificate by him that he has
read the pleading; that to the best of his knowledge,
 Indispensible – his joinder is compulsory. W/o such party, no information, and belief there are good grounds to support it; and
final determination could be had of an action. that it is not interposed for delay.
 Necessary – non-inclusion of such does not prevent the court 7. Address of the pary/his counsel – should not be a post office
from proceeding w/ the action although, w/o such party, no box.
complete relief may be accorded as to those already parties. 8. Verification of pleading – general rule: need not be verified;
exception: when specifically mandated by law or a particular rule
E. PRESCRIPTION AND CONDITIONS PRECEDENT (petitions for certiorari, prohibition, and mandamus must be
Prescription verified).
9. Certification against Forum Shopping – that he has not
If the action is already barred by the statute of limitations, the right commenced any action or filed any claim involving the same
of action has ceased. It has ceased bec it has prescribed and issues pending in, or already resolved, in any other tribunal.
prescription is one of the well-recognized grounds for the dismissal Failure to comply is a ground for dismissal of the complaint,
of a complaint, the same being a mode of extinguishment of a legal upon motion and after hearing.
obligation.
G. PROVISIONAL REMEDIES
Conditions Precedent
Depending upon the nature of the action, the plaintiff may avail of
There are actions w/c require the performance of conditions
any of the provrem (temporary reliefs) provided:
precedent. Compliance w/ such conditions is imperative and cannot
be conveniently ignored. a. Preliminary attachment;
b. Preliminary injunction;
Compliance w/ conditions precedent is not, however, sufficient;
c. Receivership;
compliance therewith must be alleged in the complaint for it to
d. Replevin or support pendente lite.
sufficiently state a cause of action.

F. PREPARATION OF THE COMPLAINT H. FILING OF THE COMPLAINT

Filing of the complaint is the act of presenting the same before the
1. Ultimate facts – any pleading need only state the ultimate facts
clerk of court. It is upon filing of the complaint that the court
w/c consitute a party’s claim/defense. Facts are to be alleged
acquires juris over the person of the accused. Must be accompanied
plainly, concisely, and directly in a methodoligical and logical
by the payment of the requisite docket and filing fee for the court to
form. Statement of evidentiary facts (to be presented in trial)
acquire juris over the case.
and conclusions of law (are to be made by the court) are
omitted. G.R.: Failure to pay the fees, complaint is not considered filed.
2. On fraud – circumstances constituting fraud/mistake be stated EXC: When payment is done within a reasonable time, but not
w/ particularity to enable the court to determine the type of beyond the prescriptive period.
fraud committed by the defendant and his subsequent liability, if
there be any. I. SCENARIOS AFTER THE FILING OF THE COMPLAINT
3. Action may be based upon a document – such document,
however, needs to be properly pleaded in the complaint by 1. Dismissal of the complaint by the plaintiff – when plaintiff may
setting forth the substance of the instrument in the complaint entertain doubts as to the need to pursue the compalint filed.
and attaching the original copy or a copy thereof as an integral
part of the coplaint. Defending party may opt to deny the  before answer is served/a motion for summary judgment –
genuineness of the document. As a rule, denial should be done he may dismiss his own complaint by filing notice of
under oath. dismissal. Motion to dismiss is not required. GR: dismissal is
4. Relief – complaint must specify the relief sought although the w/o prejudice to its refiling; EXC: ow stated in the notice of
rule allows the addition of a general prayer for such reliefs as the dismissal/when barred by the ‘two-dismissal’ rule.
court may deem just/equitable. The nature of the cause of  after service of answer/a motion for summary judgment –
action is primarily determined by the allegations in the body of plaintiff now has to file motion to dismiss. Grant/denial of
the complaint and not by the prayer. the motion is now a matter addressed to the sound
discretion of the court since it is no longer a matter of right.

5. Dated & signed – complaint must be dated and signed by the If dismissal is allowed by court, only the complaint is
party or the counsel representing him. An unsigned pleading dismissed. IOW, counterclaim already pleaded prior to he
produces no legal effect. service upon the defendant of the motion to dismiss is not

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
affected by the dismissal of the complaint and is w/o summons, however, may be dispensed w/ if the defendant makes a
prejudice to the right of the defendant to prosecute his voluntary appearance. Under the Rules, volunary appearance shall
counterclaim. be equivalent to service of summons.

2. Dismissal by the court – on its own motion if it appears from A. MOTION FOR BILL OF PARTICULARS
the complaint or the pleadings that:
Procedurally, defendant is under no obligation to outrightly file an
a. Court has not jursidiction over the subj matter;
answer after receiving summons, since the rule allows him certain
b. There is another action pending between the same parties
procedural options.
for the same cause;
c. Action is barred by a prior judgment or by the statute of After finding ambiguities in the complaint, defendant may file a
limitations; motion for bill of particulars for the ambiguities to be clarified. Bill of
particulars is submitted by the plaintiff, upon order of the court and
Court may dismiss a complaint on its own motion, or upon
upon motion of the other party.
motion of the adverse party, for causes due to the fault of the
plaintiff. When the plaintiff w/o justifiable cause: fails to Upon being notified of the motion, the court may either deny or
appear on the date of the presentation of his evidencein chief, grant the motion outright, or allow the parties the opportunity to
the prosecute his action for an unreasonable length of time, or heard. Hence, the court is not obliged to conduct a hearing on the
comply with the Rules or any order of the court. GR: dismissal motion.
will have the effect of an adjudication upon the merits; EXC: the
court declares ow. If the motion is granted, party directed to submit a bill of particular
must comply with the order w/in 10 days from notice. If the order is
3. Amendment of the complaint – a matter of right, provided it is not obeyed, or in case compliance is insufficient, the court may
made before the other party has served a responsive pleading. order the striking of the pleading or the portions thereof or make
May even be done to correct error in juris/to effect a change in such other as it may deem just.
the cause of action so long as amendment is still a matter of
right. B. MOTION TO DISMISS

After responsive pleading has been served, amendment must A motion to dismiss is an omnibus motion. As such, when it is filed,
be with leave of court. IOW, amendment becomes a matter of it shall include all objections then available.
judicial discretion.
G.R.: all objections not so included are deemed waived; EXC: certain
Amendment is not allowed when it is inteded for delay, court defenses like: (a) lack of juris over the subj matter; (b) litis
has no juris over the subj matter and the amendment is for the pendentia; (c) res judicata, and (d) prescription.
purpose of conferring juris upon the court where the
If no motion to dismiss has been filed, any of the grounds for the
amendment is no longer a matter of right.
dismissal provided in the rules governing motion to dismiss may be
SUMMONS pleaded as an affirmative defense in the answer. In the discretion of
the court, a preliminary hearing may be had on the defense relied
Summons is a coercive process which places the person, even the upon as if a timely motion to dismiss had been filed.
unwilling defendant, under the juris of the court. It also represents
the compliance with the rule on notice – an essential element of GR: dismissal of the complaint does not necessarily preclude the
constitutional due process. Service of summons represents the usual refiling of the same; EXC: certain grounds w/c may bar refiling: (a)
beginning of civil procedure. prior judgment; (b) statute of limitations; (c) claim or demand has
been extinguished; or (d) claim is unenforceable.
The summons orders the defendant to file an answer to the
complaint and also reminds him that, unless he does so, the court Motu Propio dismissal
may render a judgment against him by default and grant to the
GR: a court will wait to file a motion to dismiss even if the ground is
plaintiff the relief applied for.
known to it.
The summons and the copy of the complaint are to be served upon
the defendant in person but, if he cannot be served despite diligent EXC: (a) lack of juris over the subj matter; (b) litis pendentia; (c) res
efforts, summons may be served by an alternative mode called judicata; or (d) prescription.
substituted service.

Absent a voluntary appearance, it is the service of summons upon


Duty of the Court
the defendant w/c enables the court to acquire juris over his person
in those actions traditionally called in personam. Service of

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
The motion to dismiss is to be heard and after the hearing, the court a. Action for annulment of marriage;
may: b. Declaration of nullity of marriage;
c. Legal separation;
a. Grant the motion and dismiss the action/claim;
b. Deny the motion; or Default order shall not be applicable even if the defendants fails to
c. Order the amendment of the pleading. answer. Instead, the court shall order the prosecuting atty to
investigate won collusion exists between the parties and prevent
ANSWER fabrication of evidence.

The responsive pleading to the complaint. It gives notice to the Limit imposed on the extent of relief to be awarded
plaintiff as to w/c allegations in the complaint the defendant decides
to contest and put in issue. Answer may invoke both negative or A judgment rendered against a party in default shall not exceed or
affirmative defenses. be different in kind from that prayed for nor award unliquidated
damages.
Negative defense – specific denial of the material fact/s alleged in
the pleading of the claimant. Material averments not specifically B. COUNTERCLAIM
denied are deemed waived. If the answer is deemed to have failed
A pleading w/c sets forth a claim defending party may have against
to tender an issue, trial is completely unnecessary and the claiming
an opposing party.
party may file a motion for judgment on the pleadings and court may
direct a judgment based on the pleadings already filed. Compulsory Counterclaim – which a defending party has at the time
he files his answer, shall be contained therein.
Affirmative defense – essentially consists of a hypothetical
admission of the material allegations in the pleading of the claimant Permissive Counterclaim – does not have to be raised in the same
but, nevertheless, prevents or bars recovery by him. proceedings bec, by its nature, it could be invoke as an independent
action.
Failure of the defending party to file an answer entitles the claiming
party to file a motion to declare him in default. C. CROSS-CLAIM

A. DEFAULT A pleading containing the claim by one party against a co-part,


arising out of the same transaction or occurrence w/c is the subj
Effect
matter of the complaint.
Defending paty loses standing in court and is not allowed to take
D. THIRD-PARTY COMPLAINT
part in the trial.
A claim against a third person either for contribution, indemnity,
The court may proceed to render judgment granting the claiming
subrogation, or any other relief in respect of the plaintiff’s claim.
party such relief as his complaint may warrant unless, in its
Defendant may bring in the third person into the suit and implead
discretion, it requires the plaintiff to submit evidence on his claim.
him as a party by filing, with leave of court, a third-party complaint
Importance against him.

Court’s declaration of default should be preceded by a motion to E. REPLY


declare the said party in default together w/ proof of such failure.
It is the plaintiff’s responsive pleading to the answer of the
Rights of the person declared in default defendant. It is denying or alleging facts in denial or avoidance of
new matters alleged in the answer. Reply is not a compulsory
He is still entitled to notices of subsequent poceedings. He is also pleading. Failure to file reoly does not make the plaintiff in default.
accorded a relief from the order. He may, at any time after notice Failure to file reply will not result in the implied admission of the
thereof and before judgment, file a motion under to set aside the material allegations in the answer.
order or default, upon showing that his failure to answer is due to:
F. INTERVENTION
a. Fraud;
b. Accident; Under the Rules, if, at any time before judgment, a person, not a
c. Mistake; party to the action, believes that he has a legal interest in the matter
d. Excusable negligence; and in litigation in a case in w/c he is not a party, he may, with leave of
e. That he has a meritorious defense. court, file a complaint-in-intervention if he asserts claim against one

When default order not applicable or all the parties. On the other hand, if he unites w/ the defending

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
party in resisting a claim against said party, he may file an answer-in- 4. Signed by him; and
intervention. 5. Filed w/ the clerk of court.

PRE-TRIAL POST-JUDGMENT

After the last pleading has been served and filed, it is the duty of the The judgment is not the end for the losing party bec he is afforded
plaintiff to promptly move ex parte that the case be set for pre-trial. remedies against the adverse judgment.
a pre-trial is mandatory and failure to appear will result in adverse
Before the judgment becomes final and executory
consequences for the absent party. Here, parties shall consider the
possibility of an amicable settlement or submission of the case to a. Motion for Reconsideration (MR)
alternative modes of dispute resolution. b. Motion for New Trial (MNT)
c. An Appeal
During the pre-trial stage and, generally, at any time before pre-trial
or trial, the parties may obtain information from each other through If mnt is denied, aggrieved party may appeal from the judgment
the employment of devices, collectively known as discovery w/in the period for appeal following the so-called “fresh period”
procedures such as: rule.
a. Depositions; After the judgment becomes final and executory
b. Interrogatories to parties;
c. Request for admission; Party may no longer appeal bec the perio for appeal has already
d. Production and inspeciton of documents; and lapsed and judgment has become final and executory. The prevailing
e. Physical and mental examination. may thereafter w/in 5 years from its date of entry, file a motion for
the execution of judgment.
TRIAL
N.B. Losing party may still avail for extraordinary remedies:
During trial, the parties present their evidence on their claims and
defenses. a. Petition for Relief;
b. Action to Annul the Judgment;
If the defendant believes that, upon the facts and law, the plaintiff is c. Certiorari;
not entitled to relief, he may, instead of presenting his own d. Attack the judgment collaterally when the nullity of the
evidence, move for dismissal by filing a demurrer to evidence. jufgment is plain and evident on its face.
if the demurrer is denied, defendant still has the right to present his EXECUTION AND SATISFACTION OF JUDGMENT
evidence. If the demurrer is granted but on appeal the order of
dismissal is reversed, the defendant is deemed to have waived his When all the remedies are exhausted and the case is finally decided,
right to present evidence. the judgment of the court shall then be subject to execution. This is
the remedy afforded by procedural rules for the enforcement of the
A trial is not an indispensable stage. A judgment may be rendered judgment. It is the fruit, as well as the end of the action.
even w/o trial as when: (a) the case is premanently dismissed as a
consequence of a motion to dismiss; (b) rendered on the pleadings;
or (c) upon compromise.
II. Remedial Law and the Rules of Court
JUDGMENT
REMEDIAL LAW, defined.
It is the decision of the court and represents its official
determination of the respective rights and obligations of the parties The rules w/c provides the system for the proteciton of rights, the
to the case. The date of entry of judgment is also the finality of prevention of the violation of suh rights and the means of redress
judgment. The date of entry of the judgment finds relevance when for such violations.
the judgment is to executed or when a litigant files a pet for relief
SUBSTANTIVE LAW v. REMEDIAL LAW
from judgment.
SUBSTANTIVE REMEDIAL
Requisites:
Creates, defines, and regulates Lays down the methods by w/c
1. In writing; rights and duties concerning life, the rights and obli arising from
liberty or propety. substantive law are protected,
2. Personally and directly prepared by the judge;
enforced, and given effect.
3. Stating clearly the facts and the law on w/c it is based;

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
MAJOR ASPECTS OF REMEDIAL LAW Neypes v. CA

a. Civil Procedure; It is the sole prerogative to amend, repeal or even establish new rules for a
b. Criminal Procedure; more simplified and inexpensive process, and the speedy disposition of
cases.
c. Special Proceedings; and
d. Evidence. LIMITATIONS ON THE RULE-MAKING POWER OF THE SC
SCOPE OF CIVPRO IN THE ROC A. The rules shall provide a simplified and inexpensive procedure
a. Ordinary civil actions (R1-56); for the speedy disposition of cases;
b. Prov Rem (R57-61); B. The rules shall be uniform for courts of the same grade;
c. Special civil actions (R62-71). C. The rules shall not diminish, increase, or modify substantive
rights.
ROC are not laws since such rules do not originate from the
legislature. However, since they are promulgated by authority of POWER TO AMEND AND SUSPEND THE RULES
law, they have the force and effect of law, provided it is not in
conflic w/ positive law. The constitutional power of the SC to promulgate rules carries w/ it
the power to overturn judicial precedents on points of remedial law
PROSPECTIVE EFFECT OF THE ROC through the amendment of the ROC.

Rules of procedure, may be made applicable to actions pending and The courts have the power to relax or suspend technical or
undertermined at the time of their passage, and are deemed procedural rules or to except a case from their operation when
retroactive in that sense and to that extent. compelling reasons so warrant or the purpose of the justice requires
WHEN PROCEDURAL RULES DO NOT APPLY TO PENDING ACTIONS it.

G.R. may be made applicable to actions pending and undetermined FACTORS THAT WOULD WARRANT SUSPENSION
at the time of their pssage and is retroactive in that sense.
a. Existing of special or compelling reason;
EXC: the rule does not apply to the ff: b. Merits of the case;
c. Cause not entirey attributable to the fault/negligence of the
a. Statute itself/by necessary implications provides; party favored by the suspension/rules;
b. If applying the rule would impair vested rights;
d. Lack of any showing that the review sought is merely frivolous
c. When to do so would not be feasible/would work
and dilatory; and
injustice; or
e. Rights of the other party will not be unjustly prejudice thereby.
d. If doing so would involved intricae problems of due
process/impair the independence of the courts.

IV. Nature of the Philippine Courts


III. Rule Making Power of the Supreme Court
CLASSIFICATION OF COURTS
[Sec. 5(5), Art. VIII, 1987 Constitution]
Section 5. The Supreme Court shall have the following powers: XXX  Courts of General Juris - Those competent to decide their own
(5) Promulgate rules concerning the protection and enforcement of jurisdiction and to take cognizance of all kinds of cases, unless
constitutional rights, pleading, practice, and procedure in all courts, the otherwise provided by the law or Rules.
admission to the practice of law, the integrated bar, and legal assistance to
the underprivileged. Such rules shall provide simplified and inexpensive Courts of Special/Limited Juris – Those which have no power to
procedure for the speedy disposition of cases, shall be uniform for all courts
of the same grade, and shall not diminish, increase or modify substantive
decide their own jurisdiction and can only try cases permitted
rights. Rules of procedure of special courts and quasi-judicial bodies shall by statute.
remain effective unless disapproved by the Supreme Court. XXX

Echegaray v. Sec. of Justice


 Courts of Original Juris - Those courts in which, under the law,
The rule-making power of the Court has expanded. The Court for the first
actions or proceedings may originally be commenced.
time, was given the power to disapprove rules of procedure of special courts
and quasi-judicial bodies. But most important, the 1987 Consti took away the
power of Congress to repeal, alter or supplement rules concerning pleading, Courts of Appellate Juris - Courts which have the power to
practice and procedure. In fine, the power to promulgate rules of pleading, review on appeal the decisions or orders of a lower court.
practice, and procedure is no longer shared by the Court with the Congress,
more so w/ the executive.  Superior Courts - Courts which have the power of review or
supervision over another and lower court.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
Inferior Courts - Those which, in relation to another court, are CHAPTER II
lower in rank and subject to review and supervision by the
latter. JURISDICTION

 Courts of record – Those whose proceedings are enrolled and


w/c are boung to keep a written record of all trials and JURISDICTION, defined.
proceedings handled by them
Traditionally referred to as the power and authority of the court to
Courts not of record – Courts w/c are not required to keep a hear, try, and decide a case.
written record or transcript of proceedings held therein.
JURISDICTION IS NOT THE POWER OF THE JUDGE
 Constitutional courts – Those w/c owe their creation and
It is the court, not the judge, w/c by law, is vested w/ juris. The judge
existence to the Consitution and, therefore, cannot be
merely presides over the court. Thus, jurisprudence holds that
legislated out of existence or deprived by law of the jurisdiction
jurisdiction is not the authority of the judge but of the court.
and powers unqualifiedly vested in them by the Consti.
TEST OF JURISDICTION
Statutory courts – Those created, organized and w/ jurisdiction
exclusively determined by law. Has the law given the court the authority to take cognizance of a
particular case?
 Juris is classified based on its nature, as ffs:
ASPECTS OF JURISDICTION
a. General juris – the power to adjudicate all
controversies except those expressly withheld from a. Juris over the subj matter;
the plenary powers of the court. b. Juris over the parties;
c. Juris over the issues of the case; and
Special/limited juris – w/c restricts the court’s juris d. Juris over the res or the thing involved.
only to particular cases and subj to such limitations as
may be governed by law. DOCTRINES / PRINCIPLES

b. Original juris – the power of the court to take judicial Doctrine of Primary Juris – a remedy w/in the admin machinery
cognizance of a case instituted for judicial action for must be resorted to give the admin officers every opportunity to
the first time under conditions provided by law. decide a matter w/in his juris.

Appellate juris – authority of the court higher in rank IOW, if the determination of the case requires the expertise,
to reexamine the final order or judgment of the lower specialized trainings, and knowledge of an admin body, relief must
court w/c tried the case now elevated for judicial first be obtained in an admin proceedings.
review.
N.B. such remedy must be exhausted first before the court’s power
c. Exclusive juris – the power to adjudicate a case or of judicial review can be sought (doctrine of exhaustion of admin
proceeding to the exclusion of other courts at that remedies).
stage.
Exceptions:
Concurrent juris – w/c is the power conferred upon
1. Estoppel on the part of the party invoking the doctrine;
different courts, whether of the same or different
2. Challenged admin act is patently illegal, amounting to lack of
ranks, to take cognizance at the same stage of the
juris;
same case in the same or different judicial territories.
3. There is unreasonable delay or official inaction that will
JURISDICTION v. VENUE irretrievably prejudice the complaint;
4. Amount involved is relatively small;
Jurisdiction Venue 5. Question involved is purely legal;
Authority to hear and determine Place where the case is to be 6. Judicial intervention is urgent;
a case. heard and tried. 7. Application may cause great and irreparable damage;
Matter of substantive law. Matter of procedural law. 8. Controverted acts violate due-process:
Establishes a relation between A relation between plaintiff and 9. Issue on non-exhaustion has been rendered moot;
the court and the subj matter. defendant. 10. No other plain, speedy and andequate remedy;
Fixed by law and cannot be May be conferred by the act or 11. Stronf public interest is involved; and
conferred by the parties. agreement of the parties. 12. In quo-warranto proceedings.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

Doctrine of Adherence of Juris – once juris has attached, it cannot ERROR OF JURISDICTION v. ERROR OF JUDGMENT
be ousted by subsequent happenings or events. Once juris has been
acquired, retains that juris until finally disposes of the case. Error of juris – occurs when (a) the court exercises a juris not
coferred upon by law, or (b) the court/tribunal, although vested w/
IOW, once juris is vested, the same is retained up to end of the juris, acts in excess of its juris or w/ grave abuse of juris amounting
litigation. to lack of juris.

Doctrine of Ancillary (incidental) Juris – refers to the authority of an Correctible by certiorari.


office or tribunal to do all things necessary for the adminstration of
justice w/in the scope of its juris, and for the enforcement of its Error of Judgment – presupposes that the court is vested w/ juris
judgment and mandate. over the subj matter of the action but, in the process of exercising
that juris, it committed mistakes in the appreciation of the facts and
IOW, power of every court to adopt such means and perform such the evidence leading to an erroneous judgment.
acts necessary to carry its juris into effect.
Correctible by appeal.
Doctrine of Judicial Stability – one w/c precludes a court from
interfering by injunction w/ the regular orders of a co-equal court. AN ERRONEOUS JUDGMENT IS NOT VOID

Rationale; Where a court has juris, an erroneous decision cannot be deemed


void, although the error may be the subj of an appeal brought by the
A court that acquires juris over the case and renders judgment aggrieved party.
therein has juris over its judgment, to the exclusion of all other
coordinate courts. GR: judgment may be struck down at any time, even on appeal.

EXC: when party raising the issue is barred by estoppel.


A. JURISDICTION OVER THE SUBJECT MATTER HOW JURIS OVER SUBJ MTTER IS CONFERRED
DEFINITION Conferred by law w/c may be either the Constitution or a statute.
Referred to as the power of a particular court to hear the type of Hence, if one wants to know the court w/ juris over a complaint, one
case that is then before it. must look into the laws on juris, not the ROC or any procedural rule.

DUTY OF THE COURT TO DISMISS AN ACTION FOR LACK OF JURIS CONSEQUENCE OF THE RULE (COFERRED BY LAW)
OVER THE SUBJ MATTER It cannot be: (1) granted by the agreement of the parties; (2)
When it appears from the pleadings or the evidence on record that acquired, waived, enlarged, or diminished by an act or omission of
the court has no juris over the subj matter, the court shall dismiss the parties; or (3) conferred by the acquiescence of the courts.
the claim. It cannot be conferred by the admin policy of any court or confrred
Even if the question of juris over the subj matter was not raised by by a court’s unilateral assumption of juris.
either of the parties, the courts will have to first address such Juris cannot be conferred by consent or waiver or may not be
question before delving into the procedural and substantive issues changed by the mere agreement of the parties. It cannot be the subj
of the case. matter of a contract.
EFFECT OF LACK OF JURISDICTION OVER THE SUBJECT MATTER HOW JURIS IS DETERMINED
Proceedings conducted/decisions made by a court are legally void Juris is determined by the allegations in the complaint, as well as by
where there is an absence of juris over the subj matter. the character of the relief sought.
Void judgment can never be final and any writ of execution based on The allegations of the omplaint determine both the nature of action
it is, likewise, void. and the juris of the court.
N.B. when the court dismisses the complaint for lack of juris over CAPTION OF THE CASE IS NOT CONTROLLING
the subj matter, it is submitted that the only authority of the court is
to order such dismissal and not to refer or forward the case to The cause of action in a complaint is not what the title or
another court w/ the proper juris. designation of the complaint states, but that the allegations in the
body of the complaint define and describe.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

OMNIBUS MOTION RULE


The designation/caption is not controlling for it is not even
indispensible part of the complaint. It is a motion attacking a pleading, order, judgment, or proceeding. A
motion to dismiss, by seeking for the dismissal of a claim, definitely
DEFENSES AND EVIDENCE DO NOT DETERMINE JURIS
attacks a pleading. Hence a motion to dismiss is an omnibus motion.
Juris cannot be made to depend upon the defenses set up in the
It shall include all objections then available, and all objections not so
answer, in a motion to dismiss or in an MR.
included shall be deemed waived.
This has to be so, for ow, the ends of justice would be frustrated by
making the sufficiency of this kind of action dependent upon the B. JURISDICTION OVER THE PARTIES
defendant.
DEFINITION
THE AMOUNT AWARDED DOES NOT DETERMINE JURIS
Refers to the power of the court to make decisions that are binding
Juris does not depend on the amount utlimately substantiated and on persons. The legal power of the court to render a personal
awarded by the trial court. judgment against a pary to an action or proceeding.
Illustration: HOW JURIS IS ACQUIRED
A complaint seeking for the payment of P1M is filed w/ the RTC, but Depends on whether the party is the plaintiff or defendant.
after considering the evidence presented, the court rendered a
judgment for only P300K, an amount w/in the juris of the MTC if Plaintiff – as soon as he files his complaint or petition.
originally filed, the RTC did not lose juris over the action.
Defendant – either by (1) voluntary appearance in court and his
However, the rule does not apply in the reverse. submission to its authority or (2) service of summons.

Illustration: VOLUNTARY APPEARANCE

A complaint for recovery of a loan of P300K is filed in the MTC but It must be the kind that amounts to a voluntary submission to the
after consideration of the evidence, it is shown that the amout juris of the court.
recoverable is P1M, an amount w.in the juris of the RTC if originally
GR: submission to the court’s juris takes the form of an appearance
filed, the MTC cannot render judgment for P1M for lack of juris.
that seeks affirmative relief (such as filing of motions to admit
OBJECTIONS TO JURIS OVER SUBJ MATTER answer, additional time to file an answer, for reconsideration of a
default judgment or lifting of default) and when he participates in
The earliest opportunity of a party to raise the issue of juris is in a the trial despite improper service of summons.
motion to dismiss filed before the filing of the answer bec lack of
juris over the subj matter is a ground for a motion to dismiss. EXC: relief sought is for the purpose of objecting to the juris of the
court over the person of the defendant.
Juris over subj matter may be raised at any stage of the proceedings,
even first time on appeal. N.B. objection to the juris of the court over the person of the
defendant must be explicilty made o made in an unequivocal
Reason: manner. Failure to do so constitutes a voluntary submission.
Juris is conferred by law, and lack of it affects the very authority of EFFECT OF PLEADING ADDITIONAL DEFENSES
the court to take cognizance of and render judgment on the action.
The rule allows the raising of defenses in additiona to lack of juris
EFFECT OF ESTOPPEL ON OBJECTIONS TO JURIS over the person of the defendant, w/o creating an inference of a
voluntary submission to the juris of the court.
While it I true that juri over the subj matter may be raised at any
stage of the proceedings since it is conferred by law, it is,
nevertheless, settled that a party may be barred from raising it on C. JURISDICTION OVER THE ISSUES OF THE CASE
the ground of estoppel.
DEFINITION
Tijam v. Sibonghanoy
The power of the court to try and decide the issues raisedin the
The SC barred a belated objection to juris that was raised by a party only pleadings of the parties.
when an adverse decision was rendered by the lower court against it and bec
it raised the issue only after almost 15 yrs and after seeking affirmative relied
from the court and actively participating in all stages of the proceedings.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

Issue – a disputed point or quesiton to w/c parties to an action have


narrowed down their several allegations and upon w/c they are D. JURISDICTION OVER THE RES
desirious of obtaining a decision.
DEFINITION
HOW JURIS IS CONFERRED
Refers to the court’s juris over the thing or the property w/c is the
Conferred and determined by the allegations in the pleadings of the subject of the action.
parties. The pleadings present the issues to be tried and determine
The term res includes an object, subj matter or status.
whether or not the issues are of fact or of law.
This type of juris is necessary when the action is one in rem or quasi
An issue arises bec a material allegation of a claiming party is
in rem. When the action is in personam, juris over the res is not
specifically denied by the defending party.
sufficient to authorize the court to render a judgment against bec
It may also be conferred by stipulation of the parties. Moreover, it what is required in such action is juris over the person of the
may likewise be coferred by waiver or failure to object to the defendant.
presentation of evidence on a matter not raised in the pleadings.
HOW ACQUIRED
QUESTIONS OF LAW v. QUESTIONS OF FACT
May be acquired by the court by placing the property or thing under
Test: whether the court can determine the issue raised w/o its custody (custodia legis) or constructive seizure. [Ex: attachment
reviewing or evaluating the evidence. of property].

Q of L Q of F May also be acquired through statutory authority conferring upon it


Doubt/difference arises as to Doubt/diff arises as to the the power to deal w/ the property/thing. [suits involving the status
what the law is on a certain set truth/falsehood of the alleged of the parties].
of facts. facts.
EXTENT OF RELIEF WHEN JURISDICTION IS ONLY OVER THE RES
Must not involve an examination Once it is clear that the issue
of the probative value of the invites a review of the evidence Relief granted must be confined to the res, and the court cannot
evidence presented by the presented. lawfully render judgment against the defendant.
litigants or any of them. The
resolution of the issue must rest Thus, if in an action to foreclose a real estate mortgage, where the
solely on what the law provides juris acquired by the courti sonly over the res and not over the
on the given set of person of the defendant, the relief of the creditor extends only to
circumstance. the property foreclosed.
No need for reviewing or There is a need to review and
evaluating the evidence. evaluate the evidence.
JUDICIARY REORGANIZATION ACT
WHEN AN ISSUE ARISES EVEN IF NOT RAISED IN THE PLEADINGS
BATAS PAMBANSA BLG. 129
Issues not raised in the pleadings are tried with the express/implied
consent of the parties, they shall be treated in all respects as if they
had been raised in the pleadings. A. JURISDICTION OF THE SUPREME COURT
Pleadings may be amended to conform to the evidence but the BASIC PRINCIPLES
failure to so amend does not affect the result of the trial of these
issues bec the pleadings are deemed impliedly/constructively GR: The SC is not a trier of facts. Only questions of law are generally
amended to embody the issues tried w/ the consent of the parties. reviewed by the SC.

Illustration: EXC: (a) when the findings of facts of the trial court and the
reviewing court are conflicting; (b) when the findings of the court
A complaint for a sum of money filed before the RTC, the plaitiff did below are grounded entirely on speculation, surmises or
not allege the making of a demand for payment before commencing conjectures.
suit but, during the trial, plaintiff duly offered in evidence a letter of
demand to prove the making of an extrajudicial demand on the It is not its function to analyze and wiegh the evidence that the
defendant, & the letter was admitted in evidence w/o objection of lower courts passed upon.
the defendant, it is as if the matter of demand was raised.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

CASES HEARD EN BANC


2. CSC:
a. Cases involving the constitutionality of a treaty, international 3. Central Board of Assessment Appeals;
or executive agreement, or law; 4. NLRC;
b. Cases required to be heard en banc; 5. Other quasi-judicial agencies.
c. Cases involving the constitutionality, application, or operation b. w/ CA and RTC:
of PDs, proclamations, orders, instructions, ordinaces, and i. Pets for certiorari, prohibition or mandamus against
others; courts of the first level and other bodies; and
d. Cases where requierd number in the division is not obtained; ii. Pets for habeas corpus and quo warranto.
e. Cases involving a modification or reversal of a doctrine or c. w/ RTC:
principle of law; i. Actions against ambassadors, other pub ministers, and
f. Cases involving the discpline of the judges of lower courts; consuls.
g. Contests relating to the election, returns or qualifications of
the Pres and V-P. IV. Appellate Juris
a. Pets for review on certiorari (Rule 45):
PROCEDURE WHEN EN BANC IS EQUALLY DIVIDED i. CA;
ii. CTA;
Where the opinion of the SC en banc is equally divided, or the
iii. SB; and
necessary majority cannot be had, the case shall again be
iv. RTC in cases involving:
deliberated.
1. Constitutionality or validity of a treaty, intl or exec
If after such deliberation no decision is reached: agreement, law, PDs, procalamation, order,
insruction, ordinance, or regualtion.
1. Original action shall be dismissed. 2. Legality of tax , impost, assessment, toll or a penalty
2. Appealed cases, the judgment or court shall stand in relation thereto;
affirmed. 3. Juris of a lower court; and
3. On all incidental matters, petition/motion shall be denied 4. Errors or questions of law.
JURISDICTION

I. Original Juris B. JURISDICTION OF THE COURT OF APPEALS


a. Pet for certiorari;
BASIC PRINCIPLES
b. Pet for prohibtion;
c. Pet for mandamus; CA may sit en banc only for the purpose of exercising admin,
d. Pet for quo warranto; ceremonial, or other non-adjudicatory functions
e. Pet for habeas corpus;
f. Disciplinary proceedings against members of the judiciary POWER TO TRY AND CONDUCT HEARINGS
and attys.
Basically it is not a trial court. However, under the law it has power
g. Cases affecting ambassadors, oher pub ministers, and
to try cases and conduct hearings, receive evidence, and perform
consuls;
any and all acts necessary to resolve factual issues in cases falling
h. Pet for writ of amparo and writ of habeas data
not only w/in its original and appellate juris.

II. Exclusive Original Juris – pet for certiorari, prohibition, or This authority includes the power to grant and conduct new trials or
mandamus against; further proceedings.
a. CA;
b. CTA; LIMITATIONS ON ITS POWER TO CONDUCT TRIALS/HEARINGS
c. SB;
a. Must be continuous;
d. COMELEC;
b. Must be completed w/in 3 months, except when extended
e. COA
by the Chief Justice.

III. Concurrent Original Juris (subj to the doctrine of heirarchy of JURISDICTION


courts)
a. w/ CA: I. Exlusive Original Juris
i. Pet for certiorari, prohibition, or mandamus against: a. Actions for annulment of judgments of RTCs.
1. RTC;

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

II. Concurrent and Original Juris c. All actions admiralty and maritime juris where demand or
a. w/ SC: claim exceeds P300K outside Metro Manila, or in Metro
i. Pet for certiorari, prohibition, or mandamus against: Manila, where such demand or claim exceeds P400K;
1. RTC; d. All matters of probate, both testate and intestate, where
2. CSC: the gross value of the estate exceeds P300K outside MM
3. Central Board of Assessment Appeals; or, in probate matters in MM, where such gross value
4. NLRC; exceeds P400K;
5. Other quasi-judicial agencies. e. In all actions involving the contract of marriage and
b. w/ SC and RTC: marital relations (where there are no Fam Courts);
i. Pets for certiorari, prohibition or mandamus against f. All cases not w/in the exclusive juris of any court, tribunal,
courts of the first level and other bodies; and person or body exercising judicial or quasi-judicial funcs;
ii. Pets for habeas corpus and quo warranto. g. All civil actions and spec pro falling w/in the exclusive orig
juris of the Juvenile and Domestic Relations Court and of
III. Exclusive Appellate Juris the CAR as not provided by law;
a. Ordinary appeals from: h. All other cases in w/c the demand or the value of the
i. Judgment of the RTC; and property in controversy exceeds P300K outside MM, or in
ii. Family Courts. MM, where the demand exceeds P400K, exclusive of int,
b. Appeal by pet for review from: damages of whatever kind, atty’s fees, litigatation exp and
i. Decisions, reso, orders or awards of the CSC; and costs.
ii. Other bodies mentioned in Rule 43.
c. Pets for review from the judgment of the RTC rendered in II. Concurrent Original Juris
the exercise of its appellate juris. a. w/ SC:
i. Actions affecting ambassadors, other pub ministers,
and consuls;
C. JURISDICTION OF THE REGIONAL TRIAL COURT
b. w/ SC and CA:
RTC AS A COURT OF GENERAL JURIS i. Pets for certiorari, prohibition, and mandamus against
courts of the first level and other bodies; and
The RTC is a court of general juris bec all cases, the juris of w/c is not ii. Pets for habeas corpus and quo warranto.
specifically provided by law to be w/in the juris of any other court
falls w/in the juris of the RTC. III. Appellate Juris
The designation of certain courts as special commersial courts is a. Decisions of the RTC exercising appellate juris ovaer all
only to streamline the workload of the RTC. Such courts designated cases decided by the MTC (appealable by pet for review).
as special commercial courts are still considered courts of general
juris. IOW, the designation of a branch of the RTC as a special D. JURISDICTION OF THE FAMILY COURT
commercial court does not diminsh its power as a court of general
juris. Exclusive Original Juris

Theis designation was not made by statute but only by an internal SC a. Petitions for guardianship, custody of children, habeas corpus
rule under its authority to promulgate rules governing matters of in relation to the latter;
procedure and its constitutional mandate to supervise the b. Petitions for adoption of children and the revocation thereof;
administration of all courts and the personnel thereof. c. Complaints for annulment of marriage, declaration of nullity of
marriage and those relating to marital status and property
JURISDICTION relations of husband and wife or those living together under
I. Exclusice Original Juris different status and agreements, and petitions for dissolution
a. All civil actions in w/c the subj of the litigation is incapable of conjugal partnership of gains;
of pecuniary estimation; d. Petitions for support and/or acknowledgment;
b. All civil actions w/c involve title to, or possession of, real e. Summary judicial proceedings brought under the provisions of
property or an int therein, where the assessed value of Executive Order No. 209 (Family Code of t he Philippines);
such property involved exceeds P20K outside Metro f. Petitions for declaration of status of children as abandoned,
Manila, or for civil actions in Metro Manila where such dependent or neglected children, for the voluntary or
value exceeds P50K (exc forcible entry and unlawful involuntary commitment of children, and for the suspension,
detainer of land or bldgs – MTC); termination, or restoration of parental authority under P.D.
603, Executive Order No. 56, s. 1986, and other related laws;

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

g. Petitions for the constitution of t he family home; and


The determining jurisdictional element is the assessed value of the
h. Cases of domestic violence against women and children, as
property in question (RTC – exeeds P20K; MTC – does not exceed
defined therein, but which do not constitute criminal offenses
P20K for outside MM).
subject to criminal prosecution and penalties.
An assessed value can have reference only to te tax rolls in the
municipality where the proeprty is located and is contained in the
E. JURISDICTION OF THE MUNICIPAL TRIAL COURT tax declaration.
DEMAND NOT EXCEEDING P300K OR P400K JURISDICTION
MTC exercises exclusive orig juris over civil actions where the value I. Exlcusive Original Juris
of the personal property, estate or amt of the demand does not a. Actions involving personal property valued at not more
exceed P300K for outside MM, or P400K for MM. than P300K or, in Metro Manila, P400K;
Where demand exceeds the amts mentioned, the RTC has exclusive b. Actions demanding sums of money not exceeding P300K
orig juris. or, in Metro Manila, P400K, exclusive of interest, damages,
attorney's fees, litigation expenses, and costs;
Jurisdictional amt does not include the ff: c. Actions in admiralty and maritime jurisdiction where the
demand or claim does not exceed P300K or, in Metro
a. Interest;
Manila, P400K, exclusive of interest, damages, attorney's
b. Damages of whatever kind;
fees, litigation expenses, and costs;
c. Atty’s fees;
d. Probate proceedings, testate or intestate, where the gross
d. Litigation expenses; and
value of the estate does not exceed P300K or, in Metro
e. Costs.
Manila, P400K;
TOTALITY RULE e. Forcible entry and unlawful detainer cases;
f. Actions involving title to or possession of real property, or
Where there are several claims or causes of actions between the any interest therein, where the assessed value does not
same or different parties, embodied in the same complaint, the amt exceed P20K or, in Metro Manila, P50K, exclusive of
of the demand shall be the totality of the claims in all the causes of interest, damages, attorney's fees, litigation expenses, and
action, irrespective of whether the causes of action arose out of the costs; and
same or different transactions. g. Provisional remedies where the principal action is within
their jurisdiction.
Illustration:

DD owes PP the ff: P250K representing the balance on the purchase II. Delegated Juris
price of car; P250K based on a simple, P275K also based on another
Cadastral or land registration cases covering lots where there is no
loan. All debts are due and a demand to pay went unheeded.
controversy or opposition, or contested lots the value of which does
If an action is filed and the causes of action are joined, the basis of not exceed P 100,000, as may be assigned by the Supreme Court.
juris would be the total amount due. The RTC in this case has juris. If
III. Special Juris
each debt is made the subject of a separate complaint, the MTC, by
reason of the amount, has juris. Petitions for habeas corpus in the absence of all the Regional Trial
Judges in the province or city.
ACCION PUBLICIANA
IV. Summary Procedure
A plenary action for recovery of possession in an ordinary civil
a. Forcible entry and unlawful detainer cases irrespective of
proceeding, in order to determine the better and legal right to
the amount of damages or unpaid rentals sought to be
possess, independelty of title. Objective is to recover possession not
recovered; and
ownership.
b. All other court cases, except probate proceedings, where
ACCION REIVINDICATORIA the total claim does not exceed P 10,000, exclusive of
interest and costs.
A suit w/c has for its object the recovery of possession over the real
property as owner. It involves recovery of ownership and possession
based on said ownership.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

Evidences are requried to be attached w/ the Statement of Claim. If


SMALL CLAIMS CASES his claim is based on an actionable document, he is also required to
attach 2 duly copies of such doc.
A.M. NO. 08-8-7-SC
ATTACHMENT/SUBMISSION OF EVIDENCE
PURPOSE
Submitting every evidence is a mandatory requirement.
To provide an inexpensive and expeditious means to settle disputes
GR: evidence not attached shall not be allowed during the hearing.
over small amounts.
EXC: he shows to the court that he has good cause for the
The small claims process is designed to function quickly and
submission of additional evidence.
informally. There are no attys allowed, unless he is the plaintiff or
defendant. N.B. non-submission of required affidavits wil case the immediate
dismissal of the claim.
There are no formal pleadings filed and strict legal rules on evidence
do not apply. Affidavits attached are required to state only facts of direct
personnal knowledge of the affiant or facts based on authentic
COURT TAKING COGNIZANCE OF SMALL CLAIMS CASES
records. Failure to follow this requirement will make the affidavits
Are cognizable by the MTC where the value does not exceed P300K, inadmissible and result in their being expunged from the record.
exclusive of int and costs. Claim must be purely civil in nature and is
Rules do not prohibit joinder of causes of action. Separate claims
soley for the payment or reimbursement of sum of money.
arising from distinct causes of action may be joined in a single
TO BE COVERED BY THE RRSCC statement of claim provided the total amount does not exceed
P300K.
The claim or demand may be for money owed under any of the ff:
Upon filing of the claim, plaintiff shall pay the docket and other legal
a. Contract of lease; fees.
b. Contract of loan;
c. Contract of services; VENUE OF SMALL CLAIMS CASES
d. Contract of sale; or
Shall be filed in the place following the rules on venue (Rule 4, ROC).
e. Contract of mortgage.
This is bec the ROC applies suppletorily to small claims cases but
Claim may also be for liquidated dmages arising from contract and a only insofar as they are inconsistent w/ A.M. NO. 08-8-7-SC.
claim for the enforecement of a brgy amicable settlement or an
PROCEDURE
arbitration award involving a money claim.
a. Upon receiving the Statement of Claim, court shall determine
CLAIMS FOR DAMAGES
first if the claim is under the rules of small claim cases. If not,
The revised rules still allow a claim for damages in an amt not shall be dismissed. If yes, case shall be re-docketed under the
exceeding P300K provided damages claimed are: appropriate procedure;
b. If the case filed is beyond its juris bec RTC w/c should take
a. Are liquidated; and cognizance, the case has to be dismissed for lack of juris;
b. Arise from a contract. c. The court then examines the allegations from the Statement
of Claims and the attached evidence. If it finds a ground for
Recovery of unliquidated damages, even if arising from a contract,
dismissal, it should do so outright. No motion to dismiss.
cannot be brought under the rules on small claims caes.
Court is required to state if the dismissal is w/ or w/o
Liquidated damages – has reference to the amount specified in the prejudice;
cotnract as the compensation an aggrieved party should receive in d. If no grounds for dismissal, the shall now issue summons
case the other party breaches the agreement. accompanied by the Small of Claim and all other docs
submitted by plaintiff;
COMMENCEMENT OF SMALL CLAIMS CASES e. Response shall be filed accompanied by certified photocopies
It is commenced by fillin up and filing a form called a Statement of of docs, as well as affidavits of witnesses and other evidece
Claim. This form, w/c should be verified, is to be accompanied by a in support thereof;
Cert. Against Forum Shopping, Splitting a Single Cause of Action, and f. Response may be accompanied by counterclaim, compulsory
Multiplicity of Suits. or permissive, as long as claim is w/in the coverage;

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

g. Failure of defendant to appear, court shall render judgment b. All other cases where the total amt of the plaintiff’s claim
on the day set for hearing if the defendant also fails to does not exceed P100K outside MM or does not exceed
appear on the day of the hearing; P200K w/in MM, exlcusive of (i) int.; and (ii) costs.
h. If he appears, the court shall ascertain his defenses and c. Probate proceedings are not covered.
proceed to hear or adjudicate the case on the same day as if
a Response has been filed; PLEADINGS ALLOWED
i. Failure of plaintiff to appear, shall be a cause for the a. Compalint;
dismissal (w/o prejudice) of the Statement of Claim. If b. Compulsory counterclaim pleaded in the answer;
defendant appears in the absence of plaintiff, he shall be c. Cross-claim pleaded in the answer; and
entitled to judgment on his permissive cc, not on his d. Answer to these pleadings.
compulsory;
j. During the hearing, judge shall first exert efforts to bring the VERIFICATION
parties to an amicable settlement of their dispute;
All pleadings covered by sumpro shall be verified.
k. If efforts of settlement fail, hearing shall immediately
proceed; PROHIBITED MOTIONS AND PLEADINGS
l. Any settlement shall be reduced into writing, signed by the
parties and submitted to the court for approval; a. Motion to dismiss, except: (a) failure to comply w/ brgy
m. After the hearing, the court shall render its decision w/in 24- conciliation proceedings, and (b) lack of juris over the subj
hrs from termination of the hearing, decision shall matter;
immediately be entered by the clerk of court; b. Motion for bill of particulars;
n. When the decision is rendered, execution shall issue upon c. Motion for new trial, recon of a judgment, reopening of
motion. trial;
d. Pet for relief from judgment;
PROHIBITED MOTIONS e. Motion for extention of time to file pleadings, affidavits, or
any other paper;
a. Motion to dismiss the Statement of Claim/s;
f. Memoranda;
b. Motion for bill of particulars;
g. Pet for certiorari, mandamus, or prohibition against any
c. Motion for new trial, or for recon of a judgment, or for
interlocutory order issed by the court;
reopening of trial;
h. Motion to declare defendant in default;
d. Pet for relief of judgment;
i. Dilatory motions for postponement;
e. Motion for estension of time to file pleadings, affidavits or
j. Reply;
any other paper;
k. 3rd party complaints; and
f. Memoranda;
l. Interventions.
g. Pet for certiorari, mandamus or prohibition against any
interlocutory order issued by the court; N.B. pet for certiorari against an interlocutory order is prohibited in
h. Motion to declare defendant in default; cases subj to summary procedure except when the court gravely
i. Dilatory motions for postponements; abused its discretion.
j. Reply and rejoinder;
k. 3rd pary complaints; and OUTRIGHT DISMISSAL; SUMMONS
l. Interventions
The court may dismiss the case outright on any of the grounds for
the dismissal of a civil action apparent from an examination of the
allegations in the pleadings and the evidence attached thereto.
REVISED RULES ON SUMMARY PROCEDURE
If no ground for dismissal is found, the court shall forthwith issue
A.M. NO. 09-6-8-SC summons stating that the sumpro applies to the case.

SCOPE ANSWER

The rules shall govern the procedure in the MTC. W/in 10 days from service of summons, the defendant shall file his
answer to the complaint and serve a copy thereof on the plaintiff.
CIVIL CASES SUBJ TO SUMPRO Answer should contain affirmative and negative defenses
applicable.
a. Cases of forcible entry and unlawful detainer irrespective of
the amt of damages/unpaid rentals sought to be recovered;
and

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

Defenses not pleaded are deemed waived. The only defense not Rendition of judgment – w/in 30 days after receipt of the last
deemed waived is lack of juris over the subj matter. affidavits and position papers, or the expiration of the period for
filing the same, the court shall render judgment.
Cross-claims and compulsory cc not asserted in the answer shall be
considered barred. APPEAL

Answer to cc or c-c shall be filed and served w/in 1 days from service Judgment or final order of the MTC shall be appealable to the
of the answer. appropriate RTC. RTC shall decide the appeal based on the entire
record of the proceedings held in the court of origin and such
EFFECT OF FAILURE TO ANSWER
memoranda and/or briefs as may be submitted by parties or
Court, motu propio, or on motion of the plaintiff, shall render required by RTC.
judgment as may be warranted by the facts alleged in the
Decision of the RTC shall be immediately executory, w/o prejudice to
complaint.
a further appeal.
N.B. motion to declare defendant in default is prohibited.
Decision of the RTC shall be appealable to CA by pet for review on
Judgment rendered shall be limited to what is prayed for in the error of fart or law (Rule 42, ROC).
compalint.

PRELIMINARY CONFERENCE; EFFECTS OF FAILURE TO APPEAR


RULE 1
Prelim conference shall be held not later than 30 days after the
GENERAL PROVISIONS
answer is filed. Rules on pretrial in ordinary cases is used unless
inconsistent with the herein rules. SECTION 1.
Failure of plaintiff to appear shall be a cause for dismissal of his Section 1. Title of the Rules. – These Rule shall be known and cited as the
complaint. If the defendant appears while plaintiff is absent, Rules of Court.
defendant shall be entitled to judgment on his cc.
SECTION 2.
If defendant is entitled to judgment, the court, motu propio, or on
Section 2. In what courts applicable. – These Rules shall apply in all the
motion of the defendant shall render judgment as may be courts, except as otherwise provided by the Supreme Court.
warranted by the facts aleged in cc and limited to what is prayed for.
SECTION 3.
However, c-c shall be dismissed.
Section 3. Cases governed. – These Rules shall govern the procedure to be
If there is only 1 defendant and he fails to appear, shall cause the observed in actions, civil or criminal and special proceedings.
plaintiff to be entitled to judgment. This also means that the court, (a) A civil action is one by which a party sues another for the enforcement
motu propio, or upon motion of the plaintiff render judgment as or protection of a right, or the prevention or redress of a wrong. A civil
may be warranted by the facts alleged in the complain. action may either be ordinary or special. Both are governed by the rules
for ordinary civil actions, subject to the specific rules prescribed for a
Judgment shall not, however, be rendered where one of 2/more special civil action
(b) A criminal action is one by which the State prosecutes a person for an
defendants who are sued under a common cause of action and who act or omission punishable by law.
have pleaded a common defense shall appear at the prelim (c) A special proceeding is a remedy by which a party seeks to establish a
conference. status, a right, or a particular fact.

SUBSEQUENT PROCEEDINGS ACTIONS OR PROCEEDINGS GOVERNED BY THE ROC

Record of prelim conference – w.in 5 days after the termination of The ROC shall govern the procedure to be observed in civil actions,
the prelim conference, court shall issue an order stating the matters criminal actions, and special proceedings and shall also apply in all
taken up therein. courts, exc as ow provided by the SC.

Submission of affidavits and position papers – w/in 10 days from


receipt of the order above, parties shall submit the affidavits of their SECTION 4.
witnesses and other evidence on the factual issus defined in the Section 4. In what case not applicable. – These Rules shall not apply to
order. election cases, land registration, cadastral, naturalization and insolvency
proceedings, and other cas es not herein provided for, except by analogy or
N.B. affidavits to be submitted shall state only facts of direct in a suppletory character and whenever practicable and convenient.
personal knowledge of the affiants w/c are admissible in evidence.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

ACTIONS/PROCEEDINGS NOT GOVERNED BY ROC Strict and rigid application of the rules, especially on technical
matters, w/c tend to frustrate rather than promote substantial
GR: Shall not apply to the ff cases:
justice, must be avoided.
a. Election cases;
RULE ON LIBERAL CONSTRUCTION
b. Land registration cases;
c. Cadastral cases; Compliance w/ the procedural rules is still the general rule, and
d. Naturalization cases; and abandonment thereof should only be done in the most exceptional
e. Insolvency proceedings. circumstances.

EXC: above cases may apply by: The parties praying for the liberal interpretation of the rules must be
able to hurdle that heavy burden of proving that they deserve an
a. Analogy; or
exceptional treatment.
b. In a suppletory character and whenever practicable and
convenient.

The ROC are likewise unavailing in cases before quasi – judicial and RULE 2
admin bodies. Accordingly, they are not bound by the technical
niceties of law and procedure and the rules obtaining in the courts CAUSE OF ACTION
of law.
SECTION 1.
Section 1. Ordinary civil actions, basis of. – Every ordinary civil action must
SECTION 5. be based on a cause of action.

Section 5. Commencement of action. – A civil action is commenced by the IMPORTANCE OF A CAUSE OF ACTION (COA)
filing of the original complaint in court. If an additional defendant is
impleaded in a later pleading, the action is commenced with regard to him W/o a coa, one cannot, as a rule, seek judicial relief for a violation of
on the dated of the filing of such later pleading, irrespective of whether the one’s rights.
motion for its admission, if necessary, is denied by the court.
ACTION v. CAUSE OF ACTION
COMMENCEMENT OF AN ACTION
Action – the suit filed in court for the enforcement or protection of a
Such action may be commenced by filing the complaint by
right, or the prevention or redress of a wrong.
registered mail. Hence, if t he complaint was duly sent to the proper
court by registered mail within the prescriptive period and in COA – basis of the action filed.
accordance with the requirements of Sec. 3, Rule 13, the fact that
said complaint, as mailed, was actually received by the clerk of said
court after the lapse of the prescriptive period is immaterial as the SECTION 2.
date of mailing is considered the date of the filing of said complaint.
Section 2. Cause of action, defined. – A cause of action is the act or omission
However, if the requisite docket fee was actually paid, either by which a party violates a right of another.
personally or also by mail, subsequent to the mailing of said MEANING AND ELEMENTS OF COA
complaint, the date of such payment or the mailing of said amount
therefor shall be considered as the date of the filing of the complaint A coa is the act or omission by w/c a party violates a right of
the docket fee to be paid due to an initially honest difference of another.
opinion as to the nature of the action, the plaintiff was permitted to
Requisites:
subsequently complete the payment by paying the difference.
a. Legal right in favor of the plaintiff;
b. Correlative duty of the defendant to respect such right; and
SECTION 6. c. An act or omission by such defendant in violation of the right
Section 6. Construction. – These Rules shall be liberally construed in order to of the plaintiff w/ resulting injury or damage to the plaintiff
promote their objective of securing a just, speedy and inexpensive for w/c the latter may maintain an action for recovery of relief
disposition of every action and proceeding.
from the defendant.
PURPOSE OF THE RULE ON LIBERAL CONSTRUCTION
Although the first 2 elements may exist, a coa arises only upon the
It recognizes that rules of procedure are mere tools designed to occurrence of the last element.
facilitate the attainment of justice.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

Complaint must also clearly state the coa in order for a complaint to COA BASED ON CONTRACT
be procedurally acceptable.
Elements:
A complaint states a coa if it sufficiently avers the existence of the 3
elements of a coa. If the allegations of the complaint do not state a. Existence of a contract; and
the concurrence of the 3 elements, the complaint is vulnerable to a b. Breach of the contract.
motion to dismiss. IOW, the mere proof of the existence of the contract, and the failure
FAILURE TO STATE COA AND LACK OF A COA of its compliance justify, prima facie, a corresponding right to relief.

Failure to state coa and lack of coa are distinct grounds to dismiss a COA BASED OF VICARIOUS LIABILITY OF AN EMPLOYER
particular action. Negligence is an element of a quais-delict, must be alleged and
Failure to state coa – insufficiency of the allegations in the pleading. proved but the negligence of those persons described under Art.
2180, CC although based on quasi-delict, is presumed.
Allegations do not completely spell out the elements of a
particular coa. Dismissal for failure to state coa may be Doctrine of Vicarious Liability – certain person such as the father,
raised through a motion to dismiss under Rule 16. It is a mother, guardian, employers, among others are, under specified
ground for dismissal invoked before the defendant files a conditions, liable for the acts of persons for whom they are
responsive pleading. Dismissal is w/o prejudice to the responsible.
refiling. N.B. their liability ceases only when there proof of the observance of
Lack of coa – insufficiency of the factual basis for the action. the diligence required of a good father of a family to prevent the
damage.
Applies to a situation where the evidence failed to prove
the coa alleged in the pleading. Ground for dismissal, using COA FOR PARTITION RAISING ISSUE OF OWNERSHIP
a demurrer to evidence under Rule 33, after the plaintiff An action for partition is premised on the existence or non-existence
completed presenting the evidence. of co-ownership between parties. Unless and until the issue co-
Dismissal constitutes res judicata and will bar future suits ownership is resolved, it would be premature to effect a partition of
based on the same coa. an estate.

TEST ON WON COMPLAINT STATES A COA


SECTION 3.
“Admitting the truth of the facts alleged, can the court render a valid
judgment in accordance w/ the prayer?” Section 3. One suit for a single cause of action. – A party may not institute
more than one suit for a single cause of action.
In determining won a coa is sufficiently stated, the statements in the
complaint are to be considered. SECTION 4.
Section 4. Splitting a single cause of action; effect of. – If two or more suits
Sufficiencey of the statement of the coa must appear on the face of
are instituted on the basis of the same cause of action, the filing of one or a
the complaint and its existence may be determined only by the judgment upon the merits in any one is available as a ground for the
allegations in the complaint. dismissal of the others.

In some other cases, however, the court considered the docs REASON FOR PROHIBITION
attached to the complaint to truly determine sufficiency of the coa.
Splitting of a single coa – is the act of instituting 2/mor suits on the
IMPORTANCE OF THE ALLEGATIONS IN THE COMPLAINT basis of the same coa.

The nature of an action is not determined by the caption of the It is discouraged bec:
complaint, but by the allegations therein together w/ the reliefs
a. It breeds multiplicity of suits;
prayed for.
b. Clogs court dockets;
EFFECT OF A FINDING THAT THE COMPLAINT STATES A COA c. Leads to vexatious litigation;
d. Operates as an instrument of harassment; and
Claiming party has the obligation to offer evidence to support the e. Generates unnecessary expenses to the parties.
allegations constituting the elements of his coa.
It applies not only to complaints but also to cc and c-c.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

Above rule does not apply to situtation where the claim for damages
arose out of separate acts committed by the defendant after the SECTION 5.
occupancy of the premises subj of the action. Section 5. Joinder of causes of action. – A party may in one pleading assert, in
the alternative or otherwise, as many causes of action as he may have
A coa for the reconveyance of title over a property does not inlcude against an opposing party, subject to the following conditions:
a coa for forcible entry or unlawful detainer. They are distinct coa.
a. The party joining the causes of action shall comply with the rules on
When the pendency of an action for reconveyance does not divest joinder of parties;
the MTC of its juris to try an ejectment case. b. The joinder shall not include special civil actions or actions governed by
special rules;
THREE TESTS TO ASCERTAIN WHETHER 2 SUITS RELATE TO A c. Where the causes of action are between the same parties but pertain
SINGLE OR COMMON COA to different venues or jurisdictions, the joinder may be allowed in the
Regional Trial Court provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein; and
1. Whether the same evidence would support and sustain both
d. Where the claims in all the causes of action are principally for recovery
first and secong coa; of money, the aggregate amount claimed shall be the test of
2. Whether the defenses in one case may be used to jurisdiction.
substantiate the complaint in the other; and
JOINDER OF COA
3. Whether the coa in the 2nd case existed at the time of the
filing of the first complaint. Assertion of as many coa as a party may have against another in one
pleading alone. It is the process of uniting 2/more demands or rights
Illustration (3rd Test):
of action in one action.
No litis pendentia or splitting coa in the filing of the 1st ejectment
It is not compulsory. It is merely permissive since the rule uses the
case w/c was grounded on the petitioner’s violation of stipulations
word “may” not “shall.”
in the lease contract, while the filing of the 2nd case was based on
the expiration of the lease contract, an event not yet in existence at FIRST ELEMENT
the time of the filing of the 1st complaint.
When there are 2/more defendants or plaintiffs, the coa against the
ANTICIPATORY BREACH defendants can only be joined if there is compliance w/ the rules on
joinder of parties under Sec. 6 of Rule 3.
GR: a contract to do several things at several times is divisible in its
nature. This requirement does not apply when there is only one plaintiff and
one defendant bec in this case there are no parties to be joined.
This kind of obligation authorizes successive actions and a judgment
recovered for a single breach does not bar a suit for a subsequent SECOND ELEMENT
breach.
Special Civil Actions:
EXC: if the obligor manifest an unqualified and positive refusal to
perform a contract, though the performance of the same is not yet a. Interpleader;
due, and the renunciation goes to the whole contract, it may be b. Declaratory relief;
treated as a complete breach, w/c will entitle the injured party to c. Review of judgment and final orders;
bring his action at once. d. Certiorari, prohibition, and mandamus;
e. Quo warranto;
EFFECT OF SPLITTING OF COA f. Expropriation;
g. Forclosure of REM;
If 2/more suites are institute for a single coa, the filing of one or a
h. Partition;
judgment upon the merits in any one is available as a ground for the
i. Forcible entry and unlawful detainer; and
dismissal of the other.
j. Contempt
The remedy of the defendant is to fila a motion to dismiss.
THIRD ELEMENT
The phraseology of the present rule does not necessarily confine the
If one of the coa fall w/in the juris of the RTC and the other falls w/in
dismissal to the 2nd contract.
the juris of the MTC, the action should be filed in the RTC. If the coa
have different venues, they may be joined in any of the courts of
proper venue.

The provision allowing joinder of coa w/c pertains to different juris


applies only if the joinder is in the RTC.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

An action is real when it is founded upon the privity of real estate.


FOURTH ELEMENT
REAL ACTIONS
This situtation follows the so-called Totality Test for purposes of
jurisdiction. 1. Action for foreclosure of REM;
2. Action to recover ownership or possession of land;
N.B. if the obligation uder a promissory note is joint and not
3. Action for partition of real prop;
solidary, action may be separate since debts are separate and
4. Action for forcible entry (ejectment);
distinct coa.
5. Action for unlawful detainer (ejectment);
JOINDER OF CLAIMS IN SMALL CLAIMS CASES 6. Accion publiciana (ejectment);
7. Accion reivindicatoria;
Plaintiff may join, provided that the total amt claimed, exclusive of 8. Action for expropriation (ejectment);
int and costs, does not exceed P100K. 9. Action for annulment/recission of sale and return of realty;
10. Action to compel vendor to accept payment of purchase price
of land;
SECTION 6. 11. Action to compel vendor to deliver cert of title of land;
12. Action w/c prays that a cert of title be declared null and void r
Section 6. Misjoinder of causes of action. – Misjoinder of causes of action is
not a ground for dismissal of an action. A misjoined cause of action may, on alternatively, that damages from the assurance fund may be
motion of a party or on the initiative of the court, be severed and proceeded awarded;
with separately.
13. Action principally seeks the recovery of a sum of money, but in
REMEDY IN CASE OF MISJOINDER OF ACTIONS the event of failure of the defendant to voluntarily pay the amt,
the foreclosure of the REM shall be instituted and tried.
When there is a misjoinder of coa, the erroneously joined coa can be
severed and proceeded w/ separately upon motion by the parties or SIGNIFICANCE OF THE DISTINCTION BETWEEN A PERSONAL AND A
upon court’s own initiative. It cannot be a ground for dismissal of an REAL ACTION
action.
Real action – “local”, its venue depends upon the location of the
property involved in the litigation.

Personal action – “transitory”, venue depends upon the residence of


ACTIONS
the plaintiff or the defendant.

IN PERSONAM AND IN REM ACTIONS


DEFINITION
Action in personam - One which is directed against particular
Legal and formal demand of one’s right from another person made persons on the basis of their personal liability to establish a claim
and insisted upon in a court of justice. against them and the judgment wherein is binding only upon the
CIVIL ACTION v. CRIMINAL ACTION parties impleaded or their successors in interest.

Civil action – one by w/c a party sues another for the enforcement Action in rem - One which is not directed only against particular
or protection of a right, or prevention or redress of a wrong. persons but against the thing itself and the object of which is to bar
indifferently all who might be minded to make any objection against
Criminal action – is one by w/c the State prosecutes a person for an the right sought to be enforced, hence the judgment therein is
act/omission punishable by law. binding theoretically upon the whole world.

ACTIONS v. SPECIAL PROCEEDINGS QUASI IN REM ACTIONS

Action – to protect a right or prevent or redress a wrong if the action One directed against particular persons but the purpose of which is
is civil. If action is criminal, to prosecute a person for an to bar and bind not only said persons but any other person who
act/omission punishable by law. claims an interest in the property or right subject of the suit.

Special proceeding – to establish a status, a right, or a particular Examples:


fact.
a. Attachment;
REAL AND PERSONAL ACTIONS b. Foreclosure of mortgage;
c. Action for partition; and
An action is real when it affects title or possession of real property
d. Action for accounting.
or an interest therein. All other actions are personal.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

RULE 3 SECTION 2.
PARTIES Section 2. Parties in interest. – A real party in interest is the party who
stands to be benefited or injured by the judgment in the suit, or the party
SECTION 1. entitled to the avails of the suit. Unless otherwise authorized by law or these
Rules, every action must be prosecuted or defended in the name of the real
Section 1. Who may be parties; plaintiff and defendant. – Only natural or party in interest.
juridical persons, or entities authorized by law may be parties in a civil action.
The term "plaintiff" may refer to the claiming party, the counter-claimant, REAL PARTY IN INTEREST
the cross-claimant, or the third (fourth, etc.) — party plaintiff. The term
"defendant" may refer to the original defending party, the defendant in a The party who stands to be benefited or injured by the judgment in
counter-claim, the cross-defendant, or the third (fourth, etc.) — party the suit, or the party entitled to the avails of the suit.
defendant.
GR: every action must be prosecuted/defended in the name of the
PARTIES TO THE CIVIL ACTION
real party in interest.
Plaintiff – claiming party and is the one who files the complaint.
EXC: unless ow authorized by law or by the rules.
Defendant – does not only refer to the original defending party.
If a suit is not brought in the name or against the real party in
The term defendant refers also to a defendant in a cc, c-c or 34rd interet, a motion to dismiss may be file on the ground that the
party defendant. complaint states no coa.

WHO MAY BE PARTIES DOCTRINE OF LOCUS STANDI

a. Natural persons; Refers to a personal and substantial interest in a case such that the
b. Juridical persons; and party has sustained or will sustain direct injury bec of the challenged
c. Entities authorized by law. governmental act.

JURIDICAL PERSONS AS PARTIES Who the real party in interest is? Involves only a question on
whether a person would be benefited or injured by the judgment or
Art. 44 of the CC: whether or not he is entitled to the avails of the suit.
a. State and its political subdivisions;
b. Other corp, institutions, and entities for pub
interest/purpose, created by law; SECTION 3.
c. Corp, partnerships and associations for private interest or Section 3. Representatives as parties. – Where the action is allowed to be
purpose to w/c the law grants a juridical personality, prosecuted and defended by a representative or someone acting in a
fiduciary capacity, the beneficiary shall be included in the title of the case
separate and distinct from that of each shareholder, partner,
and shall be deemed to be the real property in interest. A representative may
or member be a trustee of an expert trust, a guardian, an executor or administrator, or a
party authorized by law or these Rules. An agent acting in his own name and
Juridical pesons have personalities separate and distinct from for the benefit of an undisclosed principal may sue or be sued without joining
those of the natural persons that compose them. the principal except when the contract involves things belonging to the
principal.
EFFECT WHEN A PARTY IMPLEADED IS NOT AUTHORIZED TO BE A
REPRESENTATIVE PARTIES
PARTY
Some of the actons may be allowed to be prosecuted or defended
Plaintiff not a natural or a juridical – a motion to dismiss may be
by a representative or someone acting in fiduciary capacity.
filed on the ground that the plaintiff has no legal capacity to sue.
The beneficiary shall be included in the title of the case and shall be
Defendant not a natural or a juridical – complaint may be dismissed
deemed to be the real party in interest. Impleading the beneficiary
on the ground that the pleading asserting the claim states no coa” or
as a party is mandatory since said beneficiary is deemed to be the
“failure to state a coa.”
real party in interest.

AVERMENT OF CAPACITY TO SUE OR BE SUED


SECTION 4.
1. Facts showing the capacity of a party to sue or be sued,
2. The authority of a party to sue or be sued in a representative Section 4. Spouses as parties. – Husband and wife shall sue or be sued
jointly, except as provided by law.
capacity;
3. The legal existence of an organized association of person.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

SUIT BY OR AGAINST SPOUSES a party becomes compulsory when the one involved is an
indispensible party.
Husband and wife shall sue or be sued jointly, except as provided by
law. The liability of the sps to creditors for family expenses shall, EFFECT OF NON-JOINDER OF INDISPENSIBLE PARTY
howeverm be solidary.
Any decision rendered by a court w/o first obtaining the required
juris over indispensible parties is null and void for want of juris.

SECTION 5. There are 2 consequences of a finding on appeal that indispensible


Section 5. Minor or incompetent persons. – A minor or a person alleged to parties have not bee joined:
be incompetent, may sue or be sued with the assistance of his father,
mother, guardian, or if he has none, a guardian ad litem. 1. All subsequent actions of the lower courts are null an void for
lach for juris.
MINOR OR INCOMPETENT AS A PARTY 2. The case should be remanded to the trial court for the
They can sue or be sued. They can be a party but w/ assistance of his inclusion of indispensible parties.
father, mother, guardian, or if he has non, a guardian ad litem.

SECTION 8.
SECTION 6. Section 8. Necessary party. – A necessary party is one who is not
indispensable but who ought to be joined as a party if complete relief is to be
Section 6. Permissive joinder of parties. – All persons in whom or against accorded as to those already parties, or for a complete determination or
whom any right to relief in respect to or arising out of the same transaction settlement of the claim subject of the action.
or series of transactions is alleged to exist, whether jointly, severally, or in
the alternative, may, except as otherwise provided in these Rules, join as NECESSARY PARTIES
plaintiffs or be joined as defendants in one complaint, where any question of
law or fact common to all such plaintiffs or to all such defendants may arise
One who is not indispensible but who ought to be joined as a party
in the action; but the court may make such orders as may be just to prevent
any plaintiff or defendant from being embarrassed or put to expense in to the case if complete relief is to be accorded as to those already,
connection with any proceedings in which he may have no interest. or for a complete determination or settlement of the claim subj of
the action;
ELEMENTS
INDISPENSIBLE v. NECESSARY PARTY
1. The right to relief arises out of the same transaction or series of
transactions; and Indispensible Necessary
2. There is a question of law or fact common to all the plaintiffs or Must be joined under any or all Should be joined whenever
defendants. conditions. possible.
Must be joined bec the court Not mandatory bec his interest
cannot proceed w/o him. Hence, is saparable from that of the
SECTION 7.
presence is mandatory. indispensible.
Section 7. Compulsory joinder of indispensable parties. – Parties in interest
without whom no final determination can be had of an action shall be joined
either as plaintiffs or defendants.
SECTION 9.
INDISPENSIBLE PARTY
Section 9. Non-joinder of necessary parties to be pleaded. – Whenever in any
A real party in interest w/o who no final determination can be had pleading in which a claim is asserted a necessary party is not joined, the
pleader shall set forth his name, if known, and shall state why he is omitted.
of an action. Should the court find the reason for the omission unmeritorious, it may order
the inclusion of the omitted necessary party if jurisdiction over his person
One whose interest in the subj matter of the suit and the relief may be obtained.
sought are so inextricably intertwined w/ the other parties that his
legal presence as a party to the proceeding is an absolute necessity. The failure to comply with the order for his inclusion, without justifiable
cause, shall be deemed a waiver of the claim against such party.
Not indispensible – if his interest in the controversy or subj matter is The non-inclusion of a necessary party does not prevent the court from
distinct and divisible from the interest of the other parties and will proceeding in the action, and the judgment rendered therein shall be
not necessarily be prejudiced by a judgment. without prejudice to the rights of such necessary party.

COMPULSORY JOINDER OF INDISPENSIBLE PARTY DUTY OF PLEADER IF A NECESSARY PART IS NOT JOINED

It is mandatory and courts cannot proceed w/o their presence. Pleader shall set forth the name of the necessar party, if his name is
Although normally, a joinder of a parties is permissive, the joinder of known, and state why suh party is omitted.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

WHEN COURT MAY ORDER JOINDER OF NECESSARY PARTY


Neither misjoinder nor non-joinder of parties is a groud for the
If the reason given for the non-joinder of the necessary party is dismissal of an action. Parties may be dropped or added by order of
found by the court to be unmeritorious, it may order the pleader to the court on motion of any party or on its own initiative.
join the omitted party if juris over person may be obtained.
Failure to obey the order the court to drop or add a party is a ground
EFFECT OF FAILURE TO COMPLY WITH THE ORDER OF COURT. for the dismissal of the complaint.

Failure to comply w/o justifiable cause, shall be deemed a waiver of


the claim against such party.
SECTION 12.
EFFECT OF A JUSTIFIED NON-INCLUSION OF A NECESSARY PARTY Section 12. Class suit. – When the subject matter of the controversy is one
of common or general interest to many persons so numerous that it is
It does not prevent the court from proceeding in the action, and the impracticable to join all as parties, a number of them which the court finds to
judgment rendered therein shall be w/o prejudice to the rights of be sufficiently numerous and representative as to fully protect the interests
of all concerned may sue or defend for the benefit of all. Any party in interest
such necessary party.
shall have the right to intervene to protect his individual interest.

CLASS SUIT; REQUISITES


SECTION 10.
It is an action where one or more may sue for the benefit of all if the
Section 10. Unwilling co-plaintiff. – If the consent of any party who should requisites for said action are complied w/.
be joined as plaintiff can not be obtained, he may be made a defendant and
the reason therefor shall be stated in the complaint. a. Subj matter of the controversy must be of common or
UNWILLING CO-PLAINTIFF general interest to many persons;
b. Persons are so numerous that it is impracticable to join all
A party who is supposed to be a plaintiff whose consent to be joined as parties;
as a plaintiff cannot be obtained as when he refuses to be a party to c. Parties actually before the court are sufficiently numerous
the actions. and representative as to fully protect the interests of all
concerned; and
d. The representatives sue or defend for the benefit of all.
SECTION 11.
COMMONALITY OF INT
Section 11. Misjoinder and non-joinder of parties. – Neither misjoinder nor
non-joinder of parties is ground for dismissal of an action. Parties may be Subj matter of the action is meant the physical, the things real or
dropped or added by order of the court on motion of any party or on its own personal, the money, lands, chattels, and the like, in relation to the
initiative at any stage the action and on such terms as are just. Any claim
against a misjoined party may be severed and proceeded with separately. suit w/c is prosecuted and not the delict or wrong committed by the
defendant. There is no class suit when interests are conflicting.
FAILURE TO IMPLEAD AN INDISPENSIBLE PARTY; NOT A GROUND
FOR DISMISSAL NO CLASS SUIT BY A CORPORATION TO RECOVER PROPERTY OF ITS
MEMBERS
If a complaint or petition is not brought in the name of or against an
indispensible party, a motion to dismiss may be filed on the ground A non-stock corporation may not institute an action, in behalf of its
that the complaint states no coa. individual members, for the recovery of certain parcels of land
allegedly owned by its members. The corporation, being an entity
However, an outright dismissal is not the immediate remedy separate and distinct fom its members, has no interest in the
authorized by the court. Non-joinder or misjoinder is not a ground individual property of its members, unless transferred to the
corporation.
for dismissal of an action. Instead, parties may be dropped or added
by the court on motion of any perty or on its own initiative at any A class suit does not lie in actions for the recovery of property where
stage of the action. several persons claim ownership of their respecive portions of
property, as each one could allege and prove his respective right in a
MISJOINDER AND NON-JOINDER OF PARTIES different way.

A party is misjoined when he is made party to the action altough he DISMISSAL OR COMPROMISE OF A CLASS SUIT
should not be impleaded. A party is not joined when he is supposed
to be joined but is not impleaded in the action. Shall be dismissed or compromised w/o the approval of the court.
This is to protect the common interest of all those who initiated the
class suit.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

CLASS SUIT v. REPRESENTATIVE SUIT SECTION 16.


Class Suit Representative Suit Section 16. Death of party; duty of counsel. – Whenever a party to a
pending action dies, and the claim is not thereby extinguished, it shall be the
A rep suit only insofar as the Not suing merely as
duty of his counsel to inform the court within thirty (30) days after such
persons who institute it representatives. They death of the fact thereof, and to give the name and address of his legal
represent the entire class of themselves are real parties in representative or representatives. Failure of counsel to comply with his duty
persons w/ same int/suffered interest directly injured. shall be a ground for disciplinary action.
same injury. The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor
heirs.
SECTION 13.
The court shall forthwith order said legal representative or representatives to
Section 13. Alternative defendants. – Where the plaintiff is uncertain against appear and be substituted within a period of thirty (30) days from notice.
who of several persons he is entitled to relief, he may join any or all of them
as defendants in the alternative, although a right to relief against one may be If no legal representative is named by the counsel for the deceased party, or
inconsistent with a right of relief against the other. if the one so named shall fail to appear within the specified period, the court
may order the opposing party, within a specified time to procure the
ALTERNATIVE DEFENDANTS appointment of an executor or administrator for the estate of the deceased
and the latter shall immediately appear for and on behalf of the deceased.
Where plaintiff cannot definitely identify who among 2/more The court charges in procuring such appointment, if defrayed by the
persons should be impleaded as a defendant, he may join all of them opposing party, may be recovered as costs.
as defendants in the alternative.
SECTION 17.
Section 17. Death or separation of a party who is a public officer. – When a
public officer is a party in an action in his official capacity and during its
SECTION 14.
pendency dies, resigns, or otherwise ceases to hold office, the action may be
Section 14. Unknown identity or name of defendant. – Whenever the continued and maintained by or against his successor if, within thirty (30)
identity or name of a defendant is unknown, he may be sued as the unknown days after the successor takes office or such time as may be granted by the
owner heir devisee, or by such other designation as the case may require, court, it is satisfactorily shown to the court by any party that there is a
when his identity or true name is discovered, the pleading must be amended substantial need for continuing or maintaining it and that the successor
accordingly. adopts or continues or threatens to adopt or continue to adopt or continue
the action of his predecessor. Before a substitution is made, the party or
UNKNOWN IDENTITY OR NAME OF THE DEFENDANT officer to be affected, unless expressly assenting thereto, shall be given
reasonable notice of the application therefor and accorded an opportunity to
be heard.
Whenever the identity or name of the defendant is unknown, he
may be sued as the unkown owner, heir, devisee, or by such other ACTION OF COURT UPON NOTICE OF DEATH; EFFECT OF DEATH ON
designation as the case may require; when his identity or true name THE CASE
is discovered, the pleading must be amended accordingly.
Upon receipt of the notice of death, court shall determine won the
claim is extinguished by such death.
SECTION 15.
If claim survives, court shall order the legal representative or
Section 15. Entity without juridical personality as defendant. – When representatives of the deceased, named in the info given by counsel,
two or more persons not organized as an entity with juridical personality
enter into a transaction, they may be sued under the name by which they are
to appear and be substituted for the deceased w/in 30 days from
generally or commonly known. notice.

In the answer of such defendant, the name and addresses of the persons When the action is extinguished by death, substitution would not be
composing said entity must all be revealed.
ordered by the court bec substitution is proper only when the action
survives.
ENTITY WITHOUT JURIDICAL PERSONALITY AS A DEFENDANT
Under the present rule, the heirs of the deceased may be allowed to
An example of an entity that is neither a natural nor juridical person be substituted for the deceased, w/o requiring the appointment of
but is allowed by the ROC to be a party to an action, although as a an executor or administrator and the court may appoint a guardian
defendant, is the one treated in this section. ad litem for the minor heirs.

Under the same provision, the responsive pleading of the entty sued must But any of the following may occur:
disclose tha names and addresses of its members since they are the persons
ultimately liable. a. The counsel for the deceased does not name a legal
representative; or

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

b. There is a representative named but he fails to appearw/in


SECTION 19.
the specified period.
Section 19. Transfer of interest. – In case of any transfer of interest, the
When any of the above happen, the court may order the opposing action may be continued by or against the original party, unless the court
party to procure the appointment of n executor or administrator for upon motion directs the person to whom the interest is transferred to be
substituted in the action or joined with the original party.
the estate of the deceased.
TRANSFER OF INTEREST
NO REQUIREMENT FOR AMENDMENT OF COMPLAINT OR SERVICE
OF SUMMONS Action may be continued by or against the original party, unless the
court, upon motion, directs the person to whom the interest is
It is not required to issue an order to amend the complait upon
transferred to be substituted in the action or joined w/ the original
being notified of the death of a party but to issue an order requiring
party.
the legal representative to appear and be substituted for the
deceased. Transferees are bound by the proceedings and judgment in the case,
such that there is no need for them to be included or impleaded by
Instead of issuing summons, the court shall, under the authority of
name.
the same provision, order the legal representative of the deceased
to appear and be substituted for the said deceasedw/in 30 days
from notice.
SECTION 20.
PURPOSE AND IMPORTANCE OF SUBSTITUTION OF THE DECEASED Section 20. Action and contractual money claims. – When the action is for
recovery of money arising from contract, express or implied, and the
Purpose behind the rule on substitution of the deceased is the defendant dies before entry of final judgment in the court in which the action
protection of the right of every party due process. was pending at the time of such death, it shall not be dismissed but shall
instead be allowed to continue until entry of final judgment. A favorable
Non-compliance w/ the rules renders the proceedings of the trial judgment obtained by the plaintiff therein shall be enforced in the manner
court infirm bec the court has no juris over the person of the legal especially provided in these Rules for prosecuting claims against the estate of
a deceased person.
representative or heirs of the deceased.
ACTIONS FOR THE RECOVERY OF MONEY ARISING FROM
A party to be affected by a personal judgment must have a day in
CONTRACTUAL OBLIGATIONS
court and an opportunity to be heard.
If the defendant dies before entry of final judgment in the court in
EXAMPLES OF ACTIONS WHICH SURVIVE THE DEATH OF A PARTY
w/c the action was pending at the time of such death, court shall
a. Actions to recover real and personal property for the not dismiss the case.
estate;
Case shall be allowed to continue until entry of final judgment.
b. Actions to enforce a lien thereon; and
“Before entry of final judgment” means the case is on trial or on
c. Actions to recover damages for an injury to person or
appeal. IOW, there is yet no final judgment to be entered.
propery.
d. Actions to recover personal property, such as replevin; If plaintiff obtains favorable judgment, said judgment shall be
e. Actions to recover real property, such as forcible entry, enforced ff the procedure provided for in the Rules for prosecuting
unlawful detainer, accion publiciana, accion claims against the estate of a deceased person.
reivindicatoria;
f. Action for quieting of title w/ damages;
SECTION 21.
Section 21. Indigent party. – A party may be authorized to litigate his action,
SECTION 18. claim or defense as an indigent if the court, upon an ex parte application and
hearing, is satisfied that the party is one who has no money or property
Section 18. Incompetency or incapacity. – If a party becomes
sufficient and available for food, shelter and basic necessities for himself and
incompetent or incapacitated, the court, upon motion with notice, may allow
his family.
the action to be continued by or against the incompetent or incapacitated
person assisted by his legal guardian or guardian ad litem. Such authority shall include an exemption from payment of docket and other
lawful fees, and of transcripts of stenographic notes which the court may
INCOMPETENCY OR INCAPACITY order to be furnished him. The amount of the docket and other lawful fees
which the indigent was exempted from paying shall be a lien on any
The court, upon motion w/ notice, may allow the acion to be judgment rendered in the case favorable to the indigent, unless the court
continued by/ against said party w/ the assistance of his legal otherwise provides.
guardian or guardian ad litem.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

Any adverse party may contest the grant of such authority at any time before
judgment is rendered by the trial court. If the court should determine after RULE 4
hearing that the party declared as an indigent is in fact a person with
sufficient income or property, the proper docket and other lawful fees shall VENUE
be assessed and collected by the clerk of court. If payment is not made
within the time fixed by the court, execution shall issue or the payment SECTION 1.
thereof, without prejudice to such other sanctions as the court may impose.
Section 1. Venue of real actions. – Actions affecting title to or possession of
real property, or interest therein, shall be commenced and tried in the
INDIGENT PARTIES
proper court which has jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated.
A party may be authorized to litigate as an indigent if the court is
satisfied that the party ia one who has no money or property Forcible entry and detainer actions shall be commenced and tried in the
sufficient and available for food, shelter and basic necessities for municipal trial court of the municipality or city wherein the real property
involved, or a portion thereof, is situated.
himself and his family.
MEANING OF VENUE
Application and hearing to litigate as an indigent litigant is made ex
parte. Venue is the place, or the geographical area, in w/c a court w/ juris
may hear and determine a case or the place where a case is to be
If authorized to litigate as indigent, he is exempeted from:
tried.
a. Docket fees;
JURISDICTION v. VENUE
b. Other lawful fees; and
c. Transcripts of stenographic notes. Jurisdiction Venue
Refers to the authority of the Place where the case is to be
Any adverse party may, however, contest the grant of authority. It
court to hear and determine a heard or tried.
the person indigent is in fact a person w/ sufficient income and
case.
property, proepr docket fees and lawful fees shall be assessed and
Substantive law. Procedural law.
collected by clerk of court.
Cannot be waived by parties. May be waived if not invoked
In case authority is contested by any party, determination of the either in motion to dismiss or in
court on won grant of the earlier authority I proper is done after the answer.
hearing, not ex parte. Fixed by law and cannot be Conferred by the act or
coferred by parties. agreement of the parties.
Court may dismiss an action Not for improper venue.
SECTION 22. motu propio in lack of juris over
Section 20. Notice to the Solicitor General. – In any action involving the
the subj matter.
validity of any treaty, law, ordinance, executive order, presidential decree,
rules or regulations, the court, in its discretion, may require the appearance
of the Solicitor General who may be heard in person or a representative duly BASIC VENUE ANALYSIS
designated by him.
Rules on video do not give a plaintiff the freedom to bring suits
ROLE OF THE SOLGEN
wherever he chooses.
Only SolGen can bring and defend actions on behalf of the Republic
If it is personal, the venue is deemed transitory and thus, generally
of the PH. If not initiated by the SolGen, will be summarily dismissed.
depends upon the residences of the parties.
Also in action involving the validity of any treaty, law, ordinance,
If it is real, venue is local and, thus, generally, the venue is the place
executive order, pres decree, rule or regulations, the court, in its
where the property or any portion of the same is situated.
discretion, may require the appearance of the SolGen who may be
heard in person or through a representative duly designated by him. VENUE IN REAL ACTIONS

Actions affecting title to, or possession of, real property, or interest


therein, shall be commenced and tried in the proper court w/c has
juris over the rea wherein the real property is situated.

REAL ACTIONS

1. Action for foreclosure of REM;


2. Action to recover ownership or possession of land;

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

VENUE OF ACTIONS AGAINST NON-RESIDENTS


3. Action for partition of real prop;
4. Action for forcible entry (ejectment); The rule applies when:
5. Action for unlawful detainer (ejectment);
a. Any of the defendants is a non-resident and, at the same
6. Accion publiciana (ejectment);
time, not found in the PH; and
7. Accion reivindicatoria;
b. Action affects the personal status of the plaintiff; or
8. Action for expropriation (ejectment);
c. The action affects any property of the non-resident
9. Action for annulment/recission of sale and return of realty;
defendant located in the PH.
10. Action to compel vendor to accept payment of purchase
price of land; The action in the above situations may be commenced and tried in
11. Action to compel vendor to deliver cert of title of land; the court of the place where the plaintiff resides, or where the
12. Action w/c prays that a cert of title be declared null and void property or any portion thereof is situated or found.
Or alternatively, that damages from the assurance fund may
be awarded;
13. Action principally seeks the recovery of a sum of money, but
SECTION 4.
in the event of failure of the defendant to voluntarily pay the
Section 4. When Rule not applicable. – This Rule shall not apply.
amt, the foreclosure of the REM shall be instituted and tried.
a. In those cases where a specific rule or law provides otherwise; or
b. Where the parties have validly agreed in writing before the filing of the
action on the exclusive venue thereof.
SECTION 2.
Section 2. Venue of personal actions. – All other actions may be commenced WHEN THE RULES ON VENUE DO NOT APPLY
and tried where the plaintiff or any of the principal plaintiffs resides, or
where the defendant or any of the principal defendants resides, or in the a. When a specific rule or law provides ow.
case of a non-resident defendant where he may be found, at the election of b. Where the parties have validly agreed in writing before the
the plaintiff.
filing of the action.
VENUE IN PERSONAL ACTIONS
STIPULATION ON VENUE
Where the plaintiff or any of the principal plaintiffs resides, or where
Parties may agree on a specific may agree on a specific venue w/c
the defendant or any of the principal defendants resides, at the
could be in a place where neither of them resides.
election of the plaintiff.
Parties may stipulate on the venue as long as the agreement is:
When there is more than one plaintiff or defendant in a personal
action, the residences of the principal parties should be the basis for 1. In writing;
determining the proper venue. 2. Made before the filing of the action; and
3. Exclusive as to the venue.
If defendant is a non-resident, the venue is where the plaintiff or any
of the principal plaintiffs resides, or where the non-resident Written stipulations as to venue, according to the court, are either
defendant may be found, at the election of the plaintiff. restrictive or permissive.

The term “resides” as employed in the rule on venue on personal In interpreting stipulations, inquiry must be made as to whether or
actions means the place of abode, whether permanent or not the agreement is restirtive in the sense that the suit may be filed
temporary, of the plaintiff or the defendant as distinguished from only in the place agreed upon.
“domicile” w/c denotes a fixed permanent residence to w/c when
absent, one has the intention of returning. It is merely permissive when the parties may file their suits not only
in the place agreed upon but also in the places fixed by the rules.

SECTION 3.
Section 3. Venue of actions against nonresidents. – If any of the defendants RULE 5
does not reside and is not found in the Philippines, and the action affects the
personal status of the plaintiff, or any property of said defendant located in UNIFORM PROEDURE IN TRIAL COURTS
the Philippines, the action may be commenced and tried in the court of the
place where the plaintiff resides, or where the property or any portion SECTION 1.
thereof is situated or found. Section 1. Uniform procedure. – The procedure in the Municipal Trial Courts
shall be the same as in the Regional Trial Courts, except (a) where a
particular provision expressly or impliedly applies only to either of said
courts, or (b) in civil cases governed by the Rule on Summary Procedure.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

SECTION 2. SECTION 3.
Section 2. Meaning of terms. – The term "Municipal Trial Courts" as used in Section 3. Complaint. – The complaint is the pleading alleging the plaintiff's
these Rules shall include Metropolitan Trial Courts, Municipal Trial Courts in cause or causes of action. The names and residences of the plaintiff and
Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts. defendant must be stated in the complaint.

MEANING OF COMPLAINT

RULE 6 The pleading alleging the plaintiff’s cause or causes of action.

KINDS OF PLEADINGS The rule requires that the complaint need only allege the ultimate
facts or essential facts constituting the plaintiff’s coa.
SECTION 1.
Section 1. Pleadings defined. – Pleadings are the written statements of the FILING OF THE COMPLAINT; SIGNIFANCE
respective claims and defenses of the parties submitted to the court for
appropriate judgment. Filing of the complaint is the act of presenting the said complaint to
the clerk of court. Filing of complaint signifies:
NATURE OF PLEADINGS
a. Commencement of the civil action;
Formal statements by the parties of the operative facts w/c b. Court acquires juris over the person of the plaintiff;
constitute their respective claims and defenses. c. Has the effect of interrupting the prescription of actions.

They are written statements of the respective claims and defenses PAYMENT OF DOCKET FEES AND ACQUISITION OF JURIS
of the parties submitted to the court for appropriate judgment.
Payment of docket fees vests a trial court w/ juris over the subj
NECESSITY AND PURPOSE OF PLEADINGS matter or nature of the action.

Pleadings are designed to develop and present the precise points in Subj to the rule on liberal interpretations. While the payment of the
dispute between the parites. It is to notify the opposite party of the required docket fee is a jurisdictional requirement, even its
facts w/c the pleader expects to prove, so that he may not be misled nonpayment at the time of filing does not automatically cause the
in the preparation of his case. dismissal of the case, as long as the fee is paid w/in the applicable
prescriptive or reglementary period.
CONSTRUCTION OF PLEADINGS
Non-payment at the time of the filing of the complaint does not
All pleadings shall be liberally construed so as to do substantial
automatically cause the dismissal of the complaint provided that:
justice. As a rule, a party is strictly bound by the allegations,
statements or admissions made in his pleadings and cannot be a. The fees are paid w/in a reasonable time; and
permitted to take a contradictory position. b. There is not intent to defraud the government by the
failure to pay the correct amt of filing fees.

SECTION 2. PAYMENT OF DOCKET FEES FOR CASES ON APPEAL


Section 2. Pleadings allowed. – The claims of a party are asserted in a
complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint, or Appellate docket and other lawful fees must be paid w/in the same
complaint-in-intervention. period for taking an appeal. W/o such payment, the appellate court
The defenses of a party are alleged in the answer to the pleading asserting a does not acquire juris over the subj matter of the action and the
claim against him. decision sought to be appealed from becomes final and executory.

An answer may be responded to by a reply.

PLEADINGS ALLOWED BY THE ROC SECTION 4.


Section 4. Answer. – An answer is a pleading in which a defending party sets
The ff are the pleadings allowed by the ROC: forth his defenses.

a. Complaint;
SECTION 5.
b. Answer;
Section 5. Defenses. – Defenses may either be negative or affirmative.
c. Counterclaims (cc);
d. Cross-claim (c-c); a. A negative defense is the specific denial of the material fact or facts
e. Third (fourth, etc)-party complaint; alleged in the pleading of the claimant essential to his cause or causes
of action.
f. Complaint-in-intervention; and
g. Reply.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

b. An affirmative defense is an allegation of a new matter which, while


not have the effect of fusing the 2 separate pleadings into a single
hypothetically admitting the material allegations in the pleading of the pleading.
claimant, would nevertheless prevent or bar recovery by him. The
affirmative defenses include fraud, statute of limitations, release, N.B. a Motion to Dismiss w/ a Counterclaim is not an accepted way
payment, illegality, statute of frauds, estoppel, former recovery, of pleading a counterclaim.
discharge in bankruptcy, and any other matter by way of confession
and avoidance. A counterclaim may either be compulsory or permissive:
NATURE OF AN ANSWER A compulsory is one that, requisites:
A pleading in w/c a defending party sets forth his defenses. 1. Arises out of the trans or occurrence that is the subj
This pleading may be an answer to the complaint, cc or c-c. There is matter of the opposing party’s claim;
no answer to a reply but there could be an answer to a 3rd-p 2. Cognizable by reg courts & falls w/in the juris of the court
compalint or complaint-in-intervention. (both as to amt and nature);
3. Does not require for its adjudication the presence of third
KINDS OF DEFENSES parties over whom the court cannot acquire juris.

Negative – its purpose is to specifically deny the material averments N.B. must e w/in the juris of the court both as to the amount and
in the pleading of the claiming party. A general denial is considered the nature thereof.
an admission.
It is permissive if it does not arise out of or is not necessarily
Affirmative – its purpose is to prevent or bar recovery by the connected w/ the subj matter of the opposing party’s claim. It is
claiming party even if it hypothetically admits the material essentially an independent claimthat may be filed separately in
allegations in the pleading of the claimant. It is therefore, a defense another case.
by way of confession and avoidance.
COMPULSORY COUNTERCLAIM; TESTS
Fraud, statute of limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in bankruptcy, and any A positive answer to all questions would indicate that the
other matter by way of confession and avoidance. counterclaim is compulsory:

a. Are the issues of the fact and law raised by the claim and
counterclaim largely the same?
SECTION 6. b. Would res judicata bar a subsequent sut on defendant’s
Section 6. Counterclaim. – A counterclaim is any claim which a defending claims, absent the compulsory counterclaim rule?
party may have against an opposing party.
c. Will substantially the same evidence support/refute
plaintiff’s claim as well as the defendant’s counterclaim?
SECTION 7.
d. Is there any logical relation between the claim and
Section 7. Compulsory counterclaim. – A compulsory counterclaim is one
which, being cognizable by the regular courts of justice, arises out of or is
counterclaim?
connected with the transaction or occurrence constituting the subject matter
of the opposing party's claim and does not require for its adjudication the If the amt of the counterclaim exceeds the juris of the court, the
presence of third parties of whom the court cannot acquire jurisdiction. Such counterclaim should be deemed permissive.
a counterclaim must be within the jurisdiction of the court both as to the
amount and the nature thereof, except that in an original action before the Illustration:
Regional Trial Court, the counter-claim may be considered compulsory
regardless of the amount. An MTC in Bulacan will not have the juris to take cognizance of a
counterclaim in excess of P300K and an MTC cannot assume juris
NATURE OF A COUNTERCLAIM
over a counterclaim in excess of P400K. Rule requires that the
A counterclaim is any claim w/c a defending party may hae against counterclaim “must be w/in the juris of the court both as to the amt
an opposing part. It partakes of a complaint by the defendant and the nature thereof.” Hence, MTC has no juris.
against the plaintiff.
The result, however, when the original action is filed w/ the RTC. In
A counterclaim is in itself is a distinct and independent coa abd this court, the counterclaim may be deemed compulsory regardless
when filed, there are two simultaneous actions between the same of the amt.
parties.
THE NEED TO SET UP A COMPULSORY CC IN THE SAME ACTION
A counterclaim is not intrinsically a part of the answer bec it is a
A compulsory cc should be interposed at the time the defending
separate pleading. This inclusion is merely a part of form and does
party files his answer; ow, it will be effectively barred.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
When a compulsory cc be dismissed:
EFFECT OF THE DISMISSAL OF A COMPLAINT ON THE CC ALREADY
a. If it is filed concurrently w/ the main action but under a
SET UP
separate compalint (on the ground of litis pendentia);
b. If it is subsequently filed after the main action (on th a. Sec. 6, Rule 16.
ground of res judicata).

INCOMPATIBILITY BETWEEN A COMPULSORY CC AND A MOTION Here, defendant does not file a motion to dismiss. Instead, he
TO DISMISS files an answer and utilizes certain grounds for a motion to
dismiss as affirmative defensees. He then asks for a preliminary
If complaint is dismissed, there will be no chance to invoke the cc.
hearing on the affirmative defenses set up. If the comlaint is
The better move is to file an answer w/ cc and plead the ground for dismissed, the cc, compulsory or permissive is not dismissed.
dismissal as an affirmative defense.
b. Sec. 2, Rule 17.
PERMISSIVE CC
The plaintiff himself files a motion to dismiss his complaint after
A cc is permissive if any of the elements of a compulsory cc the defendant has pleaded his answer w/ a cc. if motion is
discussed previously is absent and if it does not arise out of or is not granted, dismissal shall w/o prejudice to the right of the
necessarily connected w/ the subj matter of the opposing party’s defendant to prosecute his cc in a separate action, unless w/in
claim. 15 days from notice of the motion he manifests his preference
to have his cc resolved in the same action.
DISTINCTION BETWEEN A COMPULSORY AND A PERMISSIVE CC
c. Sec. 3, Rule 17.
Complusory Cc Permissive Cc
Shall be contained in the answer Set up as an independent ation Complain is dismissed through plaintiff’s fault and at a time
bec if not set up, it is barred. & will not barred if not when a cc has already been set up. Dismissal is w/o prejudice
contained in the answer. to the right of the defendant to prosecute his cc in the same or
separate action.
Not an initiatory hearing. An initiatory hearing.
Cannot be independently set up, Should bee accompanied by There is difference between a dismissal of an action and a dismisal
no need for cert against forum such certification against forum of the complaint. If only the complaint is dismissed, not the action,
shopping & cert to file action. shopping and cert to file action. the defendant may still prosecute his cc.
Not a cause for a default Must be answered by the party
declaration. against whom it is interposed;
ow, he may be declared default. SECTION 8.
No docket fees. Docket and other lawful fees Section 8. Cross-claim. – A cross-claim is any claim by one party against a co-
should be paid. party arising out of the transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein. Such cross-claim
may include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all or part of a claim asserted in the action
HOW TO SET UP AN OMITTED CC against the cross-claimant.

A cc not initially set up bec of the pleader’s oversight, inadvertence,


SECTION 9.
excusable neglect, or when justice rquires, may be set up, by leave
Section 9. Counter-counterclaims and counter-crossclaims. – A counter-claim
of court, by amendment before judgment.
may be asserted against an original counter-claimant.

A cross-claim may also be filed against an original cross-claimant.


if not set up in the action, the compulsory cc shall be barred. A
permissive cc, however, will not be barred.
NATURE of C-C
HOW TO SET UP A CC ARISING AFTER THE ANSWER
C-c is any claim by 1 party against a co-party arising out of the
A cc, w/c either matured/acquired by aprty after serving his
transaction/occurrence that is the subj matter either of the orig
pleading, may, w/ the permission of the court, be presented as a cc
action/a cc.
by supplemental pleading before judgment.
It is asserted by a defending party against a co-defending party so
PERIOD TO ANSWER CC
that the latter may be held liable for the claim w/c the claimant
10 days from service. More relevant to permissive cc. seeks to recover from the cross-claimant.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

A c-c that a party has at the time the answer is filed shall be WHEN FILING OF REPLY IS ADVISABLE
contained in said answer. A c-c that is not set up shall be barred.
When the defense in the answer is based upon a written
C-C ON APPEAL insrument/doc, said instrument is considered an actionable doc.
Hence, the plaintiff has to file a reply under oath if he desires to
Under the rules, a c-c not set up shall be barred. Thus, a c-c cannot
deny specifically the genuineness and due execution of the
be set up for the first time on appeal.
actionable doc, and avoid an admission of such matters.
COUNTERCLAIM (CC) v.CROSS-CLAIM (C-C)
PERIOD TO FILE REPLY
CC C-C A reply may be filed w/in 10 days from service of the pleading
Claim against an opposing party. Claim against a co-party. responded to.
May/may not arise out of the Must arise from the
subj matter of the complaint trans/occurrence that is the subj
(compulsory/permissive). matter of the orig complaint/cc.
SECTION 11.
Section 11. Third, (fourth, etc.)—party complaint. – A third (fourth, etc.) —
HOW TO SET UP A C-C ARISING AFTER THE ANSWER party complaint is a claim that a defending party may, with leave of court, file
against a person not a party to the action, called the third (fourth, etc.) —
A c-c w/c either matured/was acquired by a party after serving his party defendant for contribution, indemnity, subrogation or any other relief,
pleading may, w/ the permission of the court, be presented as a c-c in respect of his opponent's claim.
by supplemental pleading before a judgment.
NATURE OF THIRD (FOURTH, ETC.) – PARTY COMPLAINT
HOW TO SET UP AN OMITTED SET UP
A third-party complaint is a claim w/c a defending party may, w/
When a pleader fails to set up a c-c through oversight, inadvertance leave of court, file against a person who is not yet a party to the
or excusable neglect, or when justice requires, he may, w/ leave of action for contribution, indemnity, subrogation or any other relief, in
court, set up c-c by amendment before judgment. respect of his opponent’s claim. It is a complaint independent of,
and separate and distint from the plaintiff’s complaint.
PERIOD TO ANSWER A C-C
Purpose:
Must be w/in 10 days from service.
To avoid circuitry of action and unnecessary proliferation of lawsuits
and dispose expeditiously in one litigation all the matters arising
SECTION 10. from one particular set of facts.
Section 10. Reply. – A reply is a pleading, the office or function of which is to Trial courts are not especially enjoined by law to admit a thrid-party
deny, or allege facts in denial or avoidance of new matters alleged by way of
defense in the answer and thereby join or make issue as to such new complaint. They are vested w/ discretion to allow/disallow a party to
matters. If a party does not file such reply, all the new matters alleged in the an action to implead an additional party.
answer are deemed controverted.
If is not proper to file a thrid-party complaint against the plaintiff or
If the plaintiff wishes to interpose any claims arising out of the new matters
co-defendant.
so alleged, such claims shall be set forth in an amended or supplemental
complaint.
Illustration:
NATURE OF A REPLY
a. B and C borrowed P400K from A. b, who received the money
Reply is a pleading, the function of w/c is to deny, or allege facts in from A, gave C P200K. C, in turn, gave by way of loan, P100K to
denial/avoidance of new matters alleged by way of defense in the D. C, if sued, can file a third-party complaint against D.
answer and thereby join/make issue as to such new matters.
b. A assembles an owner-type jeep for B who, in turn, rents it to X.
It is a responsive pleading to an answer. It is not a responsive Due to faulty breaks, X figures in a vehicular accident causing
pleading to a cc/c-c/ him sever injuries. If X files an action for damages agains A and
B, B cannot file a third-pary complaint against A bec both are
FILING OF REPLY, NOT MANDATORY
already to the action. B should instead file a cross-claim.
As a rule, the filing of a reply to the answer is not mandatory and
will not have an adverse effect on the plaintiff. If a pary does not file LEAVE OF COURT
such reply, all the new matters alleged in the answer are deemed
Filing of a thrid-party complaint requires leave of court and, hence,
controverted or denied. No admission follows from the failure to file
its admission is subj to judicial discretion. Leave of court is not
a reply.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

required in filing a cc or a c-c bec the parties involev are already


parties to the action. SECTION 13.
Section 13. Answer to third (fourth, etc.)—party complaint. – A third (fourth,
ANSWER TO A THRID-PARTY COMPLAINT etc.) — party defendant may allege in his answer his defenses, counterclaims
or cross-claims, including such defenses that the third (fourth, etc.) — party
The time to answer a third-party complaint shall be governed by the plaintiff may have against the original plaintiff's claim. In proper cases, he
same rule as the answer to the complaint hence, w/in 15 days from may also assert a counterclaim against the original plaintiff in respect of the
latter's claim against the third-party plaintiff.
services of summons.
BRINGING NEW PARTIES
INTERVENTION
Court may authorize the filing of the proper third-party complaint to
NATURE OF INTERVENTION
implead the other parties not included in the orig complaint.
Intervention is a remedy by w/c a 3rd P, not originally impleaded in
Even where the impleading of the third-party defendants does not
the proceedings, becomes a litigant therein to enable him, her or it
fall squarely w/in the requisites on third-party complaints, their
to protect or preserve a right /interest w/c may be affected by such
inclusion in the actionmay be permitted where there is a question of
proceedings.
law/fact common to the right in w/c they are interested and another
It is either joining the plaintiff in claiming what is sought by the right sought to be enforced in the action, hence their inclusion as
complaint, or uniting with the defendant in resisting the claims of proper (now, necessary) parties is justified under Sec. 6, Rule 3.
the plaintiff, or demanding something adverse to both of them.

It is not a matter of right but may be permitted when the applicant


shows facts w/c satisfy the requirements of the statute authorizing RULE 7
intervention. The allowance/disallowance of a motion for
PARTS OF PLEADINGS
intervention rests on the sound discretion of the court after
consideration of the appropriate circumstances. SECTION 1.
Section 1. Caption. – The caption sets forth the name of the court, the title
Moreover, the court must take into consideraton won the of the action, and the docket number if assigned.
intervention will unduly delay or prejudice te adjudication of the
rights of the original parties. The title of the action indicates the names of the parties. They shall all be
named in the original complaint or petition; but in subsequent pleadings, it
shall be sufficient if the name of the first party on each side be stated with an
Intervention is never an independent proceeding but ancillary and
appropriate indication when there are other parties.
supplemental to an existing litigation and in subordination to the
main proceedings. Their respective participation in the case shall be indicated.

An intervention cannot alter the nature of the action and the issues CAPTION OF THE PLEADING
already joined.
Caption contains the ff:
REQUISITES
a. Name of the court;
a. Motion for leave to inervene filed before rendition of judgment b. Title of the action; and
by the trial court. c. Docket number, if assigned.
b. Movant must show in his motion that he has:
TITLE OF THE ACTION
i. Legal int in (a) the matter in litigation, or success of either
of the parties in the action; Contains the names of the parties, whose participation in the case
ii. Legal int against both parties, or shall be indicated (either as plaintiff/defendant). They shall all be
iii. Movant is so situated as to be adversely affected by a named in the orig complaint/petition; but in subsequent pleadings,
distribution or oher disposition of property in the custody it shall be sufficient if the name of the 1st party on each side be
of the court or of an officer thereof. stated w/ an appropriate indication whether there are other parties.

SECTION 12. SECTION 2.


Section 12. Bringing new parties. – When the presence of parties other than Section 2. The body. – The body of the pleading sets fourth its designation,
those to the original action is required for the granting of complete relief in the allegations of the party's claims or defenses, the relief prayed for, and
the determination of a counterclaim or cross-claim, the court shall order the date of the pleading.
them to be brought in as defendants, if jurisdiction over them can be
obtained.

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(a) Paragraphs. — The allegations in the body of a pleading shall be divided SIGNATURE AND ADDRESS
into paragraphs so numbered to be readily identified, each of which shall
contain a statement of a single set of circumstances so far as that can be
Every pleading must be signed by the plaintiff/counsel representing
done with convenience. A paragraph may be referred to by its number in all
succeeding pleadings. him stating in either case his address.

(b) Headings. — When two or more causes of action are joined the In the absence of a proper notice to the court of a change of
statement of the first shall be prefaced by the words "first cause of action,'' address, service upon the parties must be made at the last address
of the second by "second cause of action", and so on for the others.
of their counsel of record.
When one or more paragraphs in the answer are addressed to one of several
causes of action in the complaint, they shall be prefaced by the words EFFECT OF AN UNSIGNED PLEADING
"answer to the first cause of action" or "answer to the second cause of
action" and so on; and when one or more paragraphs of the answer are An unsigned pleading produces no legal effect. The court, however,
addressed to several causes of action, they shall be prefaced by words to that is authorized to allow the pleader to correct the deficiency if he
effect.
shows to the satisfaction of the court, that the failure to sign was
(c) Relief. — The pleading shall specify the relief sought, but it may add a due to mere indvertence and not intended for delay.
general prayer for such further or other relief as may be deemed just or
equitable. SIGNIFICANCE OF COUNSEL’S SIGNATURE
(d) Date. — Every pleading shall be dated.
Counsel’s signature constitutes a certificate by him that:
RELIEF/PRAYER
a. He has read the pleading;
Complaint must containt a statement of the relief sought from the b. To the best of his knowledge, info, and belief that there is
court and to w/c he believes he is entitled. good ground to support it; and
c. It is not interposed for delay.
Prayer does not constitute an essential part of the allegations
determinative of the juris of a court. The question of juris depends WHEN COUNSEL IS SUBJECT TO DISCIPLINARY ACTION
largely upon the determination of the true nature of the action filed In the ff cases:
by a party w/c, in turn, involves the consideration of the ultimate
facts alleged as constitutive of the coa therein. a. When he deliberately files and unsigned pleading;
b. When he signs a pleading in violation of the rules;
Although part of the pleading, cannot create a coa; hence, it cannot
c. When he alleges scandalous/ indecent matter; or
be considered as a part of the allegationson the nature of coa.
d. When he failes to promptly report to the court a change of
It is a settled rule that a court cannot grant a relief not prayed for in his address.
the pleadings or in excess of that being sought.
SUBSTITUTION OF COUNSEL
GR: relief prayed for be specified.
No sub is allowed unless:
EXC: pleader may be allowed to include a general prayer for such
a. There is a written request for such substitution;
further/other relief as may be deemed just/equitable or if the facts
b. Filed w/ the written consent of the client; and
alleged in the complaint and the evidence introduced so warrant.
c. w/ the written consent of the counsel to be substituted or
w/ proof of service of notice of said motion to the counsel
to be substituted.
SECTION 3.
Section 3. Signature and address. – Every pleading must be signed by the
party or counsel representing him, stating in either case his address which
should not be a post office box.
SECTION 4.
Section 4. Verification. – Except when otherwise specifically required by law
The signature of counsel constitutes a certificate by him that he has read the or rule, pleadings need not be under oath, verified or accompanied by
pleading; that to the best of his knowledge, information, and belief there is affidavit .
good ground to support it; and that it is not interposed for delay.
A pleading is verified by an affidavit that the affiant has read the pleading
An unsigned pleading produces no legal effect. However, the court may, in its and that the allegations therein are true and correct of his knowledge and
discretion, allow such deficiency to be remedied if it shall appear that the belief.
same was due to mere inadvertence and not intended for delay. Counsel
who deliberately files an unsigned pleading, or signs a pleading in violation of A pleading required to be verified which contains a verification based on
this Rule, or alleges scandalous or indecent matter therein, or fails promptly "information and belief", or upon "knowledge, information and belief", or
report to the court a change of his address, shall be subject to appropriate lacks a proper verification, shall be treated as an unsigned pleading.
disciplinary action.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

VERIFICATION IN A PLEADING OTHER REQUIREMENTS

GR: pleadings need not be verified. a. Purpose: to protect the public by making it easier to detect
imposters.
EXC: if the Rules and jurisprudence so requires, as in the ff instances:
i. Prof Tax Receipt No.; and
a. Pet for relief from judgment/order (Sec. 3, Rule 38); ii. Current IBP OR No. indicating its date of issue.
b. Pet for review from the RTC to the CA (Sec. 1, Rule 42); b. Purpose: to protect the integrity of legal practice:
c. Pet for review from the quasi-judicial agencies to CA (Sec. i. Roll of Attys No.
5, Rule 43); c. Purpose: to ensure that legal practice is reserved only for those
d. Appeal by certiorari from the CTA to the SC; who have complied w/ the recognized mechanism for “keeping
e. Appeal by certiorari from CA to SC (Sec. 1, Rule 45); abreast w/ law and jurisprudence, maintaining the ethics of the
f. Pet for annulment of judgmens/final orders and profession, and enhancing the standards of the practice of law.
resolutions (Sec. 1, Rule 47); i. No. and date of issue of their MCLE Cert. Compliance/
g. Complaint for injunction (Sec. 4, Rule 58); Exemptions.
h. Pet for certiorari against judgments or final orders and
resolutions of constitutional commissions (Sec. 2, Rule 64);
i. Pet for certiorari, prohibition, mandamus, quo warrant.
SECTION 5.
Section 5. Certification against forum shopping. – The plaintiff or principal
j. Complaint for forcible entry/unlawful detainer (Sec. 4, Rule
party shall certify under oath in the complaint or other initiatory pleading
70); asserting a claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not theretofore commenced
HOW A PLEADING IS VERIFIED any action or filed any claim involving the same issues in any court, tribunal
or quasi-judicial agency and, to the best of his knowledge, no such other
Verified by an affidavit. This affidavit decalres that: action or claim is pending therein; (b) if there is such other pending action or
claim, a complete statement of the present status thereof; and (c) if he
a. Affiant has read the pleading; should thereafter learn that the same or similar action or claim has been filed
b. Allegations therein are true and correct of his personal or is pending, he shall report that fact within five (5) days therefrom to the
court wherein his aforesaid complaint or initiatory pleading has been filed.
knowledge or based on authentic records.
Failure to comply with the foregoing requirements shall not be curable by
It is substantially complied w/ when one has an ample knowledge to mere amendment of the complaint or other initiatory pleading but shall be
swear to the truth of the allegations in the complaint or pet signs cause for the dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing. The submission of a false
the verification, and when matters alleged in the petition have been
certification or non-compliance with any of the undertakings therein shall
made in good faith or are true and correct. constitute indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the acts of the party or
Verification may be made by the party, his representative, lawyer or his counsel clearly constitute willful and deliberate forum shopping, the same
any person who personally knows the truth of the facts alleged in shall be ground for summary dismissal with prejudice and shall constitute
direct contempt, as well as a cause for administrative sanctions.
the pleading.
CERTIFICATION AGAINST FORUM SHOPPING
EFFECT OF LACK OF VERIFICATION
Cert against forum shopping is a sworn statement in w/c the
A pleading required to be verified but lacks the proper verification
plaintiff/principal party certifies in a complaint/initiatory pleading to
shall be treated as an unsigned pleading. Hence, it produces no legal
the ff matters:
effect and it is dismissable.
a. He has not commenced any action/filed any claim
It has been held that the absence of a verification, or the non-
involving the same issue in any court, tribunal/quasi-
compliance w/ the verification requirement, does not necessarily
judicial agency, and, to the best of his knowledge, no such
other action/claim is pending therein;
b. That if there is such other pending action/claim, a
render the pleading defective. It is only a formal and not a
complete statement of the present status thereof; and
jurisdictional requirement. The requirement is a condition affecting
only the form of the pleading.
c. That if he should thereafter learn that the same/similar
The court may order its correction, or act on the pleading if the action/claim has been filed/is pending, he shall report that
attending circumstances in order that the ends of justice may be fact w/in five days therefrom to the court wherein his
served. aforesaid complaint/initiatory pleading has been filed.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

PURPOSE OF THE CERTIFICATION Illustrations (where there is no forum shopping):

It constitutes an assurance given to the court/other pending cases a. Where the reliefs sought in the two actions are different, there
involving basically the same parties, issues, and coa. is no forum shopping even if the parties in the actions are the
same. Where one action is for a permanent injunction and the
MEANING OF FORUM SHOPPING
other is a petition for certiorari, there is no identity of reliefs.
The act by a party of repetitively availing of several judicial remedies
in different courts, simultaneously/successively, all substantially b. Plaintiff filed an unlawful detainer case against the defendant
founded on the same transactions and the same essential facts, and based on violations of the terms of the lease conract w/c, at
all raising substantially the same issues either pending/already that time, had not yet expired. During the pendency of the case
resolved adversely by some other court. and after the lease contract had expired, a second case for
unlawful detainer was filed by the same. The second complaint
Requisites: disclosed the existence of the first case. The second suit was
based on the expiration of the lease contract.
a. Identity of parties, or at least such parties as represent the
same interest in both actions; Illustrations (w/ forum shopping):
b. Identity of rights asserted and relief prayed for, the relief being
founded on the same facts; a. The concept of forum shopping applies not only w/ respect to
c. The identity of two preceding particulars is such that any suits filed in the courts but also in connection w/ litigations
judgment rendered in the pending case, regardless of w/c party commenced in the courts while an admin proceeding is pending
is successful, would amount to res judicata in the other case. in order to defeat admin processes and in anticipation of an
unfavorable admin ruling.
Rationale:
WHO EXECUTES THE CERTIFICATION
Filing of multiple pets/complaints constitutes abuse of court
processess, w/c tends to degrade the administration of justice, GR: it is the plaintiff/principal party who executes the certification
wreaks havoc upon orderly judicial procedure, and adds to the under oath.
congestion of the heavily burdened dockets of the courts.
EXC: for justifiable reasos, the party-pleader is unable to sign, he
CERTIFICATION IS NOT A JURISDICTIONAL REQUIREMENT must execute a SPA designating his counsel of record to sign in his
behalf.
Certification is mandatory but not jurisdictional since juris over the
subj matter is conferred by law. Hence, absence of certification Reason: it is the petitioner and not the counsel who is in the best
would not affect the juris of the court. position to know whether he or it actually filed or caused the filing
of a petition.
3 WAYS OF COMMITTING FORUM SHOPPING
NB: a certification signed by counsel is a defective certification and a
a. Litis pendentia – filing multiple cases based on the same coa valid cause for dismissal.
and w/ the same prayer, the previous case not having been
resolved yet. WHEN PLAINTIFF IS A JURIDICAL ENTITY
b. Res judicata – filing multiple cases based on the same coa and
A corp can exercise its power to sue only upon authority of its
the same prayer, the previous case having been finally
BODs/BOTs exercising corporate powers. Hence, w/ respect to a
resolved.
corp must be executed by one who is duly authorized by a resolution
c. Splitting of coa – filing multiple cases based on the same coa,
of the BODs, ow, the complaint will have to be dismissed.
but w/ different prayers.
GR: BODs/BOTs of a corp must authorize the person who signs the
DETERMINATION OF THE EXISTENCE OF FORUM SHOPPING
verification and certification against forum shopping.
Test: whether the elements of litis pendentia or whether a final
EXC: officials/employees of a company can sign the verification and
judgment in one case will result to res judicata in another.
certification against forum shopping w/o need of board resolution:
IOW, the test is to see whether in the 2/more cases pending, there
a. BODs Chairperson;
is:
b. Pres. of the corp;
a. Indentity of parties; c. Gen. Manager/Acting GM;
b. Identity of rights/coa; and d. Personnel Officer; and
c. Identity of reliefs sought. e. Employment Specialist in a labor case.

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A belated submission of the written authority of the board was EFFECTS OF NON-COMPLIANCE W/ THE RULE ON CERTIFICATION
found to be a substatial compliance with the rules especially when
Violation of the rule does not authorize the court to dismiss a case
the acts of the officer in filing the pet were also ratified by the
board. on its own motion/initiative. The rule requires that dismiss be upon
motion and after hearing.
WHEN THERE ARE SEVERAL PLAINTIFFS/PETITIONERS
GR: if dismissed for failure to comply, dismissal (if silent) is w/o
GR: must be signed by all the plaintiffs/petitioners in a case; ow, prejudice.
those who did not sign will be dropped as parties to the case.
EXC: when the order of dismissal ow provides.
EXC: under reasonable or justifiable circumstances, however, as
From the order of dismissal where such dismissal is w/o prejudice,
when the plainiffs/petitioners share a common interest and invoke a
plaintiff cannot appeal from the order. Bec, as a rule, the order is
common cause/defense, signature of one of them substantially
complies w/ the Rule. not appealable. The remedy provided for is to avail of the
appropriate special civil action.
EXC to EXC: Rule will not be applied if dishonesty attended the
signing of the certification. GR: non-compliance/defect in the certification is not curable by its
subsequent submission/correction.
PLEADINGS REQUIRING A CERTIFICATION AGAINST FORUM
SHOPPING EXC: there were cases when the Court exercised leniecny and
relaxed the rules on the ground of substantial compliance, the
The cert against forum shopping applies to the complaint and other presence of special circumstances or compelling reasons.
initiatory pleadings asserting claim for relief. Initiatory pleadings,
meaning an incipient application of a party asserting a claim for Objections to non-compliance w/ the verification and certification
relief. should be raised in the proceedings below, and not first time on
appeal.
a. Original complaint;
b. Permissive cc; EFFECT OF WILLFUL AND DELIBERATE FORUM SHOPPING
c. C-c;
Shall be fround for summary dismissal. No motion to dismiss and
d. Third-party complaint;
hearing is required. Dismissal in this case is w/ prejudice and shall
e. C-i-intervention;
constitute direct contempt, as well as cause for admin sanctions.
f. Petition/any application in w/c a party asserts his claim for
relief. EFFECT OF SUBMISSION OF A FALSE CERTIFICATION

Not an initiatory pleading: Shall constitute indirect contempt of court w/o prejudice to the
corresponding admin and criminal sanctions.
A comment is not an initiatory pleading since it is merely an
expression of the views and observations of a respondent for the EFFECT OF NON-COMPLIANCE W/ THE UNDERTAKINGS
purpose of giving the court sufficient info as to whether the petition
is legally proper as a remedy to the acts complained of. Shall constitute indirect contempt of court w/o prejudice to the
corresponding sanctions.
No cert against forum shopping for a compulsory cc bec it cannot be
the subj of a separate and independent adjunction.

An ex parte petition is not an initiatory pleading. Although RULE 8


denominated as a petition, it does not aim to initiate a litigation but
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
is an incident to or a consequence of certain proceedings like
foreclosure proceedings. SECTION 1.
Section 1. In general. – Every pleading shall contain in a methodical and
APPLICABILITY TO A SPECIAL CIVIL ACTIONS
logical form, a plain, concise and direct statement of the ultimate facts on
which the party pleading relies for his claim or defense, as the case may be,
Certification applies to special civil actions since it is governed by the omitting the statement of mere evidentiary facts.
rules for ordinary civil actions, subj to the specific rulesprescribed
for a special civil action. If a defense relied on is based on law, the pertinent provisions thereof and
their applicability to him shall be clearly and concisely stated.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

ALLEGATIONS OF ULTIMATE FACTS SECTION 3.


Section 3. Conditions precedent. – In any pleading a general averment of the
The rule rquires that a pleading need only contain allegations of performance or occurrence of all conditions precedent shall be sufficient.
ultimate facts (facts essential to a party’s coa/defense.
ALLEGATIONS OF CONDITIONS PRECEDENT
It is to be stated in a methodocal and logical form, and in a plain,
concise, and direct manner. When a claim is subject to a condition precedent, the compliance of
the same must be alleged in the pleading.
PROHIBITED ALLEGATIONS
Examples:
Every pleading, including complaint, is not supposed to allege
conclusions. A pleading must only aver facts bec conclusions are for a. A tender of payment is required before making a consignation
the courts to make. (Art. 1256, NCC).
b. Exhaustion of admin remedies is required in certain cases
Every pleading shall omit from its allegations statements of mere before resorting to judicial actions.
evidentiary facts. Evidentiary facts are to be presented during trial of c. Prior resort to brgy conciliation proceedings is necessary in
the case, not in the pleadings of the parties. certain cases (Ch 7, Title I, Bk III, LGC).
EXC: in small claims cases, the statement of claim shall be d. Earnest efforts toward a compromise must be undertaken
accompanied by the affidavits of witness and other evidence when the suit is between members of the same family and if no
supporting the claim. efforts is made, the case must be dismissed (Art. 151, FC).

EFFECT OF FAILURE TO COMPLY

SECTION 2. Failure to comply w/ the rule is an independent ground for a motion


Section 2. Compulsory counterclaim, or cross-claim, not set up barred. – A to dismiss.
compulsory counterclaim, or a cross-claim, not set up shall be barred.

PLEADING ALTERNATIVE COA/DEFENSES


SECTION 4.
Under this rule, this situation is permissible as long as the allegations Section 4. Capacity. – Facts showing the capacity of a party to sue or be sued
pleaded w/in a particular coa are consistent w/ the coa relied upon or the authority of a party to sue or be sued in a representative capacity or
the legal existence of an organized association of person that is made a
as an alternative. Thus, if the alternative coa is a breach of contract,
party, must be averred. A party desiring to raise an issue as to the legal
the allegations therein must support the facts constituting the existence of any party or the capacity of any party to sue or be sued in a
breach of contract. representative capacity, shall do so by specific denial, which shall include
such supporting particulars as are peculiarly within the pleader's knowledge.
The rule does not require that all of the alternative coa be sufficient
for the plaintiff to be entitled to relief. It is enough that one of them, PLEADING CAPACITY TO SUE/BE SUED
if made independently, would be sufficient to support a coa. Facts showing the capacity of a party to sue/be sued must be
The same rule, likewise, permits alternative defenses. Under said averred. If a party is suing/sued in a representative capacity, his
rule, a party may set forth 2/more defenses alternatively or authority must also be averred. If a party is an organized association
hypothetically. of persons, its legal existence must be averred.

La Mallorca v. CA

Here, the plaintiffs were allowed to sue based upon a quasi-delict theory and
SECTION 5.
in the alternative, upon a breach of contract, where the death of their child Section 5. Fraud, mistake, condition of the mind. – In all averments of fraud
occurred when they were no longer on board the bus of the common carrier or mistake the circumstances constituting fraud or mistake must be stated
but at the time the father was in the process of retrieving the family’s with particularity. Malice, intent, knowledge, or other condition of the mind
personal belongings from the bus. Although, ultimately, the case was ruled to of a person may be averred generally.
be a breach of contract of carriage, the procedural device of pleading
alternative coa was strongly affirmed. PLEADING FRAUD, MISTAKE OR CONDITION OF THE MIND

Purpose: Fraud/mistake:

The joinder of the 2 coa’s against alternative defendants avoids When making averments of fraud/mistake, the circumstances
unnecessary multiplicity of suits. Where plaintiff cannot definitely constituting such must be stated w/ particularity.
identify 2/more coa’s.
This would help apprise the judge of the kind of fraud involved in the
complaint. The same is true w/ acts constituting mistakes.

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Malice, intent, knowledge, etc.: unless the adverse party, under oath specifically denies them, and sets forth
what he claims to be the facts, but the requirement of an oath does not
apply when the adverse party does not appear to be a party to the
May be averred generally.
instrument or when compliance with an order for an inspection of the
original instrument is refused.
The rule is borne out of human experience. It is difficult to state the
particulars constituting these matters. HOW TO CONTEST AN ACTIONABLE DOCUMENT

The party who has no intent of admitting the genuineness and due
execution of the doc, must contest the same by:
SECTION 6.
Section 6. Judgment. – In pleading a judgment or decision of a domestic or a. Specifically denying the genuiness and due execution of
foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision without setting forth matter
the doc under oath; and
showing jurisdiction to render it. b. Setting forth what he claims to be the facts.

PLEADING A JUDGMENT Mere specific denial is insufficient. It must be coupled w/ an oath.


Absence of an oath will result in the implied admission of the due
There is no need to allege matters showing juris to render judgment. execution and genuineness of the doc.
There is a presumption, though disputable, that a court/judge acting
as such, was acting in the lawful exercise of juris. WHEN AN OATH IS NOT REQUIRED

a. When adverse pary does not appear to be a party to the


instrument; or
SECTION 7.
b. When compliance w/ an order for an inspection of the orig
Section 7. Action or defense based on document. – Whenever an action or
instrument is refused.
defense is based upon a written instrument or document, the substance of
such instrument or document shall be set forth in the pleading, and the
original or a copy thereof shall be attached to the pleading as an exhibit, MEANING OF ADMISSION
which shall be deemed to be a part of the pleading, or said copy may with
like effect be set forth in the pleading. Admission of genuineness and due execution of an instrument is
meant that:
PLEADING ACTIONABLE DOCUMENTS
a. The party whose signature it bears admits that he signed it
An actionable doc is an instrument on w/c an action/defense is or that it was signed by another for him w/ his authority;
founded. b. At the time it was signed, it was in word and figures
exactly as set out in the pleadings of the party relying upon
Illustrations:
it;
a. In an action for collection of a sum of money, the actionable c. The doc was delivered; and
doc would be the promissory note executed by the defendant d. Any formal requisites required by law, such as seal,
in favor of the plaintiff. acknowledgement, or revenue stamp, w/c it lacks, are
b. In an action for foreclosure of mortgage, the actionable doc waived by him.
would be the deed of mortgage.
DEFENSES CUT OFF BY THE ADMISSION
c. If the defendant alleges that the debt has been paid, the receipt
of payment issued by the plaintiff would be the actionable doc. When a party is deemed to have admitted, defenses that are implied
from said admission are necessarily waived like the defenses of
Whenever actionable doc is the basis of a pleading, the rule
forgery of the doc or lack of authority to execute the doc.
specifically directs the pleader to:
DEFENSES NOT CUT OFF BY THE ADMISSION
a. Set forth the substance of the instrument, and attach the
orig/the copy of the doc to the pleading as an exhibit and Following defenses, among others, may be interposed despite the
w/c shall form part of the pleading; or implied admission:
b. W/ like effect, set forth said copy of the instrument .
a. Payment/non-payment;
b. Want of consideration;
SECTION 8. c. Illegality of consideration;
Section 8. How to contest such documents. – When an action or defense is
d. Usury; and
founded upon a written instrument, copied in or attached to the e. Fraud.
corresponding pleading as provided in the preceding section, the
genuineness and due execution of the instrument shall be deemed admitted These defenses are not inconsistent w/ the admission and are not,
therefore, barred.

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Illustration:
SECTION 9.
Section 9. Official document or act. – In pleading an official document or A complaint alleges: “plainiff extended a loan to defendant in the
official act, it is sufficient to aver that the document was issued or the act
amount of P500K on July 27, 2016 in Baguio City.” The defendant, in
done in compliance with law.
his answer, alleges: “Defendant specifcally denis that Plaintiff
PLEADING AN OFFICIAL DOCUMENT OR ACT extended a loan to Defendant in the amount of P500K in Baguio
City.”
It is sufficient that the doc was issued in compliance w/ law.
Notice that the answer is a mere repetition of the allegations made
in the complaint. The answer is vague as to what it really denies. The
SECTION 10. effect of this kind of denial may be an admission that he borrowed
Section 10. Specific denial. – A defendant must specify each material the amount alleged although he may be denying the place where
allegation of fact the truth of which he does not admit and, whenever the loan was contracted.
practicable, shall set forth the substance of the matters upon which he relies
to support his denial. Where a defendant desires to deny only a part of an WHEN A SPECIFIC DENIAL MUST BE COUPLED WITH AN OATH
averment, he shall specify so much of it as is true and material and shall deny
only the remainder. Where a defendant is without knowledge or information GR: a negative defense is sufficient if made in the form of a specific
sufficient to form a belief as to the truth of a material averment made to the
denial of the material allegations alleged in the pleading of the doc.
complaint, he shall so state, and this shall have the effect of a denial.

KINDS OF SPECIFIC DENIAL EXC: in certain cases, the specific denial must be made under oath
and, in these instances, a mere specific denial is not enough to
A general denial does not become specific by the use of the word produce the kind of denial required by the Rules:
“specifically.”
a. Denial of an actionable doc; and
There are 3 types of specific denial:
b. Denial of allegations of usury in a complaint to recover
a. Absolute denial – defendant specifies each material usurious int.
allegation of fact the truth of w/c he does not admit and,
whenever practicable, sets forth the substance of the
matters upon w/c he relies to support his denial. SECTION 11.
Section 11. Allegations not specifically denied deemed admitted. – Material
averment in the complaint, other than those as to the amount of
b. Partial denial – defendant does not make a total denial of unliquidated damages, shall be deemed admitted when not specifically
the material allegations in a specific paragraph. He denies denied. Allegations of usury in a complaint to recover usurious interest are
only a part of the averment. If he chooses this type of deemed admitted if not denied under oath.
denia, he specifies that part the truth of w/c he admits and
EFFECT OF ABSENCE OF A SPECIFIC DENIAL
denies only the remainder.
GR: material averments not specifically denied shall be deemed
c. Denial by disavowal of knowledge – defendant alleges admitted.
that he “is w/o knowledge/info sufficient to form a belief
as to the truth of a material averment made in the EXC: ff are nevertheless, not deedmed admitted by the failure to
complaint.” make specific denial:

NB: when the defendant alleges having no knowledge/info sufficient a. Amt of unliquidated damages;
to form a belief as to the truth of the allegations of the other party b. Conclusions in a pleading bec it is for the court to make
but such matters are plainly and necessarily w/in the defendant’s conclusions; and
knowledge, a claim of “ignorance/lack of info” will not be considered c. Non-material averments/allegations bec only material
as a specific denial. allegations have to be denied.

NEGATIVE PREGNANT If allegations are deemed admitted, there is no more triable issue,
and if the admissions appear in the answer of the defendant, the
A negative implying also an affirmative and w/c, although stated in plaintiff may file a motion for judgment on the pleadings pursuant
a negative form, really admits the allegations to w/c it relates. to Rule 34. For that purpose, only the pleadings of the parties are to
be considered.
It is a form of a negative expression w/c carries w/ it an affirmation
or at least an implication of some kind favorable to the adverse
party.

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PURPOSE OF A SPECIFIC DENIAL Res judicata and prescription of the claim:

To make him disclose the matters alleged in the complaint w/c he They have also been added as exceptions since they are grounds for
succinctly intends to disprove at the trial, together w/ the matter extinguishment of the claim. It would appear to be unduly technical,
w/c he relied upon to support the denial. if not contrary to the rule on unjust enrichment, to have the
defending party respond all over again for the same claim which has
The parties are compelled to lay their cards on the table.
already been resolved or is no longer recoverable under the law. It is
worth mentioning in this connection that, in Sec. 5 of Rule 16 as
amended, an order granting a motion to dismiss on the grounds,
SECTION 12. inter alia, of res judicata or prescription shall bar the refiling of the
Section 12. Striking out of pleading or matter contained therein. – Upon same action or claim.
motion made by a party before responding to a pleading or, if no responsive
pleading is permitted by these Rules, upon motion made by a party within The presence of any of these four grounds authorizes the court to
twenty (20) days after the service of the pleading upon him, or upon the
court's own initiative at any time, the court may order any pleading to be motu proprio dismiss the claim, that is, the claims asserted in a
stricken out or that any sham or false, redundant, immaterial, impertinent, or complaint, counter claim, cross-claim, third-party complaint or
scandalous matter be stricken out therefrom. complaint-in-intervention. In order that it may do so, it is necessary
that the constitutive facts of such grounds, if not in the answer with
evidence duly adduced there for, should appear in the other
RULE 9 pleadings filed or in the evidence of record in the case.

EFFECT OF FAILURE TO PLEAD


SECTION 2.
SECTION 1. Section 2. Compulsory counterclaim, or cross-claim, not set up barred. – A
Section 1. Defenses and objections not pleaded. – Defenses and objections compulsory counterclaim, or a cross-claim, not set up shall be barred.
not pleaded either in a motion to dismiss or in the answer are deemed
waived. However, when it appears from the pleadings or the evidence on COMPULSORY CC NOT SET-UP, BARRED
record that the court has no jurisdiction over the subject matter, that there is
another action pending between the same parties for the same cause, or The compulsory cc of defendant was dismissed for non-payment of
that the action is barred by a prior judgment or by statute of limitations, the docket fee, such dismissal is not a bar to his filing of the same cc in a
court shall dismiss the claim.
subsequent action instituted by the plaintiff involving the same subj
DEFENSES AND OBJECTIONS NOT PLEADED matter. The dismissal (w/o prejudice) of said cc does not constitute
res judicata bec it was not a determination on the merits of the cc.
Under the provision, the ff defenses are not waived even if not
raised in the motion to dismiss/in the answer: This is aside from the consideration that, since the dismissal of the
cc was premised on the postulate that for non-payment of the
a. Lack of juris over the subj matter; docket fee the court did not acquire juris thereover, then w/ much
b. Litis pendentia; more reason can there be no invocation of res judicata, not to speak
c. Res judicata; and of the fact that it was error for the trial court to order such dismissal
d. Prescription of the action. since the payment of docket fees is required only for permissive.
Lack of juris over the subj matter:

Lack of juris over the subj matter can always be raised anytime, SECTION 3.
even for the first time on appeal, since juris issues cannot be waived Section 3. Default; declaration of. – If the defending party fails to answer
within the time allowed therefor, the court shall, upon motion of the
but subj, however, to the principle of estoppel by laches.
claiming party with notice to the defending party, and proof of such failure,
declare the defending party in default. Thereupon, the court shall proceed to
Litis pendentia: render judgment granting the claimant such relief as his pleading may
warrant, unless the court in its discretion requires the claimant to submit
Such defense is included in the exceptions by reason of the fact that, evidence. Such reception of evidence may be delegated to the clerk of court.
since the other case is still pending, a resolution of the objection
(a) Effect of order of default. — A party in default shall be entitled to notice
raised on this ground should properly await the resolution of and
of subsequent proceedings but not to take part in the trial.
the developments in the other pending case. Upon the occurrence
of the relevant contingencies in that other case, this objection may (b) Relief from order of default. — A party declared in default may at any
time after notice thereof and before judgment file a motion under oath to
then be raised, unless already submitted to the court, which by then
set aside the order of default upon proper showing that his failure to answer
would be in a better position to appreciate the merits of this was due to fraud, accident, mistake or excusable negligence and that he has
objection. a meritorious defense. In such case, the order of default may be set aside on
such terms and conditions as the judge may impose in the interest of justice.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

(c) Effect of partial default. — When a pleading asserting a claim states a


FAILURE TO SERVE THE ANSWER TO THE ADVERSE PARTY
common cause of action against several defending parties, some of whom
answer and the others fail to do so, the court shall try the case against all Defendant who files his answer in time, but failed to serve a copy
upon the answers thus filed and render judgment upon the evidence thereof upon the adverse party, may validly be declared in default.
presented.
Failure is not, however, fatal bec the declaration of default may be
(d) Extent of relief to be awarded. — A judgment rendered against a party
in default shall not exceed the amount or be different in kind from that
set aside by a timely and proper motion w/ the requisite affidavit of
prayed for nor award unliquidated damages. merit and provided no loss of time occurs.

(e) Where no defaults allowed. — If the defending party in an action for EFFECT OF A DECLARATION/ORDER OF DEFAULT
annulment or declaration of nullity of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney to investigate whether Party declared in default loses his standing in court. The loss of
or not a collusion between the parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the evidence submitted is not
standing prevents him from taking part in the trial. He forfeits:
fabricated.
a. His rights as a party litigant;
NATURE OF DEFAULT b. Has no right to present evidence supporting his
allegations;
Default is a procedural concept that occurs when the defending c. To control the proceedings; and
party fails to file his answer w/in the reglementary period. A d. Cross-examine witnesses.
declaration/order of default is issued as a punishment for
unnecessary delay in joining issues. While the defendant can no longer take part in the trial, he is,
nevertheless, entitled to notices of subsequent proceedings. It is
The rule on default clearly establishes the “failure to answer w/in submitted that he may participate in the trial not as a party, but as a
the time allowed therefor” as the ground for a declaration of witness.
default. Default does not technically occur from the failure of the
defendant to attend either the pre-trial or the trial. A declaration of default is not tantamount to an admission of the
truth/the validity of the plaintiff’s claims.
Failure to attend the pre-trial does not result in the “default” of the
defendant. Instead, it shall be cause to allow the plaintiff to present EFFECT OF PARTIAL DEFAULT
his evidence ex parte and the court to render judgment on the basis
When a pleading asserts a claim against several defending parties
thereof.
and some file and serve their answers but the others do not, the
Failure of the defendant to attend the hearings for the presentation court shall try the case against all the defending parties based on
of the evidence of the adverse party amts not to a default, but to a the answers filed and render judgment upon the evidence presented
waiver of the defendant’s right to object to the evidence presented where the claim states a common coa against them.
during such hearings and cross-examine the witnesses presented.
Requisites:
REQUISITES TO DECLARE DEFENDING PARTY IN DEFAULT
a. there are 2/mor defendants;
a. The court has validly acquired juris over the person of the b. common coa’s; and
defending party, either by service of summons/voluntary c. common defenses.
appearance;
b. Claiming party must file a motion to declare the defending NB: if defense is purely personal, other defendant cannot benefit
party in default; from the answer.
c. Claiming party must prove that the defending party has failed
ACTION OF THE COURT AFTER THE DECLARATION/ORDER OF
to answer w/in the period provided by the ROC;
DEFAULT
d. Defending party must be notified of the motion to the declare
him in default; and When the party is declared in default, the court may do either of the
e. There must be a hearing of the motion to declare the defending 2 things:
party in default.
a. proceed to render judgment granting the claimant such
NO MOTU PROPIO DECLARATION OF DEFAULT relief as his pleading may warrant; or
b. require the claimant to submit evidence ex parte.
It has to be emphasized that the present rule on default requires the
filing of a motion and notice of such motion to the defending party, The action of w/c action to take is a matter of judicial discretion.
it is not enough that the defendant failed to answer the complaint
w/in the reglementary perion to be a sufficient ground for
declaration in default.

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COURT NOT REQUIRED TO RECEIVE EVIDENCE PERSONALLY default. Nevertheless, his son, the respondent in the case, and as
executor of his father’s estate, filed motion for leave to file a
Reception of evidence may be delegated to the clerk of court.
responsive pleading and 3 motions for extensions to file an answer,
ADMISSION OF ANSWER FILED OUT OF TIME all of w/c were granted by the court. Instead of filing a responsive
pleading, respondent later filed a motion for bill of particulars w/c
It is w/in the sound discretion of the trial court to permit the was also granted.
defendant to file his answer and be heard on the merits even after
the reglementary period for filing the answer expires. In the Court’s view, the effect is that the default order against the
former pres is deemed lifted.
Under the rules, the court may extend the time to plead upon
motion and upon such terms as are just. The court may also allow an NB: proper in the interest of justice.
answer or other pleading to be filed after the time fixed by the
EXTENT OF RELIEF IN A JUDGMENT BY DEFAULT
Rules.
The reliefs that may be granted in default situations shall not exceed
Where the answer is filed beyond the reglementary period but
the amt or be different in kind from that prayed for nor award
before the defendant is declared in default and there is no showing unliquidated damages.
that defendant intends to delay the case, the answer should be
admitted. CASES WHERE A DECLARATION/ORDER OF DEFAULT CANNOT BE
MADE
EXTENSION OF TIME TO ANSWER
Default is not allowed in the ff actions:
The rule is that the defendant’s answer should be admitted where it
is filled before a declaration of default and no prejudice is caused to a. annulment of marriage;
the plaintiff. b. declaration of nullity of marriage; and
c. legal separation.
It would be grave abuse of discretion to declare a defending party in
default despite his filing of an answer. If no answer is filed, the court shall order the prosecuting atty to
investigate won collusion exists between parties. If there is no
REMEDIES OF A DEFENDING PARTY DECLARED IN DEFAULT
collusion, court shall order the same atty to intervene for the State
After notice of order and before judgment – party may, at any time, in order to see to it that the evidence submitted is not fabricated.
file a motion under oath to set aside the order of default and
JUDGMENT BY DEFAULT FOR REFUSAL TO COMPLY W/ THE MODES
properly show that:
OF DISCOVERY
a. failure to answer was due to fraud, accident, mistake, or
GR: a default order and, consequently, a default judgment is
excusable negligence (FAME); and
triggered by the failure of the defending party to file the required
b. he has a meritorious defense contained in an affidavit of
answer.
merit.
EXC: a judgment by default may be rendered in the ff cases despite
After judgment and before it becomes final and executory – he may
an answer having been filed:
file a motion for new trial. he may aslo appeal from the judgment as
being contrary to the evidence or the law. a. if a disobedient party refuses to obey an order requiring
him to comply w/ the various modes of discovery; or
After judgment becomes final and executory – defendant may file a b. if a party/officer/managing agent of a party willfully fails to
petition for relief from judgment under Rule 38. appear before the officer who is to take his deposition, or
a party fails to serve answers to interrogations.
CURRENT JUDICIAL TREND ON DEFAULTS
FAILURE TO FILE RESPONSE UNDER THE RULES OF PROCEDURE ON
Courts are enjoined to be liberal in setting aside orders of default.
SMALL CLAIMS CASES
Default orders shall be allowed only in clear cases of obstinate
refusal by the defendant to comply w/ the orders of the trial court. A motion to declare the defendant in default is a prohibited motion
under Sec. 16(h) of the Rules of Pro for Small Claims Cases.
IMPLIED LIFTING OF THE ORDER OF DEFAULT
FAILURE TO FILE A RETURN UNDER THE RULES ON WRIT OF
In one case, former Pres Marcos was declared in default for failure
AMPARO
to file an answer. He died in Hawaii as an exile while his case was
pending. His representatives failed to file a motion to lift order of The rules prohibits, under Sec. 11(h) thereof, a motion to declare
the respondent in default.

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Upon service of the writ, the respondent is required to file a cerified HOW IS AMENDMENT BEING DONE
written return w/c, among others, contains his lawful defenses. In
case respondent fails to file a return, the court shall proceed to hear Pleadings may be amended in the ff manner:
the petition ex parte.
a. adding/striking out an allegation/name of any party; or
FAILURE TO FILE A RETURN UNDER THE RULES ON WRIT OF b. correcting mistake in the name of a party; or
HABEAS DATA c. correcting mistaken/inadequate allegations/descripion in
any other respect – so that actual merits of the
The rules, under Sec. 13(h) thereof, does not allow the filing of a controversy may be speedily be determined.
motion to declare the respondent in default. If the resondent fails to
file his return, the court, judge or justice shall proceed to hear the EFFECTS OF THE AMENDMENT OF THE PLEADING
petition ex parte, granting the petitioner such relief as the petition
GR: filing of amended pleading does not retroact to the date of filing
may warrant, unless the court, in its discretion, requires the
of the original, hence, the statute of limitation runs until the filing of
petitioner to submit evidence.
the amendment.
FAILURE TO FILE AN ANSWER UNDER THE REVISED RULES OF
EXC: amendment w/c merely supplements and amplifies facts
SUMMARY PROCEDURE
originally alleged in the complaint relates back to the date of the
A motion to declare the defendant in default is a prohibited motion commencement of the action and is not barred by the statute of
under Sec. 19(h) of the said rule. Failure to file an answer, the court limitations.
motu propio, or on the motion of the plaintiff, shall render
NB: it is the actual filing in court that controls, and not the date of
judgment as may be warranted by the facts alleged in the complaint
the formal admission of the amended pleading.
and limited to what is prayed for.
AMENDMENT FILED TO CORRECT A DEFECT

Where the orig complaint states a coa but does it imperfectly, and
RULE 10 afterwards an amended complaint is filed correcting the defect, the
plea of prescription will realate to the time of the filing of the orig
AMENDED AND SUPPLEMENTAL PLEADINGS
complaint.
SECTION 1.
However, the rule does not apply to the party who was impleaded
Section 1. Amendments in general. – Pleadings may be amended by adding
for the first time in the amended complaint w/c was filed after the
or striking out an allegation or the name of any party, or by correcting a
mistake in the name of a party or a mistaken or inadequate allegation or period of prescription had already lapsed, hence the amended
description in any other respect, so that the actual merits of the controversy complaint must be dismissed as to such party who was thus
may speedily be determined, without regard to technicalities, and in the belatedly included in the action.
most expeditious and inexpensive manner.
NATURE AND EFFECTS OF SUBSTANTIAL AMENDMENT
AMENDMENT, defined.
An amended complaint that changes the plaintiff’s coa is technically
An act of adding, changing, substituting, or omitting something from
a new complaint, consequently, the action is deemed filed on the
a pleading, or instrument.
date of the filing of its orig version.
BASIC CONCEPTS
Thus, the statute of limitation resumes its run until it is arrested by
It is the correction of an error committed in any process, pleading, the filing of the amended pleading.
or proceeding, and w/c is done either as of course, or by the consent
AMENDMENT TO PLEADINGS ALLOWED LIBERALLY
of parties, or upon motion to the court in w/c the proceeding is
pending. The rule is that amendments should be liberally allowed. This
liberality at the outset of action decreases as the case moves to its
Amendments to a pleading should be indicated in the amended
termination.
pleading making them readily evident (by underscoring, encloding
w/ quotation marks, in capital letters). AMENDMENT TO PLEADINGS PERMITTED EVEN FIRST TIME ON
APPEAL
Amended pleading supersedes the original pleading w/c is deemed
w/drawn and no longer constitutes part of the record. Provided: w/o changing the coa or causing unfair prejudice to the
other party.

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Purpose is to: AMENDMENT AS A MATTER OF RIGHT: MOTION TO DISMISS (MTD)


NO A RESPONSIVE PLEADING
a. correct a defect of party plaintiff (as where it is merely to
include the husband of plaintiff wife); or Responsive pleading are those w/c seeks affirmative relief and/or set
b. substitute the name of the real party in interest. up defenses, like an answer.

Example (b): A motion to dismiss is not a responsive pleading and so the duty of
the trial court is to admit the amended complaint.
Since a sole proprietorship is a business organization w/o juridical
personality to sue, an amendment to substitute the owner thereof Even if the motion to dismiss is granted by the court, the plaintiff
as plaintiff is only a formal amendment under Sec 4, Rule 10. may still amend his complaint as a matter of right before the
dismissal becomes final as long as no answer has been served.
KINDS OF AMENDMENT
REMEDY IN CASE OF DENIAL OF MOTION TO AMEND AS A MATTER
a. amendment as a matter of right;
OF RIGHT
b. amendment by leave of court;
c. substantial amendment; Proper remedy in case of denial of the motion is to file a petition for
d. amendment to confer juris; mandamus under Sec. 3, Rule 65, since it is a ministerial duty on the
e. formal amendment; part of the court to allow amendment on the pleading before the
f. amendment to conform to evidence. filing of a responsive pleading.

SECTION 2. SECTION 3.
Section 2. Amendments as a matter of right. – A party may amend his Section 3. Amendments by leave of court. – Except as provided in the next
pleading once as a matter of right at any time before a responsive pleading is preceding section, substantial amendments may be made only upon leave of
served or, in the case of a reply, at any time within ten (10) days after it is court. But such leave may be refused if it appears to the court that the
served. motion was made with intent to delay. Orders of the court upon the matters
provided in this section shall be made upon motion filed in court, and after
AMENDENT AS A MATTER OF RIGHT notice to the adverse party, and an opportunity to be heard.

A party has the right to amend his pleading as a matter of right. AMENDMENT BY LEAVE OF COURT

Provided: (a) it is amended only once; and (b) before a responsive Leave of court is required for an amendment made after service of a
pleading is served. responsive pleading. This rule assumes more force and effect
especially when the amendment is substantial.
WHEN CAN BE MADE AS A MATTER OF RIGHT
CAN COURT REFUSE TO GRANT THE LEAVE
A party may amend his pleading once as a matter of right at any
time: Yes, such leave may be refused if it appears to the court that the
motion was made w/ intent to delay.
a. before a responsive pleading is served; or
b. in the case of a reply, at any time w/in 10 days after it is REQUIREMENTS FOR THE ALLOWANCE OF LEAVE OF COURT
served.
Orders of the court upon the matters provided in this Sec. shall be
In either case, there is no need to file a motion for leave to amend made upon:
the pleading. After the service of a responsive pleading, a party can
a. a motion filed in court;
amend his pleading only upon prior leave of court.
b. after notice to the adverse party; and
Sec. 2, Rule 10 refers to an amendment made before the trial court, c. an opportunity to be heard.
not before the CA.
AMENDMENT W/ LEAVE OF COURT SHALL BE APPLIED W/
The right to amend a pleading as a matter of right may be exercised LIBERALITY BY REASON OF PUBLIC POLICY
only once. Hence, even if no responsive pleading has yet been
Courts are impelled to treat motions for leave to file amended
served, if the amendment is subsequent to a previous amendment
pleadings w/ liberaltiy. Bona fide amendments to pleadings should
made as a matter of right, the subsequent amendment must be w/
be allowed in the interest of justice so that every case may be
leave of court.
determined on its real facts and multiplicity of suits thus be
prevented.

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As long as it does not appear that the motion for leave was made w/ necessary to cause them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even after judgment;
bad faith or w/ intent to delay the proceedings, courts are justified but failure to amend does not effect the result of the trial of these issues. If
to grant leave and allow the filing of an amended pleading. evidence is objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings to be
Grant by court becomes binding and will not be disturbed on appeal amended and shall do so with liberality if the presentation of the merits of
unless it appears that the court had abused its discretion. the action and the ends of substantial justice will be subserved thereby. The
court may grant a continuance to enable the amendment to be made.
SUBSTANTIAL AMENDMENT
AMENDMENT TO CURE A FAILURE TO STATE A CAUSE OF ACTION;
It is a kind of amendment w/c changes the plaintiff’s coa or adding TO CONFORM TO THE EVIDENCE
new parties, and is technically a new complaint.
1. Issues not raised – wherein evidence not w/in the issues raised
Substantial amendments may be allowed. in the pleadings, is offered by the parties during the trial and not
objected to.
Provided: (a) pleader obtains leave of court; (b) shall serve the
higher interest of substantial justice; and (c) it is not made w/ intent Said issues not found in the pleadings are deemed to have been
to delay proceedings. tried w/ the consent of the parties. The rules treats the issues as
having been raised in the pleadings even if not actually raised.
Substantial alteration in the coa/defense is not a bar to the
amendment of the orig complaint so long as the amendment is not 2. Evidence presented during trial – a complaint insufficiently
for delay. states the coa. Such insufficiency may be cured by evidence
presented during the trial w/o objection.
REMEDY IN CASE OF DENIAL OF THE MOTION FOR LEAVE TO
AMEND Also, if complaint failed to aver the fact that certain conditions
precedent were undertaken and complied w/, the failure to so
Proper remedy is petition for certiorari under Rule 65, since order allege may be corrected by evidence of compliance w/ said
denying the motion is merely discretionary and for being conditions w/o objection from the other pary.
interlocutory w/c is not appealable, and if the denial is tainted w/
grave abuse of discretion amounting to lack/in excess of juris. Effect: the plaintiff may, if he desires, then move for the
amendment of his complaint to conform to the evidence.

AMENDMENT TO CONFORM TO THE EVIDENCE


SECTION 4.
Section 4. Formal amendments. – A defect in the designation of the parties When a party presents evidence on a matter not in issue, the
and other clearly clerical or typographical errors may be summarily corrected adverse party has a reason to object.
by the court at any stage of the action, at its initiative or on motion, provided
no prejudice is caused thereby to the adverse party. Rationale:
WHAT ARE COVERED BY FORMAL AMENDMENT a. A party cannot breach basic procedural rule that the trial court
can deal only w/ matters raised by the parties.
Formal amendment can be made in the pleadings involving:
b. Neither can a court render judgment on a matter not in issue
a. a defect in the designation of the parties; bec a judgment must conform to the pleadings.
b. other clearly clerical/typographic errors.
But, when issues not raised are tried w/ the express/implied consent
HOW WILL FORMAL AMENDMENT BE MADE of the parties, such as when no objection is made, such issues not
raised shall be treated as if they had been put in issue.
May be summarily corrected by the court at any stage of the action
by: The Rule authorizes the amendment of the pleadings to conform to
the evidence upon motion of the party at any time, even after
a. at its intitiative; or judgment.
b. upon motion of any party, provided no prejudiec is caused
thereby to the adverse party. If the evidence is objected, the court may allow the pleadings to be
amended. Failure of the party to amend the pleadings will not affect
the trial of these issues since issues are deemed to have been raised
SECTION 5. in the pleadings of the parties.
Section 5. Amendment to conform to or authorize presentation of evidence. –
When issues not raised by the pleadings are tried with the express or implied
N.B. curing effect applies only if a coa in fact exists at the time the
consent of the parties they shall be treated in all respects as if they had been complaint is filed, but the complaint is defective for failure to allege
raised in the pleadings. Such amendment of the pleadings as may be the essential facts.

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AMENDMENT TO CORRECT JURIS’L DEFECT BEFORE A RESPONSIVE A supplemental pleading only serves to bolster/add something to
PLEADING IS SERVED the primary pleading. It exists side by side w/ the orig. it does not
replace that w/c it supplements.
Jurisprudence recognizes the right of a pleader to amend his
complaint before a responsive pleading is served even if its effect is PERIOD TO FILE A RESPONSIVE PLEADINT TO A SUPPLEMENTAL
to correct a juris’l defect. Such amendment is a matter of right. PLEADING

AMENDMENT TO CORRECT JURIS’L DEFECT AFTER A RESPONSIVE Adverse party may plead thereto w/in 10 days from notice of the
PLEADING IS SERVED order admitting the supplemental pleading.

An amendment of the complaint to correct a juris’l error cannot be


validly done after a responsive pleading is served.
SECTION 7.
The amendment this time, would require leave of court, a metter Section 7. Filing of amended pleadings. – When any pleading is amended, a
new copy of the entire pleading, incorporating the amendments, which shall
w/c requires the exercise of soud judicial discretion. The exercise of
be indicated by appropriate marks, shall be filed.
this discretion requires the positive act by the court.
REQUIREMENTS IN THE FILING OF AN AMENDED PLEADING

When any pleading is amended it shall be w/:


SECTION 6.
Section 6. Supplemental pleadings. – Upon motion of a party the court may, a. A new copy of the entire pleading; and
upon reasonable notice and upon such terms as are just, permit him to serve
b. Incorporating the amendments, w/c shall be indicated by
a supplemental pleading setting forth transactions, occurrences or events
which have happened since the date of the pleading sought to be appropriate marks, shall be filed.
supplemented. The adverse party may plead thereto within ten (10) days
from notice of the order admitting the supplemental pleading.

SUPPLEMENTAL PLEADINGS SECTION 8.


Section 8. Effect of amended pleadings. – An amended pleading supersedes
It is one w/c sets forth transactions, occurrences, or events w/c have the pleading that it amends. However, admissions in superseded pleadings
happened since the date of the pleading sought to be may be received in evidence against the pleader, and claims or defenses
alleged therein not incorporated in the amended pleading shall be deemed
supplemented. waived.

Filing of supplemental pleadings requires leave of court. The court EFFECTS OF AND AMENDED PLEADING
may allow the pleading only upon such terms as are just. This leave
is sought by the filing of a motion w/ notice to all parties. An amended pleading shall have the ff effects, to wit:

ADMISSION OF SUPPLEMENTAL PLEADING a. It supersedes the pleading that it amends;


b. Admissions in the superseded pleadings may be received
Court may admit supplemental pleading but the admission of these in evidence against the pleader;
pleadings remains in the sound discretion of the court. c. Claims/defenses alleged therein not incorporated in the
AMENDED PLEADING v. SUPPLEMENTAL PLEADING amended pleading shall be deemed waived;
d. Admissions made in the orig pleading shall be treated as
Amended Pleading Supplemental Pleading an extrajudicial admission w/c shall be alleged and
Filing may either be as a matter Filing is always w/ leave of proved;
of right or w/ leave of court. court. e. Any ancilliary order/remedy issued in the orig pleading
Alleges facts that occurred Alleges facts occuring after the shall be deemed vacated/lifted;
before the filing of the orig filing of the orig pleading. f. It requries another certification of non-forum shopping if
pleading. it is a substantial amendment of the orig complaint; and
Supersedes the orig pleading, Does not supersedes the orig g. In case complaint is amended, it requires the service of
amends. pleading but assumes that the summons if defendant has not yet appeared before the
orig pleading is to stand. court and submitted to its jurisdiction.

SUMMONS AFTER COMPLAINT IS AMENDED; WHEN REQUIRED


COA IN SUPPLEMENTAL PLEADINGS AND WHEN NOT

When the coa in the supplemental pleadings is different from the Although the orig complaint is deemed superseded by the pleading
coa mention in the orig compalint, the court should not admit the that amends it, it does not ipso facto follow that service of new
supplemental complaint. summons is required.

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When the defendants already appeared before the trial court by


virute of summons in the orig complaint, the amended complaint PERIODS TO FILE ANSWER TO A COMPLAINT
may be served upon them w/o need of another summons, even if
new coa are alleged. The defendant shall file his answer to the complaint 15 days after
service of summons, unless a different period is fixed by the court.
Reason: a court’s juris, once it is acquired, continues until the case is
finally determined. Where the plaintiff files an amended complaint as a matter of right,
the defendant shall answer the amended complaint w/in 15 days
When summons is required: after being served w/ a copy thereof

a. Defendants have not yet appeared in court; and Where the filing of the amended complaint is not a matter of right,
b. New defendant is impleaded. the defendant shall answer w/in 10 days from notice of the order
admitting the same.
Defendants have not yet appeared in court:
N.B. an answer earlier filed may serve as the answer to the amended
New summons for the amended complaint must be served on them, complaint if no new answer is filed.
it is not the change of coa that gives rise to the need to serve
another summons for the amended compalint but rather the Where the defendant is a private foreign juridical entity and service
acquisition of juris over the persons of the defendants. of summons is made on the govt official designated by law to
receive the same, answer shall be filed w/in 30 days from receipt of
New defendant is impleaded:
summons.
Summons must be served upon him so that the court may acquire
In cases where summons had been served through extraterritorial
juris over his person bec, logically, the new defendant cannot be service, the period to answer is 60 days from service of summons.
deemed to have already appeared by the virtue of summon under
the orig complaint in w/c he was not yet a party.

SECTION 4.
Section 4. Answer to counterclaim or cross-claim. – A counterclaim or cross-
RULE 11 claim must be answered within ten (10) days from service.

WHEN TO FILE RESPONSIVE PLEADINGS PERIOD TO ANSWER A CC

SECTION 1. The answer must be made w/in 10 days from service. This rule has
mor relevance to a permissive cc w/c has to be answered.
Section 1. Answer to the complaint. – The defendant shall file his answer to
the complaint within fifteen (15) days after service of summons, unless a
different period is fixed by the court. PERIOD TO ANSWER A C-C

10 days from service.


SECTION 2.
Section 2. Answer of a defendant foreign private juridical entity. – Where the
defendant is a foreign private juridical entity and service of summons is made
on the government official designated by law to receive the same, the SECTION 9.
answer shall be filed within thirty (30) days after receipt of summons by such Section 9. Counterclaim or cross-claim arising after answer. – A counterclaim
entity. or a cross-claim which either matured or was acquired by a party after
serving his pleading may, with the permission of the court, be presented as a
SECTION 3. counterclaim or a cross-claim by supplemental pleading before judgment.
Section 3. Answer to amended complaint. – When the plaintiff files an
amended complaint as a matter of right, the defendant shall answer the
HOW TO SET UP A CC ARISING AFTER THE ANSWER
same within fifteen (15) days after being served with a copy thereof.
A cc, w/c either matured/acquired by a party after serving his
Where its filing is not a matter of right, the defendant shall answer the pleading, may, w/ the permission of the court, be presented as a cc
amended complaint within ten (l0) days from notice of the order admitting by supplemental pleading before judgment.
the same. An answer earlier filed may serve as the answer to the amended
complaint if no new answer is filed. HOW TO SET UP A C-C ARISING AFTER THE ANSWER
This Rule shall apply to the answer to an amended counterclaim, amended A c-c w/ either matured/acquired by a party after serving his
cross-claim, amended third (fourth, etc.)—party complaint, and amended
complaint-in-intervention. pleading may, w/ the permission of the court, be presented as a c-c
by supplemental pleading before judgment.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

EXISTING CC/C-C
SECTION 10.
Section 10. Omitted counterclaim or cross-claim. – When a pleader fails to A cc/c-c that a party has at the time the answer is filed shall be
set up a counterclaim or a cross-claim through oversight, inadvertence, or contained in said answer, ow, if not set up, it shall be barred (exc for
excusable neglect, or when justice requires, he may, by leave of court, set up
the counterclaim or cross-claim by amendment before judgment.
permissive cc).

HOW TO SET UP AN OMITTED CC


SECTION 11.
A cc not initially set up bec of the pleader’s oversight, inadvertence,
Section 11. Extension of time to plead. – Upon motion and on such terms as
excusable neglect, or when justice requires, may be set up, by leave
may be just, the court may extend the time to plead provided in these Rules.
of court, by amendment before judgment.
The court may also, upon like terms, allow an answer or other pleading to be
If not set up in the action of, the compulsory cc shall be barred. A filed after the time fixed by these Rules.
permissive cc however, shall not be barred.
EXTENSION OF THE TIME TO ANSWER
HOW TO SET UP AN OMITTED C-C
The trial court has the discretion not only to extend the time for
When a pleader fails to set up a c-c through oversight, inadvertence, filing an answer but also to allow an answer to be filed after the
or excusable neglect, or when justice requires, he may, by leave of reglementary period.
court, set up a c-c by amendment before judgment.
The courts discretion to grant a motion for extension is conditioned
upon such motion’s timeliness. Since the motion for extension was
filed after the lapse of the prescribed period, there was no more
SECTION 5.
period to extend.
Section 5. Answer to third (fourth, etc.)-party complaint. – The time to
answer a third (fourth, etc.)—party complaint shall be governed by the same
rule as the answer to the complaint.
COURSES OF ACTION OF THE COURT

ANSWER TO A THIRD-PARTY COMPLAINT a. Extend the time to pleade upon motion and upon such
terms as are just.
Shall be governed by the same rule as the answer to the complaint. b. Court may also allow an answer or other pleading to be
Hence, w/in 15 days from service of summons. filed after the time fixed by the Rules.

The rule is that the defendant’s answer should be admitted where it


SECTION 6. is filed before declaration of default and no prejudice/delay is
Section 6. Reply. – A reply may be filed within ten (10) days from service of caused to the plaintiff. It would be grave abuse of discretion to
the pleading responded to. declare a defending party in default despite his filing of an answer.

PERIO TO FILE A REPLY N.B. default judgments are generally disfavored.

W/in 10 days from service of the pleading responded to. FILING OF MOTION FOR EXTENSION TANTAMOUNTS TO
SUBMISSION TO COURT’S JURIS

Filing of a motion for time is considered a submission to the juris of


SECTION 7.
the court.
Section 7. Answer to supplemental complaint. – A reply may be filed within
ten (10) days from service of the pleading responded to.

ANSWER TO A SUPPLEMENTAL PLEADING; NOT MANDATORY


RULE 12
The filing of an answer to supplemental pleading is not mandatory.
BILL OF PARTICULARS
This is bolstered by the express provision of the Rule that the answer
to the orig pleading shall serve as the answer to the supplemental SECTION 1.
pleading if no new answer is filed.
Section 1. When applied for; purpose. – Before responding to a pleading, a
party may move for a definite statement or for a bill of particulars of any
matter which is not averted with sufficient definiteness or particularity to
enable him properly to prepare his responsive pleading. If the pleading is a
SECTION 8. reply, the motion must be filed within ten (10) days from service thereof.
Section 8. Existing counterclaim or cross-claim. – A compulsory counterclaim Such motion shall point out the defects complained of, the paragraphs
or a cross-claim that a defending party has at the time he files his answer wherein they are contained, and the details desired.
shall be contained therein.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

BASIC CONCEPT
a. Malice;
Bill of Particulars – is a more definite statement of fact and material b. Intent;
allegations in the pleadings. c. Knowledge; or
d. Condition of the mind.
What is an MBP – it is an application before the court for a more
definite statement of facts and material allegations in the pleading. WHEN MOTION WOULD BE PROPER

Nature of a MBP – a formal and litigated motion w/c must be in It would not be incorrect to move for a bill of particulars to require
writing and requires notice to the adverse party and hearing. the averment of the particular circumstances of:

WHEN CAN A PARTY APPLY FOR MBP a. Fraud; or


b. Mistake.
Under the Rules, the defendant is required to answer the complaint
w/in 15 days from service of summons, the defendant need not to
file his answer if there are matters in the complaint, w/c are vague
SECTION 2.
and ambiguous or not averred with sufficient definiteness. Instead,
Section 2. Action by the court. – Upon the filing of the motion, the clerk of
he may file a motion for bill of particulars. court must immediately bring it to the attention of the court which may
either deny or grant it outright, or allow the parties the opportunity to be
It is a motion that applies to any pleadings. heard.

WHEN TO FILE THE MOTION ACTION OF THE COURT

It is to be filed before responding to a pleading. The period to the file Upon receipt of the motio, the clerk of court must immediately bring
the motion refers to the period for the filing the responsive pleading the same to the attention of the court.
in Rule 11.
The court has 3 possible options, namely:
PURPOSE OF THE MOTION
a. To deny the motion outright;
To seek an order from the court directing the pleader to submit a bill b. To grant the motion outright; or
of particulars w/c avers matters w/ “sufficient c. To hold a hearing on the motion or allow the parties the
definiteness/particularity” to enable the movant to properly prepare opportunity to be heard.
his responsive pleading.
The options available to the court disclose that a hearing is not
IOW, to clairfy the allegations in the pleading so an adverse party mandatory before it denies or grants the motion.
may be informed w/ certainty of the exact character of the
coa/defense. Ow, movant may be deprived of the opportunity to
submit an intelligent responsive pleading. SECTION 3.
PURPOSE OF THE MOTION IN A CRIMINAL CASE Section 3. Compliance with order. – If the motion is granted, either in whole
or in part, the compliance therewith must be effected within ten (10) days
from notice of the order, unless a different period is fixed by the court. The
Purposes of the motion are to enable the movant to:
bill of particulars or a more definite statement ordered by the court may be
filed either in a separate or in an amended pleading, serving a copy thereof
a. Properly plead; and on the adverse party.
b. Prepare for trial.
COMPLIANCE W/ THE ORDER
REQUIREMENTS FOR THE MOTION
If motion is granted, in whole or in part, the court shall order the
Aside from the requirements for a motion as set forth in Rule 15, the pleader to submit a bill of particulars to the pleading to w/c the
motion shall point out the: motion is directed.
a. Defects complained of; Compliance must be effected w/in 10 days from notice of the order,
b. Paragraphs wherein they are contained; and unless a different period is fixed by the court.
c. Details desired.
In complying w/ the order, the pleader may file the bill of particulars
WHEN MOTION WOULD NOT BE PROPER or a more definite statement either in:
It would not be proper for a motion to call for the production of the a. a separate pleading; or
particulars constituting: b. in the form of an amended pleading.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

A copy thereof is required to be served upon the adverse party.


In case of denial, moving party In case of denial, accused may
may file his responsive pleading proceed w/ the arraignment and
SECTION 4. w/in the period he is entitled to enter his plea, unles the denial is
Section 4. Effect of non-compliance. – If the order is not obeyed, or in case of
but in no case less than five tainted w/ grave abuse of
insufficient compliance therewith, the court may order the striking out of the days, unless the denial is tainted discretion, party may file a
pleading or the portions thereof to which the order was directed or make w/ grave abuse of discretion, petition for certiorari.
such other order as it deems just.
hence, petition for certiorari.
EFFECT OF NON/INSUFFICIENT COMPLAINCE W/ THE ORDER

If order is not obeyed/if there is an insufficient compliance of the SECTION 6.


order, the court has the ff options: Section 6. Bill a part of pleading. – A bill of particulars becomes part of the
pleading for which it is intended.
a. order the striking out of the pleading;
b. order the striking out of the portions of the pleading to BILL OF PARTICULARS AS PART OF THE PLEADING
w/c the order was directed; or
The bill of particulars submitted becomes part of the pleading for
c. make such order it may deem just.
w/c it is intended.

SECTION 5.
Section 5. Stay of period to file responsive pleading. – After service of the bill RULE 13
of particulars or of a more definite pleading, or after notice of denial of his
motion, the moving party may file his responsive pleading within the period FILING AND SERVICE OF PLEADINGS, etc.
to which he was entitled at the time of filing his motion, which shall not be
less than five (5) days in any event. SECTION 1.
Section 1. Coverage. – This Rule shall govern the filing of all pleadings and
STAY OF PERIOD TO FILE RESPONSIVE PLEADING
other papers, as well as the service thereof, except those for which a
different mode of service is prescribed.
A motion for bill of particulars is not a pleading; hence, not a
responsive pleading. COVERAGE OF THE RULES

WON the motion of the movant is granted, he may file his This sec. shall govern the ff:
responsive pleading. When he files a motion, the period to file the
responsive pleading is stayed/interrupted. a. filing of all pleadings and other papers;
b. as well as the service of the said pleadings and other
After service of the bill of particulars/of a more definite papers;
pleading/after notice of the denial of his motions, the movant may c. except those for w/c a different mode of service is
file his responsive pleading w/in the period to w/c he was entitled at prescribed.
the time the motion was filed.

If the movant has less than 5 days to file his pleading, the period to
file such shall, nevertheless, be not less that 5 days in any event. SECTION 2.
Section 2. Filing and service, defined. – Filing is the act of presenting the
DISTINCTION BETWEEN MBP IN CIVIL CASES AND IN CRIMINAL pleading or other paper to the clerk of court.
CASES
MEANING OF “FILING”
BP in Civil Cases BP in Criminal Cases
It is the act of presenting the pleading or other paper to the clerk of
(Rule 12) (Rule 116)
court.
Must be filed before the filing of Must be filed before
a responsive pleading/in a case arraignment. MEANING OF “SERVICE”
of a reply w/in 10 days from
The act of providing a party w/ a copy of the pleading/paper
receipt thereof.
concerned.
Directed against pleadings. Directed against a criminal
complaint/information. UPON WHOM SERVICE SHALL BE MADE

Party not appeared by counsel – service must be made upon him.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

Party has appeared by counsel – service upon party shall be made When the photocopy of a registry receipt bears an earlier date but it
upon his counsel/one of them, unless upon the party himself is is not authenticate, the Cour held that the later date stamped on the
ordered by the court. evelope shall be considered as the date of filing.

Rule: When a party is respresented by counsel, notices of all kinds DATE OF MAILING IS THE DATE OF FILING
must be served on said counsel and notice to him is notice to the
client. If pleading is filed by registered mai, then the date of mailingshall be
considere as the date of filing it does not matter when the court
N.B. service of a petition upon a party, when that party is actually receives the mailed pleading.
represented by counsel of record, is a patent nullity and is not
binding upon the party wrongfully served.
SECTION 4.
Reason: Parties, generaly, have no formal education/knowledge of
Section 4. Papers required to be filed and served. – Every judgment,
the rules of procedure; thus they may also be unaware of the rights resolution, order, pleading subsequent to the complaint, written motion,
and duties of a litigant relative to the receipt of a decision. notice, appearance, demand, offer of judgment or similar papers shall be
filed with the court, and served upon the parties affected.
SERVICE UPON COUNSEL REPRESENTING SEVERAL PARTIES
PAPERS REQUIRED TO BE FILED AND SERVED
Service shall be made upon said counsel but he shall be entitled only
to one copy of any paper served upon him by the opposite side. a. judgments;
b. resolutions;
c. orders;
SECTION 3. d. pleadings subsequent to the complaint;
Section 3. Manner of filing. – The filing of pleadings, appearances, motions, e. written motions;
notices, orders, judgments and all other papers shall be made by presenting f. notices;
the original copies thereof, plainly indicated as such, personally to the clerk g. appearances;
of court or by sending them by registered mail. In the first case, the clerk of
court shall endorse on the pleading the date and hour of filing. In the second
h. demands;
case, the date of the mailing of motions, pleadings, or any other papers or i. offers of judgment; or
payments or deposits, as shown by the post office stamp on the envelope or j. similar papers.
the registry receipt, shall be considered as the date of their filing, payment,
or deposit in court. The envelope shall be attached to the record of the case.

MANNER OF FILING SECTION 5.


Section 5. Modes of service. – Service of pleadings motions, notices, orders,
2 modes of filing: judgments and other papers shall be made either personally or by mail.

a. by presenting the orig copy personally to the clerk of court; MODES OF SERVICE
or
b. by registered mail. a. personally (Sec.6, Rule 13); or
b. mail (Sec. 7, Rule 13).
First mode (personally):
However, if the 2 modes cannot be made, service shall be made
Clerk of court shall indicate/endorse on the pleading filed, the date done by “substitute service.”
and hour of filing.

Second mode (registered mail): SECTION 6.


Date of filing is determinable from 2 sources: Section 6. Personal service. – Service of the papers may be made by
delivering personally a copy to the party or his counsel, or by leaving it in his
office with his clerk or with a person having charge thereof. If no person is
a. post office stamp on the envelope; or
found in his office, or his office is not known, or he has no office, then by
b. regeistry receipt. leaving the copy, between the hours of eight in the morning and six in the
evening, at the party's or counsel's residence, if known, with a person of
Envelope must be attached to the record of the case. sufficient age and discretion then residing therein.

Court previously ruled that if the date stamped on one is earlier than HOW PERSONAL SERVICE IS MADE
the other, the former may be accepted as the date of filing. This
presupposes, however, that the envelope/registry receipt and dates a. By delivering personally to the party/counsel a copy thereof;
appearing thereon are duly authenticated before the tribunal where or
they are presented. b. By leaving it in his office w/ his clerk or w/ a person having
charge thereof.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

NO PERSON IN THE OFFICE/OFFICE IS UNKNOWN OR HE HAS NOT SECTION 8.


OFFICE Section 8. Substituted service. – If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be made under the two
By leaving the copy at the party’s/counsel’s residence (if known). preceding sections, the office and place of residence of the party or his
counsel being unknown, service may be made by delivering the copy to the
Provided: clerk of court, with proof of failure of both personal service and service by
mail. The service is complete at the time of such delivery.
a. It is between the hours of 8AM and 6PM; and
b. w/ a person of sufficient age and discretion residing therein. SUBSTITUTED SERVICE

NOTICE TO COUNSEL IS NOTICE TO PARTY; Exception Mode is availed if only when there is failure to effect service
personally/by mail. This failure occurs when the office and residence
GR: when a party is represented by counsel of record, service of of the party/counsel are unknown.
orders and notices must be made upon said attorney and notice to
the client and to any other lawyer, not the counsel of record, is not HOW IT IS BEING MADE
notice In law.
Service may be made by:
Exc: when service upon a party himself has been ordered by the
a. Delivering the copy to the clerk of court, w/ proof of
court.
failure of both personal service and service by mail. The
service is complete at the time of such delivery.
b. Duty of the counsel of the change of his address: service
SECTION 7. w/ the last known address.
Section 7. Service by mail. – Service by registered mail shall be made by
depositing the copy in the post office in a sealed envelope, plainly addressed Substituted service is complete at the time of delivery of the copy to
to the party or his counsel at his office, if known, otherwise at his residence, the clerk of court.
if known, with postage fully prepaid, and with instructions to the postmaster
to return the mail to the sender after ten (10) days if undelivered. If no
EFFECT OF FAILURE TO FILE NOTICE OF CHANGE OF ADDRESS
registry service is available in the locality of either the senders or the
addressee, service may be done by ordinary mail.
In the absence of proper and adequate notice to the court of a
SERVICE BY MAIL change of address, the service of the order or reso of a court upon
the parties must be made at the last address of their counsel on
Preferred service by mail is by registered mail. Service by ordinary record.
mail may be done only if no registry service available in the locality
of either the sender or the addressee. DUTY OF THE PARTY IN CASE OF CHANGE OF ADDRESS

Service by registered mail is proved by: It is the duty of the party and his counsel to device a system for the
receipt of mail intended for them, just as it is the duty of the counsel
a. The registry receipt issued by the mailing office; and to inform the court officially of a change in his address.
b. An affidavit of the person mailing of facts showing
compliance w/ the rule.
SECTION 9.
Both the receipt and affidavit need to be appended to the paper
Section 9. Service of judgments, final orders, or resolutions. – Judgments,
being served. final orders or resolutions shall be served either personally or by registered
mail. When a party summoned by publication has failed to appear in the
WHEN SERVICE OF NOTICE IS AN ISSUE action, judgments, final orders or resolutions against him shall be served
upon him also by publication at the expense of the prevailing party.
The person alleging that the notice was served must prove the fact
of service. The burden of proving notice rests upon the party SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS
asserting its existence.
The same shall be served either: (a) personally; or (b) by registered
WHEN NO REGISTRY SERVICE IS AVAILABLE mail.

If no registry is available in the locality of either the sender or the When a party summoned by publication has failed to appear in the
addressee, service may be done by ordinary mail. action, judgments, final orders or reso against him shall be served
upon him also by publication.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

SECTION 10. SECTION 11.


Section 10. Completeness of service. – Personal service is complete upon Section 11. Priorities in modes of service and filing. – Whenever practicable,
actual delivery. Service by ordinary mail is complete upon the expiration of the service and filing of pleadings and other papers shall be done personally.
ten (10) days after mailing, unless the court otherwise provides. Service by Except with respect to papers emanating from the court, a resort to other
registered mail is complete upon actual receipt by the addressee, or after modes must be accompanied by a written explanation why the service or
five (5) days from the date he received the first notice of the postmaster, filing was not done personally. A violation of this Rule may be cause to
whichever date is earlier. consider the paper as not filed.

WHEN PERSONAL SERVICE IS DEEMED COMPLETE PERSONAL SERVICE; PRIORITY IN MODES OF SERVICE AND FILING

Upon actual delivery, pesonal service is deemed complete. Service and filing of pleading and other papers shall be done
personally, whenever practicable. This is the preferred mode of
WHEN SERVICE BY MAIL IS DEEMED COMPLETE service.
Ordinary mail – upon the expiration of 10 days after mailing, unless GR: if another mode of service other than personal service, it must
court ow provides. be accompanied by a written explanation why the service/filing was
not done personally.
Registered mail – upon actual receipt by the addressee, or after 5
days from the date he received the first notice of the postmaster, EXC: when service of papers emanates from the court.
w/c is earlier.
A violation of this explanation requirement may be caused for the
COMPLETENESS OF PERSONAL SERVICE paper to be considered as not having been filed.
It is a rule generally accepted that when the service is to be made by RELAXATION OF THE APPLICATION OF THE PROVISION – MERELY
registered mail, service is deemed complete and effective upon PERMISSIVE
actual receipt by the addressee as shown by the registry return
card. The use of “may” in the above-quoted section signifies
permissiveness and gives the court discretion whether or not to
COMPLETENESS OF SERVICE BY REGISTERED MAIL consider the pleading as not filed.
The rule on service by registered mail contemplates 2 situations: While it is true that procedural rules are necessary to secure an
orderly and speedy administration of justice, however, rigid
a. Actual service – completenes is determined upon receipt
application of the provision may be relaxed in the interest of
by the addressee of the registered mail; and
substantial justice.
b. Constructive service – determined upon expiration of 5
days from the date the addressee received the first notice
of the postmaster.
SECTION 12.
RULE ON CONSTRUCTIVE SERVICE Section 12. Proof of filing. – The filing of a pleading or paper shall be proved
by its existence in the record of the case. If it is not in the record, but is
There must be conclusive proof that a first notice was duly sent by claimed to have been filed personally, the filing shall be proved by the
the postmaster to the addressee. Not only is it required that notice written or stamped acknowledgment of its filing by the clerk of court on a
copy of the same; if filed by registered mail, by the registry receipt and by
of the registered mail be issuedbut that it should also be delivered
the affidavit of the person who did the mailing, containing a full statement of
to and received by the addressee. the date and place of depositing the mail in the post office in a sealed
envelope addressed to the court, with postage fully prepaid, and with
Notably, the presumption that official duty has been regulary instructions to the postmaster to return the mail to the sender after ten (10)
performed is not applicable in this situation. days if not delivered.

The best evidence to prove that notice was sent would be a HOW TO PROVE FILING
certification from the postmaster who should certify not only that
Shall be proved by its existence in the record of the case.
the notice was issued/sent but also as to how, when, and to whom
the delivery and receipt was made. If not in the record, but is claimed to have been filed personally, the
filing shall be proved by written/stamped acknowledgment of its
filing by the clerk of court on a copy of the same.

If filed by registered mail, proof of filing is by the registry receipt and


the affidavit of the person who did the mailing, containing full
statement of the date and place of depositing the mail in the post
office in a sealed envelope addressed to the court, w/ postage fully

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

prepaid, and w/ instructions to the postmaster to return the mail to registry of deeds of the province in which the property is situated notice of
the pendency of the action. Said notice shall contain the names of the parties
sender after 10 days if not delivered. and the object of the action or defense, and a description of the property in
that province affected thereby. Only from the time of filing such notice for
WEIGHT AS TO COMPLETENESS OF SERVICE record shall a purchaser, or encumbrancer of the property affected thereby,
be deemed to have constructive notice of the pendency of the action, and
Between the registry return card and written note, the former only of its pendency against the parties designated by their real names.
commands more weight.
The notice of lis pendens hereinabove mentioned may be cancelled only
upon order of the court, after proper showing that the notice is for the
Not only is the former considered as the official record of the court,
purpose of molesting the adverse party, or that it is not necessary to protect
but also as such, it is presumed to be accurate unless proven ow, the rights of the rights of the party who caused it to be recorded.
unlike a written note/record of the party, w/c is often self-serving
and easily fabricated. WHAT IS LIS PENDENS

Lis pendens w/c literally means pending suit refers to the juris,
power or control w/c a court acquires over the property involved in
SECTION 13. a suit, pending the continuance of the action, and until final
Section 13. Proof of Service. – Proof of personal service shall consist of a judgment.
written admission of the party served, or the official return of the server, or
the affidavit of the party serving, containing a full statement of the date, Founded upon public policy and necessity, it is intended to keep the
place and manner of service. If the service is by ordinary mail, proof thereof
shall consist of an affidavit of the person mailing of facts showing compliance properties in litigation w/in the power of the court until the
with section 7 of this Rule. If service is made by registered mail, proof shall litigation is terminated, and to prevent the defeat of the
be made by such affidavit and the registry receipt issued by the mailing judgment/decree by subsequent alienation.
office. The registry return card shall be filed immediately upon its receipt by
the sender, or in lieu thereof the unclaimed letter together with the certified PURPOSE OF NOTICE OF LIS PENDENS
or sworn copy of the notice given by the postmaster to the addressee.
It is an announcement to the whole world that a particular real
HOW TO PROVE SERVICE
property is in litigation. Intended to protect the real rights of the
Proof of personal service shall consist of the written admission of party who caused the registration thereof. It serves as a warning to
the party served. prospective encumbrances or purchasers that they should keep their
hands off the property.
It may also be proven by the official receipt of the server, or the
affidavit of the party serving, containing full info of the date, place, The party who had the notice annotated and who won the litigation
and manner of service. over the property has the better right as against the one who
bought it w/ such annotation.
Ordinary mail – proof shall consist of the affidavit of the person
mailing of the facts showing compliance thereof. WHEN IS NOTICE OF LIS PENDENS AVAILABLE

Registered mail - proof shall consist of such affidavit of the person Where there is an action/proceeding in court w/c affects the
mailing and the registry receipt issued by the mailing office. title/possession of real property. It is essential that the property be
directly affected. The plaintiff and the defendant, when affirmative
Absent any proof of service of the decision, period of 15 days w/in relief is claimed in his answer may:
w/c party may file its motion for new trial does not begin to run.
a. Record in the office of the RD of the province in w/c the
If it admits, however, that it received the copy of the decision on a property is located a notice of the pendency of the action.
certain date despite absence of proof of service, that date would be b. Notice shall contain the names of the parties and object of
the reckoning date of the 15-day period. the action/defense, and a description of the property in
FAILURE TO ATTACH THE AFFIDAVIT OF SERVICE that province affected thereby.

The failure to attachment the required affidavit of service is not fatal WHAT IS THE EFFECT OF ANNOTATION OF THE NOTICE
and the registry receipt attached to the petition clearly shows Only from the time of filing such notice for record shall a pruchaser,
service to other party. or encumbrancer of the property affected thereby, be deemed to
have constructive notice of the pendency of the action, and only of
its pendency against the parties designated be their real names.
SECTION 14.
Section 14. Notice of lis pendens. – In an action affecting the title or the right DUAL EFFECT OF LIS PENDENS
of possession of real property, the plaintiff and the defendant, when
affirmative relief is claimed in his answer, may record in the office of the a. To keep the property subj matter of the litigation w/in the
power of the court until entry of final judgment; and

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

b. To bind purchaser, bona fide or ow, of the property DISTINCTIONS BETWEEN LIS PENDENS FROM LITIS PENDENTIA
subject of the litigation to the judgment that the court will
subsequently promulgate. Lis Pendens Litis Pendentia
Available as a remedy in case a It refers to the situation where 2
ACTIONS WHERE LIS PENDENS IS PROPER real property is the subject of an actions are pending between the
action affecting the title/the same parties for the same coa,
a. Action to recvoer possession of real estate;
right of possession of peal so that one of them becomes
b. Action to quiet title thereto;
property. unnecessary and vexatious.
c. Action to remove clouds thereon;
Purpose are as follows: 1) to Purpose is for the dismissal of
d. Action for partition; and
keep the property subj matter of the action in order to avoid
e. Any other proceedings directly affecting the title to the
the lititgation w/in the power of multiplicity of suits.
land/the use or occupation thereof or the buildings
the court until entry of the final
thereon.
judgment to prevent the defeat
WHEN LIS PENDENS BE RECORDED of final judgment by successive
alienation; and 2) to bind the
At the instance of the interested party at any time during the purchaser of the property subj
pendency of the action and not necessarily at the time of the filing to litigation to the judgment.
of the complaint/the answer of the party concerned. Made through notice to be filed Availed of by way of a MTD and
w/ the RD where the property is filed w/ the court where the
CANCELLATION OF LIS PENDENS
located. case is pending.
GR: Cannot be ordered to be cancelled on an ex parte motion. There In case of denial by the RD, If MTD is denied, remedy is to
should be notice to the party who cause such notice to be recorded remedy is to appeal w/in 5 days file the answer w/in the
so that the notice of lis pendens is necessary to protect his rights and to the LRA en consulta. remaining perion but in no case
is not for the purpose of mollesting the adverse party. less than 5 days.
Notice of lis pendens can be MTD should be filed before the
EXC: court can order the cancellation of the notice especially where
filed after the filing of the action filing of a responsive pleading.
such circumstances are imputable to the party who caused the
in court, but before finality of
annotiation of said notice, as where the litigation was unduly
judgment.
prolonged to the prejudice of the defendant bec of several
continuances procured by the plaintiff.

GROUNDS FOR CANCELLATION OF NOTICE OF LIS PENDENS


RULE 14
Only upon order of the court, after proper showing that the notice is
for: SUMMONS

a. Purpose of molesting the adverse party; NATURE OF SUMMONS


b. That it is not necessary to protect the rights of the party
Summons is the writ by w/c the defendant is notified of the action
who caused it to be recorded;
brought against him/her. Its purpose is two-fold:
c. When the case had already been terminated and the court
ordered for its cancellation. a. Acquire juris over the person of the defendant; and
b. To notify the defendant that an action has been
GROUNDS FOR CANCELLATION OF LIS PENDENS
commenced so that he may be given the opportunity to be
a. Upon order of the court, after proper showing that the heard on the claim against him.
notice is for purpose of molesting the adverse party; or
Moreover, the most basic purpose of summos is to satisfy the
b. That it is necessary to protect the rights of the party who
requirements of procedural due process.
caused it to be recorded.
An important part of the notice, is a direction that the defendant
NOTICE OF LIS PENDENS v. LIEN/ENCUMBRANCE
should answer the complaint w/in the period fixed by the Rules and
Notice of lis pendens – only a warning that a claim/possibel charge that, unless he so answers, plaintiff will take judgment by default
on the property is pending determinationby the court. and may be granted the relief applied for.

Lien/encumbrance – an existing burden/charge on the property.

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KINDS OF SUMMONS ACTION IN PERSONAM

Original summons – writ issued by the clerk of court upon receipt of One w/c seeks to enforce personal rights and obligations against a
the complaint and the payment of the requisite docket and other defendant and is based on the juris of the person.
lawful fees by w/c the defendant is notified of the action brought
EXAMPLES OF ACTION IN PERSONAM
against him and requiring him to file his responsive pleading w/in
the period prescribed by the rules. a. Action for injunction;
b. Action for recovery of possession and damages;
Alias summons – writ issued by the clerk of court when the orig
c. Action for reconveyance of real property;
summons has been lost or not duly served w/o fault on the part of
d. Action for ejectment;
the plaintiff.
e. Action for subrogation;
DISTINCTIONS BETWEEN SUMMONS AND SUBPOENA f. Action for damages;
g. Action for the delivery of personal property or replevin;
Summons Subpoena h. Action for collection of sum of money;
A writ w/c the defendant is Issued w/c requies a person to i. Action for interpleader over personal property;
notified of the action brought appear and testify befre the j. Action for rescission of contract;
against him. court or in an investigation or to k. Action for specific performance for the delivery of personal
bring docs/books to the court. property;
Kinds – original and alias Kinds – duces ticum and ad l. Action for revival of judgment involving personal property;
summons testificandum. m. Small claims cases.
Purpose – acquire juris over the Purpose – require the person to
person of the defendant or the appear and testify before the IN AN ACTION IN PERSONAM, PERSONAL SERVICE IS PREFERRED
res, and in compliacne w/ due court or in an investigation or to
That is by handing a copy of the summons to the defendant in
process in an action in rem or brign docs/books to the court.
person, and if defendant, for excusable reasons, cannot be served
action quasi- in rem.
w/ the summons w/in a reasonable period, then substituted service
Remedy – if service is defective, Remedy – motion to quash.
can be resorted to.
MTD for lack of juris over the
person of the defending party or DEFENDANT IS IN THE PH
ask for an alias summons.
Issued by the clerk of court. Issued by the judge during trial. Service of summons shall be made through personal service, that is,
summons shall be served by handing to the defendant in person a
copy thereof, or if he refuses to receive and sign it, by tendering it to
EFFECT OF KNOWLEDGE OF THE FILING OF THE ACTION him.

Does not dispense w/ the need for summons. Summons must still be NON-RESIDENT DEFENDANT
issued and served.
Since the action involved is in personam and the defendant does not
UNIFORMITY OF THE RULES ON SUMMONS reside and is not found in the PH, PH courts cannot try any case
against it bec of the impossibility of acquiring juris over its person
Rules on summons apply w/ equal force in actions before the RTC, unless it voluntary appear in court.
MTC, MTCC, MCTC, and MeTC.
PURPOSE OF SUMMONS IN ACTIONS IN PERSONAM
GR: procedure in the MTCs shall be the same as in the RTCs.
The purpose of summons in action in personam is not only to comply
EXC: (a) where the particular provision expressly/impliedly applies
w/ due process but also to acquire juris over the person of the
only to either of said courts; or (b) in civil cases governed by the Rule defendant.
on Summary Procedure.
To have juris over the person of the defendant, where he does not
appear voluntarily in the action, a valid service of summons upon
KINDS OF ACTION IN RELATION TO SERVICE OF SUMMONS him is required.

a. Action in personam; N.B. by filing of the complaint and payment of the required filing
b. Action in rem; and and docket fees, the court acquires only juris over the person of the
c. Action quasi in rem. plaintiff, not over the defendant.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

The court would be devoid of authority to hold a person liable for a. By the seizure of the property under legal process, whereby
the relief prayed for by the plaintiff w/o first vesting upon said cour it is brought into the actual custody of the law; or
juris over the person of the defendant. b. As a result of the institution of legal proceedings, in w/c the
power of the court is recognized and made effective.
ACTION IN REM
Thus, it has been clearly declared that, in an action in rem or quasi in
“Against the thing.”
rem, juris over the person of the defendant is not a prerequisite to
One w/c is not drected only against particular person, but against confer juris on the court provided it acquires juris over the res.
the thing itself and the object fo w/c is to bar indifferently all who
Summons, however, must still be served upon the defendant in
might be minded to make any objection against the right sought to
order to satisfy due process requirements.
be enforced, hence, judgment therein is binding theoretically upon
the whole world. Illustration:

EXAMPLES OF ACTION IN REM Attachment is a proceeding in rem or quasi in rem, this classification
becomes significant only when the defendant does not appear in the
a. Petition for cancellation of adverse claim;
action as when he is a non-resident who is at the same time outside
b. Petition for land registration; of the PH.
c. Petition for registration;
d. Land registration; Where the defendant does not volunary appear in the action, the
e. Cadastral cases. need for acquiring juris over the property becomes imperative so
the court may have the authority to order that the property be
MODE OF SERVICE
made to answer for the liability of the non-appearing defendant.
An in rem proceedng is validated essentially through publication.
When the defendant appears in the action, even an in rem and a
Publication is notice to the whole world that the proceeding has for quasi in rem action are to be treated as actions in personam.
its object to bar indefinitely all who might be minded to make an
objection of any sort to the right sought to be established. Through
publicaiton, all interested parties are deemed notified of the
SECTION 1.
petition.
Section 1. Clerk to issue summons. – Upon the filing of the complaint and the
ACTION QUASI IN REM payment of the requisite legal fees, the clerk of court shall forthwith issue
the corresponding summons to the defendants.
One w/c is directed against particular person but the purpose of w/c
WHO ISSUES THE SUMMONS
is to bar and bind not only said persons but any other person who
claims any interest in the property or right subject of the suit. The clerk of court issues the summons who shall sign the same
under seal.
EXAMPLES OF ACTION QUASI IN REM
WHEN SUMMONS IS ISSUED
a. Action for annulment of certificate of title;
b. Petition for forfeiture proceedings is an action in rem/quasi Shall be issued upon the filing of the complaint and payment of the
in rem under R.A. No. 1379; requisite legal fees.
c. Action for foreclosure of real estate mortgage;
d. Acton for partition.
SECTION 2.
MODES OF SERVICE Section 2. Contents. – The summons shall be directed to the defendant,
signed by the clerk of court under seal and contain (a) the name of the court
a. Personal service to the person of the defendant; and the names of the parties to the action; (b) a direction that the defendant
b. Substituted service; answer within the time fixed by these Rules; (c) a notice that unless the
c. Service by publication. defendant so answers plaintiff will take judgment by default and may be
granted the relief applied for.
PURPOSE OF SUMMONS IN ACTION IN REM AND QUASI IN REM A copy of the complaint and order for appointment of guardian ad litem if
any, shall be attached to the original and each copy of the summons.
In these actions, it is the acquisition by the court of juris over the res
w/c principally matters. TO WHOM SUMMONS IS DIRECTED

Juris over the res is acquired either: It is directed to the defendant, not the plaintiff.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

CONTENTS OF SUMMONS
a. if summons is returned w/o being served on any or all the
Shall contain the ff matters: defendants; or
b. if the summons has been lost.
a. Name of the court and the parties to the action;
b. Direction that the defendant answer w/in the time fixed by ISSUANCE OF ALIAS SUMMONS
the Rules;
Proof of service is required to be given to the plaintiff’s counsel in
c. A notice that, unless the defendant so answers, the plaintiff
order to enable him to move for a default order should the
will take judgment by default and may be granted the relief
defendant fail to answer on time or, in case of non-service, so that
prayed for; and
alias summons may be sought. In either case, under this amended
d. A copy of the complaint and order for appointment of
section, the server must serve a copy of the return on plaintiff’s
guardian ad litem, if any, shall be attached to the orig and
counsel within 5 days from completion or failure of the service,
each copy of the summons.
which requirement was absent in the former Rules.

SECTION 3.
Section 3. By whom served. – The summons may be served by the sheriff, his SECTION 6.
deputy, or other proper court officer, or for justifiable reasons by any Section 6. Service in person on defendant. – Whenever practicable, the
suitable person authorized by the court issuing the summons. summons shall be served by handling a copy thereof to the defendant in
person, or, if he refuses to receive and sign for it, by tendering it to him.
WHO SERVES SUMMONS
SERVICE IN PERSON ON DEFENDANT
May be served by the sheriff, his deputy, or other proper court
officer, or for justifiable reasons by any suitable person recognized The Rule refers to the mode of service as “service in person on
by the court issuing the summons. defendant” not personal service.

Service in person on defendant Personal service


SECTION 4. Mode of service of summons. Mode of service of pleadings,
Section 4. Return. – When the service has been completed, the server shall, motions, notices, orders,
within five (5) days therefrom, serve a copy of the return, personally or by judgments, and other papers
registered mail, to the plaintiff's counsel, and shall return the summons to served.
the clerk, who issued it, accompanied by proof of service.
Rule 14 Rule 13
RETURN

When the service has been completed, the server shall, w/in 5 days FREE CHOICE ON THE MODE OF SERVICE
therefrom:
Plaintiff does not have a free choice on the mode of service of
a. serve a copy of return, personally or by registered mail, to summons. Service in person is the perferred mode of service of
the plaintiff’s counsel; and summons.
b. shall return the summons to the clerk who issued it,
accompanied by proof of service. Thus, Sec. 6 and 7 of Rule 14 cannot be construed to apply
simultaneously and do not provide for alternative modes of service
of summons w/c can be resorted to on the mere basis of
convenience to the parties.
SECTION 5.
Section 5. Issuance of alias summons. – If a summons is returned without It is only when summons cannot be served personally w/in a
being served on any or all of the defendants, the server shall also serve a
reasonable period of time that substituted service may be resorted
copy of the return on the plaintiff's counsel, stating the reasons for the
failure of service, within five (5) days therefrom. In such a case, or if the to.
summons has been lost, the clerk, on demand of the plaintiff, may issue an
alias summons. HOW IT IS EFFECTED

WHEN WILL THE COURT ISSUE AN ALIAS SUMMONS It is effected by handing a copy of summons to the defendant. If he
refuses to receive and sign for it, the remedy of the server is to
An alias summons may be issued after the server has served copy of tender the summons to the defendant.
the return to the plaintiff’s counsel stating the reason of the failure
of service, on the ff instances: If the defendant refuses the service, the sheriff is not supposed to
resort to substituted service immediately. He is required by the
Rules to “tender” the summons to the defendant.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

WHEN TO RESORT TO SUBSTITUTE SERVICE The return must contain a narration of the circumstances showing
efforts to personally serve summons and the impossibility of
Only if service in person cannot be made promptly can the process
personal service of summons.
server resort to substituted service.
REASONABLE TIME, defined
Failure to comply faithfully, strictly, and fully w/ all the foregoing
requirements of substituted service renders the service of summons Manotoc v. CA
ineffective.
Reasonable time is defined as so much time as is necessary under the
circumstances for a reasonably prudent and diligent man to do, conveniently,
what the contract/duty requires that should be done.
SECTION 7.
Section 7. Substituted service. – If, for justifiable causes, the defendant A mere general claim in the sheriff’s return that the server has made
cannot be served within a reasonable time as provided in the preceding several attempts to serve the summons, w/o making reference to
section, service may be effected (a) by leaving copies of the summons at the the details of facts and circumstances surrounding such attempts,
defendant's residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies at defendant's office or regular
does not comply w/ the rules on substituted service.
place of business with some competent person in charge thereof.
HOW SUBSTITUTED SERVICE IS MADE
SUBSTITUTED SERVICE OF SUMMONS
The rule provides the server w/ options, by leaving copies at:
It is not the preferred mode of service. Resort to such service is
a. defendant’s residence;
permitted only when the summons cannot be promptly served on
b. defendant’s office/regular place of business.
the defendant in person and after stringent formal and substantive
requirements have been complied with. Defendant’s residence:

Substituted service is a method extraordinary in character, hence, a. suitable age; and


may be used only as prescribed and in the circumstances authorized b. discretion
by statute.
Defendant’s office/regular place of business – w/ competent
REQUIREMENTS FOR SUBSTITUTED SERVICE TO BE JUSTIFIED person in charge. Must be one managing the office/business w/
sufficient knowledge to understand the obligation of the defendant
a. personal service of summons w/in reasonabl time was
in the summons, its importance, and the prejudicial effects arising
impossible;
from inaction on the summons.
b. efforts were exerted to locate the party; and
c. summons was served upon a person of sufficient age and SRICT COMPLIANCE OF ALL THE REQUIREMENTS
discretion residing at the party’s residence upon a competent
person in charge of the party’s office/place of business. The failure to comply faithfully, strictly, and fully w/ all the
requirements of subsituted service renders the service of summons
REQUISITES FOR A VALID SUBSTITUTED SERVICE OF SUMMONS ineffective.

a. impossibility of prompt service; EFFECT IF DEFENDANT DOES NOT ACTUALLY RECEIVE THE
b. specific details in the returns; SUMMONS
c. a person of suitable age and discretion; and
d. a competent person in charge. Where the subsituted service has been validly served, its validity is
not affected by the defendant’s failure to actually receive the
SHERIFF’S DUTY IN CASE PERSONAL SERVICE IS NOT AVAILABLE summons from the person w/ whom the summons had been left..

If the defendant refuses the service, the server should not resort to CERTIFICATE OF THE PROCESS SERVER
substituted service. He must tender it to him. Tendering is a part of
service in person. If the defendant cannot be served in person w/in a It is well to note that the certificate of service of the process server
reasonable time, only then may substituted service be availed of. is prima facie evidence of the facts as set out therein. This is fortified
by the presumption of the regularity of performance of official duty.
SHERIFF’S RETURN
PRESUMPTION OF REGULARITY IN THE SERVICE OF SUMMONS
Sheriff’s return must show the details of the efforts exerted to
personally serve summons upon the defendant before substituted To overcome presumption of regularity of official funcion in favor of
service is availed of. sheriff’s return, the evidence against it must be clear and convincing.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

SECTION 8.
SECTION 11.
Section 8. Service upon entity without juridical personality. – When persons
Section 11. Service upon domestic private juridical entity. – When the
associated in an entity without juridical personality are sued under the name
defendant is a corporation, partnership or association organized under the
by which they are generally or commonly known, service may be effected
laws of the Philippines with a juridical personality, service may be made on
upon all the defendants by serving upon any one of them, or upon the
the president, managing partner, general manager, corporate secretary,
person in charge of the office or place of business maintained in such name.
treasurer, or in-house counsel.
But such service shall not bind individually any person whose connection
with the entity has, upon due notice, been severed before the action was
brought.
SERVICE UPON A DOMESTIC PRIVATE JURIDICAL ENTITY

SERVICE UPON AN ENTITY W/O A JURIDICAL PERSONALITY Service may be made upon the ff (“restricted, limited, & exclusive”):

When 2/more persons not organize as an entity w/ juridical a. president;


personality enter into a transaction, they may be sued under the b. managing partner;
name by w/c they are commonly known. c. general manager;
d. corporate secretary;
Service may be effected upon all defendants by serving summons e. treasurer; or
upon: f. in-house counsel.

a. any of them; or Service is limited to the persons enumerated above and summons
b. the person in charge of the office/place of business. cannot be served upon any other person. Hence, service on an
officer other than those enumerated is invalid, defective, and not
Service shall not, however bind individually any person whose
binding to the entity – expressio unios est exclusio alterius.
connection w/ the entity, upon due notice, had been severed before
the action was brought. REMEDY OF THE PLAINTIFF IN CASE SERVICE OF SUMMONS
CANNOT BE TO THE OFFICERS OF THE CORP MADE IN AN ACTION
IN PERSONAM
SECTION 9.
Amend the complaint and ask for the issuance of writ of preliminary
Section 9. Service upon prisoners. – When the defendant is a prisoner
confined in a jail or institution, service shall be effected upon him by the attachment if there are grounds available, thereby converting the
officer having the management of such jail or institution who is deemed action into an action quasi in rem where service of summons by
deputized as a special sheriff for said purpose. publication is allowed in order to acquire juris over the res and the
acquisition over the juris of the defendant is merely for observance
SERVICE UPON A PRISONER
of due process.
Service shall be effected upon the prisoner by the officer having the
management of such jail/institution. For this purpose, the jail
manager is deemed deputized as a special sheriff. SECTION 12.
Section 12. Service upon foreign private juridical entities. – When the
defendant is a foreign private juridical entity which has transacted business
in the Philippines, service may be made on its resident agent designated in
SECTION 10. accordance with law for that purpose, or, if there be no such agent, on the
Section 10. Service upon minors and incompetents. – When the defendant is government official designated by law to that effect, or on any of its officers
a minor, insane or otherwise an incompetent, service shall be made upon or agents within the Philippines.
him personally and on his legal guardian if he has one, or if none his guardian
ad litem whose appointment shall be applied for by the plaintiff. In the case
of a minor, service may also be made on his father or mother. SERVICE UPON A FOREIGN PRIVATE JURIDICAL ENTITY

SERVICE UPON A MINOR AND AN INOMPETENT Service may be made on:

Service shall made: a. its resident agent designated in accordance w/ law for
a. upon him personally; and that pupose; or
b. his guardian ad litem.
if there be no such agent:
Service upon legal guardian, father or mother is not sufficient
compliance. Service should be made also upon the defendant. b. government official designated by law to that effect; or
c. on any of the officers/agent of said foreign entity w/in the
PH.

It has been held that when a foreign corporation has designated a


person to receive summons on its behalf pursuant to the Corp Code,

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

that designation is exclusive and service on any other person is SECTION 14.
inefficacious. Section 14. Service upon defendant whose identity or whereabouts are
unknown. – In any action where the defendant is designated as an unknown
A foreign corp w/ a license to do business in the PH may sue and be owner, or the like, or whenever his whereabouts are unknown and cannot be
sued in the country. ascertained by diligent inquiry, service may, by leave of court, be effected
upon him by publication in a newspaper of general circulation and in such
places and for such time as the court may order.
GR: a foreign corp doing business in the PH w/o a license, cannot
sue in the PH but can be sued.
SECTION 16.
EXC: (a) when it is suing under an isolated trans; or (b) to protect its Section 16. Residents temporarily out of the Philippines. – When any action is
trade name/goodwill w/c has been infirnged; or (c) under the commenced against a defendant who ordinarily resides within the
Philippines, but who is temporarily out of it, service may, by leave of court,
doctrine of estoppel – where a party is estopped from challenging be also effected out of the Philippines, as under the preceding section.
the personality of a corp after having acknowldged the same by
entering into a contract w/ it. SUMMONS BY PUBLICATION

Reason for the doctrine of estoppel: it prevents a person contractin GR: available only in actions in rem or quasi in rem. It is not available
w/ a foreign corp from later taking advantage of its noncompliance. as a means of acquiring juris over the person of the defendant in an
action in personam.
FOREIGN PRIVATE JURIDICAL ENTITIES NOT REGISTERED IN THE
PH/HAVE NO RESIDENT AGENTS EXC: summons by publication, however, against a resident in an
action in personam is permissible under the conditions set forth in
Service may be effected out of the PH, with leave of court, through the ff:
any of the ff means:
a. Sec. 14, Rule 14 – where identity/whereabouts of the
a. personal service – thru the appropriate court in the defendant are unknown;
country w/ the assistance of the DFA; b. Sec. 16, Rule 14 – when defendant is a resident
b. publication – newspaper of gen circulation in the country temporarily out of the PH.
where defendant may be found and serving a copy of
summons and the court order by registered mail at the last SERVICE UPON A DEFENDANT WHOSE IDENTITY OR WHEREABOUTS
known address of the defendant; ARE UNKNOWN
c. facsimile – any recognized electronic means that could
Where the defendant is designated as an unknown owner, or the
generate proof of service; or
like, or whenever his whereabouts are unknown and cannot be
d. such other means as the court may in its discretion
ascertained despite a diligent inquiry, service may, by leave of court,
directs.
be effected upon him by publication in a newspaper of gen
circulation and in such places and for such time as the court may
SECTION 13. order.
Section 13. Service upon public corporations. – When the defendant is the
The rule authorizes summons by publication in any action and the
Republic of the Philippines, service may be effected on the Solicitor General;
in case of a province, city or municipality, or like public corporations, service rule does not distinguish whether the action is in personam, in rem
may be effected on its executive head, or on such other officer or officers as or quasi in rem. As long as the identity of the defendant is uknown
the law or the court may direct. or his whereabouts are unknown.
SERVICE UPON THE RP In case the defendant cannot be served w/ sumons in an action in
Service may be effected on the SolGen. personam, the remedy is not to dismiss the case but to hold the case
in arhives.
SERVICE UPON PUBCORP
Archiving of cases is a procedural measure designed to temporarily
Service may be effected on its exec head, or on such other officers defer the hearing of cases in w/c no immediate action is expected,
as the law/the court may direct. but where no grounds exist for their outright dismissal.

SERVICE UPON A RESIDENT TEMPORARILY OUT OF THE PH


SERVICE UPON AN UNINCOPORATED GOV’T AGENCY
When any action is commence against a defendant who ordinarily
Juris instructs that when a suit is directd against an unincorporated
resides w/in the PH, but who is temporarily out of it, service may,
gov’t agency, w/c, bec it is unincorporated, possesses no agency’s
by leave of court, effected out of the PH by publication.
principal

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

Extraterritorial service of summons will not be available. There is no


SECTION 15.
extraterritorial service in an action in personam.
Section 15. Extraterritorial service. – When the defendant does not reside
and is not found in the Philippines, and the action affects the personal status
Where the action is in personam juris over the person of the
of the plaintiff or relates to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or interest, actual or defendant is necessary for the court to validly try and decide a case.
contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the However, when the defendant is a nonresident, personal service in
defendant has been attached within the Philippines, service may, by leave of the state is essential to the acquisition to the juris over him.
court, be effected out of the Philippines by personal service as under section
6; or by publication in a newspaper of general circulation in such places and N.B. Sec. 12, Rule 14, authorizing summons by publication, facsimile,
for such time as the court may order, in which case a copy of the summons
and other electronic means on defendants w/c are foreign private
and order of the court shall be sent by registered mail to the last known
address of the defendant, or in any other manner the court may deem juridical entities.
sufficient. Any order granting such leave shall specify a reasonable time,
which shall not be less than sixty (60) days after notice, within which the An action for injunction is a personal action, as well as an action in
defendant must answer. personam. Hence, personal/substituted service is necessary to
confer juris and not extraterritorial service.
SUMMONS BY PUBLICATION
MODES OF EXTRATERRITORIAL SERVICE
From the tenor on extraterritorial service of summons, summons by
publication applies only when the defendant does not reside and is When the conditions for the applicability of extraterritorial service
not found in the PH. Thus, such rule does not apply to residents of are complied w/, the ff are the alternative modes of extraterritorial
the PH. service, all of w/c require a prior leave of court:

GR: summons by publication against a non-resident in a an action in a. service in person on defendant (Sec. 6, Rule 14);
personam is not a proper mode of service. b. by publication in newspaper of gen circulation in such
places and for such time as the court may order, in w/c
EXC: when the defendant is a foreign private juridical entity not
case a copy of the summons and order of the court shall
registered or w/ no resident agent in the PH.
be sent by registered mai to the last known address; or
EXTRATERRITORIAL SERVICE OF SUMMONS c. in any manner the court may deem sufficient (Sec. 15,
Rule14).
Requisites:
Juris over the person of the defendant if acquired at all in such an
a. Defendant is a nonresident; action, is obtained by the:
b. Not found in the PH; and
c. Action is either in rem or quasi in rem. a. voluntary submisson of the defendant; or
b. personal service of process upon him w/in the territory
GR: it does not apply to a defendant who is a residen of the PH and where the process is valid.
in an action in personam.
If, however, he is a nonresident and, remaining beyond the range of
EXC: provided under Sec. 16, Rule 14 where service may, by leave of the personal process of the cour, refuses to come in voluntarily, the
court, be effected out of the PH. court never acquires juris over the person at all.
ACTIONS INVOLVED IN EXTRATERRITORIAL SERVICE OF SUMMONS APPLICATION OF PRINCIPLES
Specific actions, either in rem/quasi in rem, that will justify the Illustration No. 1:
application of the rule are actions that:
An american tourist, while in the PH, incurred hotel bills of P2M.
a. Affect the personal status of the plaintiff; W/o paying his bills, he surreptitiousy left the country. The hotel
b. w/c relate to, or the subj matter of w/c is property w/in filed an action for sum of money and, w/ leave of court, effected
the PH, in w/c the defendant claims a lien or int, actual or summons by publication. The defendant made no appearance in any
contingent; form and judgment by default was rendered against him. Is he
c. w/c the relief demanded consists, wholly or in part, en bound by the judgment?
excluding the defendant from an int in property located in
the PH ; and No. He is not bound by the judgment bec the same was rendered by
d. defendant’s property has been attached in the PH. the court w/o juris over his person. The summons by publicatio did
not enable the court to acquire juris over him. Here, the action is
WHEN ACTION IS IN PERSONAM one in personam.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

Illustration No. 2: Defendant has not yet appeared in court and no summons has been
validly served, new summons on the amended complaint must be
Mr. D is a balikbayan, a former Filipino, and a naturalized Canadian
served on them.
citizen. He visited the country to attend the funeral of his father
from whom he inherited a parcel of land. He obtained a loan while It is not the change in the coa that gives rise to the need to serve
another summons for the amended complaint, but rather the
in the Ph and executed a REM on his inherited land. He left w/o acquisition of juris over the person of the defendant.
paying the debt. An action to foreclose the mortgage was filed. How
may the court obtain juris over the person of Mr. D? SECTION 17.
Section 17. Leave of court. – Any application to the court under this Rule for
There is no way. He is already out of the country. However, juris leave to effect service in any manner for which leave of court is necessary
over the person of the defendant is not necessary and, hence, shall be made by motion in writing, supported by affidavit of the plaintiff or
some person on his behalf, setting forth the grounds for the application.
irrelevant under the facts bec the action for foreclosure is not an
action in personam. A foreclosure suit is a quasi in rem action. HOW CAN A PARTY ASK FOR LEAVE OF COURT
Summons by publication or other modes of extraterritorial service is
enough to acquire juris over the res. Any application to the court under this Rule for leave to effect
service in any manner for w/c leave of court is necessary shall be
Illustration No. 3: made w/ the ff requirements:
Mexicano, a tourist in the PH, by his employment of force and a. Motion in writing; and
intimidation, contracted a marriage w/ a Filipina. When Mexicano b. Supported by affidavit of the plaintiff or some person on
left for Mexico to visit his parents, Filipina filed an action for his behalf, setting forth the grounds for the application.
annulment of marriage w/ damages of P3M. W/ leave of court,
extraterritorial service by publication in a newspaper of gen
circulation was effected. A copy of the summons and order of the SECTION 18.
court were also sent by registered mail to the last known address of Section 18. Proof of service. – The proof of service of a summons shall be
Mexicano. Mexicano did not appear in the action. The court later made in writing by the server and shall set forth the manner, place, and date
decreed annulment and awarded damages. Was the judgment valid? of service; shall specify any papers which have been served with the process
and the name of the person who received the same; and shall be sworn to
when made by a person other than a sheriff or his deputy.
Yes in so far as the decree of annulment is concerned since the
action is one in rem bec it affects the personal status of the plaintiff. RETURN AND PROOF OF SERVICE
In this kind of action, juris over the res is sufficient. However, the
award of damages is void since it is an action in personam. After the completion of the service, a proof of service is required to
be filed by the server of the summons. The proof of service of
REMEDY OF ATTACHMENT AGAINST NON-RESIDENT DEFENDANT summons shall be:
NOT FOUND IN THE PH
a. in writing and shall set forth the manner, place, and date
If the suit is in personam and the defendant is no longer found in the of service;
PH, summons by publication and other modes under Sec. 15, Rule 14 b. specify any papers w/c have been served w/ the process
would be ineffective. and the name of the person who received the same; and
c. be sworn to when made by a person other than a sheriff or
The remedy is to the file the suit and, at the same time avail of the
his deputy.
provisional remedy of attachment.

Attachment is not always needed where the defendant is not found


in the PH for instance, the defendant is a resident, who is SECTION 19.
temporarily out of the PH since the defendant may be served by Section 19. Proof of service by publication. – If the service has been made by
subsituted service. publication, service may be proved by the affidavit of the printer, his
foreman or principal clerk, or of the editor, business or advertising manager,
SUMMONS WHEN COMPLAINT IS AMENDED to which affidavit a copy of the publication shall be attached and by an
affidavit showing the deposit of a copy of the summons and order for
It does not ipso fact follow that the service of a new summons is publication in the post office, postage prepaid, directed to the defendant by
required whenever a complaint is amended. registered mail to his last known address.

Defendant has already appeared before the trial court by virtue of a


summons on the orig complaint, the amended complaint may be
served upon them w/o need for another summons, even if new coa
are alleged.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

HOW TO PROVE SERVICE OF SUMMONS BY PUBLICATION


SECTION 2.
a. affidavit of the printer, his foreman or principal clerk, or of
Section 2. Motions must be in writing. – All motions shall be in writing except
the editor, business/advertising manager, to w/c affidavit a
those made in open court or in the course of a hearing or trial.
copy of the publication shall be attached; and
b. by an affidavit showing the deposit of a copy of the summons MOTION, defined.
and order for publication in the post office, postage prepaid,
Motion is an application for relief other than by a pleading.
directed to the defendant by registered mail to his last
known address. FORMS OF MOTIONS

GR: all motions shall be in writing.


SECTION 20.
EXC: (a) motions made in open court; and (b) motions made in the
Section 20. Voluntary appearance. – The defendant's voluntary appearance
in the action shall be equivalent to service of summons. The inclusion in a
course of a hearing/trial.
motion to dismiss of other grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a voluntary appearance.

VOLUNTARY APPEARANCE BY THE DEFENDANT SECTION 3.


Section 3. Contents. – A motion shall state the relief sought to be obtained
Juris over the person of the defendant is acquired through coercive and the grounds upon which it is based, and if required by these Rules or
proces, generally by: necessary to prove facts alleged therein, shall be accompanied by supporting
affidavits and other papers.
a. service of summons issued by the court; or
CONTENTS OF MOTION
b. through the defendant’s voluntary
appearance/submission to the court. Motions are to contain the ff:
The effects of service of summons will necessarily flow from the a. statement of the relief sought to be obtained;
voluntary appearance of the defendant, such appearance being b. grounds upon w/c the motion is based; and
equivalent to service of summons. c. supporting affidavits and other papers.
Guy v. Gacott The last requirement applies only when so mandated by the rules or
While proper service of summons is necessary to vest the court w/ juris over when necessary to prove facts stated in the motion.
the person of the defendant, the lack or defect in the service of summons
may be cured by the defendant’s subsequent voluntary submission to the
juris of the court.
SECTION 4.
The defendant is deemed to have made a voluntary appearance when he
filed an answer to the complaint. Section 4. Hearing of motion. – Except for motions which the court may act
upon without prejudicing the rights of the adverse party, every written
motion shall be set for hearing by the applicant.
NPGC v. RCBC
Every written motion required to be heard and the notice of the hearing
By seeking affirmative relief from the court, like moving for the discharge of a thereof shall be served in such a manner as to ensure its receipt by the other
writ of attachment, the defendant is deemed to have voluntarily submitted party at least three (3) days before the date of hearing, unless the court for
to the courts juris. good cause sets the hearing on shorter notice.

Conditional appearance – when a party who makes a special HEARING OF MOTIONS; LITIGATED AND EX PARTE MOTION
appearance to challenge, among others, the court’s juris over his
Litigated Motion
person cannot be considered to have submitted to its authority.
GR: every written motion shall be set for hearing by the applicant.

EXC: for motions w/c the court may act upon w/o prejudicing the
RULE 15 rights of the adverse party.

MOTIONS Thus, every written motion is deemed a litigated motion – one w/


requires the parties to be heard before a ruling on the motion is
SECTION 1. made by the court.
Section 1. Motion defined. – A motion is an application for relief other than
by a pleading. The requirement of notice of hearing is an integral component of
procedural due process that seeks to avoid surprises.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

A motion unaccompanied by a notice of hearing is considered a MOTION DAY


mere scrap of paper that does not toll the running of the periodn to
All litigated motions shall be scheduled for hearing on Fridays
appeal.
afternoons, or if Friday is a non-working holiday, in the afternoon of
Ex Parte Motion the next working day. Does not, however, apply to motions requiring
immediate actions.
One w/c does not require that the parties be heard and w/c the
court may act upon w/o prejudicing the rights of the other party.
This motion is not covered by the hearing requirement. EFFECT OF FAILURE TO SET THE MOTION FOR HEARING, INCLUDE A
NOTICE OF HEARING AND SERVE THE MOTION
Ex parte motions are frequently premissible in procedural matters,
and also in situations and under circumstances of emergency; and A motion w/o a notice of hearing is considered a pro forma and
an exception to a rule requiring notice is sometimes made where does not affect the reglementary period for the appeal/the filing of
notice or the resulting delay might tend to defeat the objective of the requisite pleading, a mere scrap of paper that cannot be acted
the motion. upon by the court. It presents no question that the court can decide.

Any motion that does not contain proof of service and notice to the
SECTION 5. adverse party is not entitled to judicial cognizance.

Section 5. Notice of hearing. – The notice of hearing shall be addressed to all


parties concerned, and shall specify the time and date of the hearing which
must not be later than ten (10) days after the filing of the motion. SECTION 8.

NOTICE OF HEARING Section 8. Omnibus motion. – Subject to the provisions of section 1 of Rule 9,
a motion attacking a pleading, order, judgment, or proceeding shall include
all objections then available, and all objections not so included shall be
GR: the written motion, w/c is required to be heard, and the notice
deemed waived.
of the hearing thereof shall be served in such a manner as to ensure
its receipt by the other party at leas 3 days before the date of THE OMNIBUS MOTION RULE
hearing.
A motion that attacks a pleading, judgment, order or proceeding
EXC: the cour for good cause sets the hearing on shorter notice. shall include all grounds then available, and…

N.B. a mandatory rule. GR: all objections not so included shall be deemed waived.

The notice of hearing shall be addressed to all the parties EXC: objections that are not deemed waived even if not included in
concerned. It shall also specify the time and date of the hearing w/c the motion are:
shall not be later than 10 days after the filing of the motion.
a. court has no juris over the subj matter;
b. there is another action pending between the same parties
SECTION 6. for the same cause (litis pendentia);
c. action is barred by prior judgment (res judicata); and
Section 6. Proof of service necessary. – No written motion set for hearing
d. action is barred by the statute of limitations (prescription).
shall be acted upon by the court without proof of service thereof.

PROOF OF SERVICE
SECTION 9.
Proof of service of the motion is required.
Section 9. Motion for leave. – A motion for leave to file a pleading or motion
No written set for hearing shall be acted upon by the court w/o shall be accompanied by the pleading or motion sought to be admitted.
proof of service thereof.
MOTION FOR LEAVE TO FILE MOTION

A motion for leave to file a motion shall be accompanied by the


SECTION 7. motion sought to be admitted. The same rule applies to pleadings.
Section 7. Motion day. – Except for motions requiring immediate action, all
motions shall be scheduled for hearing on Friday afternoons, or if Friday is a
non-working day, in the afternoon of the next working day.
SECTION 10.
Section 10. Form. – The Rules applicable to pleadings shall apply to written
motions so far as concerns caption, designation, signature, and other matters
of form.

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GROUNDS FOR DISMISSAL ARE EXCLUSIVE


RULE 16
The grounds for dismissal are exclusive to those specifically
MOTION TO DISMISS mentioned in Sec. 1, Rule 16 of the ROC.

SECTION 1.
Section 1. Grounds. – Within the time for but before filing the answer to the 1st GROUND: “ THE COURT HAS NO JURIS OVER THE PERSON OF
complaint or pleading asserting a claim, a motion to dismiss may be made on THE DEFENDING PARTY.”
any of the following grounds:
HOW CAN THE COURT ACQUIRE JURIS OVER THE PERSON OF THE
a. That the court has no jurisdiction over the person of the defending
party; DEFENDANT
b. That the court has no jurisdiction over the subject matter of the claim;
c. That venue is improperly laid; Juris over the person of the defendant may be acquired either by
d. That the plaintiff has no legal capacity to sue; service of summons or by the defendant’s voluntary appearance in
e. That there is another action pending between the same parties for the
court and submission to its authority.
same cause;
f. That the cause of action is barred by a prior judgment or by the statute
of limitations;
EFFECTS OF INVALID SERVICE OF SUMMONS
g. That the pleading asserting the claim states no cause of action;
h. That the claim or demand set forth in the plaintiff's pleading has been If defendants have not been validly summons, the court acquires no
paid, waived, abandoned, or otherwise extinguished; juris over their person, and the judgment against them shall be null
i. That the claim on which the action is founded is enforceable under the and void.
provisions of the statute of frauds; and
j. That a condition precedent for filing the claim has not been complied HOW OBJECTION MAY BE RAISED
with.
May be made initially either in a MTD or in the answer as an
MOTION TO DISMISS (MTD), defined
affirmative defense.
It is an application for the dismissal of the action based on the
MTD QUESTIONG JURIS OVER THE PERSON OF THE DEFENDANT
grounds set forth under Sec. 1, Rule 16 to be filed before the filing of
NOT VOLUNTARY APPEARANCE
a responsive pleading.
A defendant who filed a MTD, assailing the juris of the court over his
HYPOTHETICAL ADMISSIONS OF A MTD
person, together w/ other grounds raised therein, is not deemed to
MTD hypothetically admits the truth of the material allegations in have appeared voluntarily before the court.
the complaint.

Such admission extends only to such matters of fact that have been 2ND GROUND: “ THAT THE COURT HAS NO JURIS OVER THE SUBJ
sufficiently pleaded and not to mere epithets charging fraud, MATTER OF THE CLAIM.”
allegations of legal conclusions/erroneous statements of law,
inferences from facts not stated, matters of evidence or irrelevant LACK OF JURIS OVER THE SUBJ MATTER CAN BE RAISED ANYTIME
matters.
Juris over the subj matter is conferred only by the Constitution or
TIME TO FILE THE MOTION the law. It cannot be acquired though a waiver or enlarged by the
omission of the parties or conferred by the acquiescence of the
W/in the time for filing the answer but before filing said answer, a court.
MTD may be filed on any of the grounds mentioned.
Objections to juris over the subj matter may, as a rule, made at any
G.R. – a MTD that is filed, after the answer has been filed, is stage of the proceedings, even for the first time on appeal as long as
considered filed out of time and the defending party is estopped estoppel by laches does not set in.
from filing the MTD.

EXC: Sec. 1, Rule 9 of the ROC 3RD GROUND: “THAT VENUE IS IMPROPERLY LAID.”
a. Lack of juris over the subj matter; MOTU PROPIO DISMISSAL
b. There is another action pending between the same parties
for the same cause (litis pendentia); Venue is merely procedural. It should be raised at the earliest
c. The action is barred by a prior judgment (res judicata); opportunity. A court cannot motu propio dismiss a complaint on the
d. The actions is barred by the statute of limitations ground of improper venue since improper venue may be waived for
(prescription). failure to object it.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

EXC: (a) under the Revised Rules on Summary procedure; and (b) G.R. – PRIORITY IN TIME RULE
under Small Claims Cases.
He who files first is prefered in law. As a rule, in case of 2 pending
EFFECT OF DISMISSAL action, the 2nd action must yield to the 1st action on the ground of:

Order is merely interlocutory, hence, appeal is not the remedy bec. a. Comity – non-interference of co-equal body; and
dismissal is w/o prejudice. Remedy available is to refile. b. To prevent confusion w/c will hinder the administration of
justice.

4TH GROUND: “THAT THE PLAINTIFF HAS NO LEGAL CAPACITY TO MORE APPROPRIATE ACTION RULE
SUE.”
There should be a pending action. What is being considered in this
PERSONS WHO HAVE NO LEGAL CAPACITY TO SUE rule is that, who between the two is the more appropriate action.
The rule does not provide that the 2nd case must yield to the 1st case.
a. When the plaintiff is not in full exercise of his civil rights (i.e.
those suffering from civil interdicion); Guidelines:
b. If the plaintiff does not have the character or representation
Relevant considerations:
that he claims;
c. Foreign corporation doing business in the PH w/o securing a a. Date of the filing;
license; b. Whether the 2nd action was to preempt/in anticipation of
d. Minority the 1st case; and
e. Insanity; c. Whether the action is the appropriate vehicle for litigating
f. Lack of juridical personality; and the issues between the parties.
g. Incompetence.
IN THE INTEREST OF JUSTICE RULE

5TH GROUND: “THAT THERE IS ANOTHER ACTION PENDING Between the two, what case will better serve the interest of justice.
BETWEEN THE SAME PARTIES FOR THE SAME CAUSE.” Criteria:
LITIS PENDENTIA – MEANING a. Nature of the controversy;
A latin term w/c means “a pending suit” and is variously referred to b. Comparative accessibility of the court to the parties; and
in some decisions as lis pendens and auter action pendant. c. Similar factors being considered.

As a ground for the dismissal of a civil action, it refers to situation ANTICIPATORY RULE
where 2 actions are pending between the same parties for the same Whether the later case is an anticipatory action to preempt the first
coa, so that one of them becomes unnecessary and vexatious. case or as a defense so that the first case cannot proceed.
It is based on the policy against multiplicity of suits. LITIS PENDENTIA IN INTERVENTION
REQUISITES As to the presence of intervenors, litis pendentia does not require a
Litis pendentia requires the concurrence of the ff elements: literal identity of parties. It is sufficient that there is identity of
interests represented.
a. Indentity of parties, or at least their representation of the
same interests in both actions – substantial identity is
required not absolute; 6TH GROUND: “THAT THE CAUSE OF ACTION IS BARRED BY A PRIOR
b. Identity of rights asserted and reliefs prayed for, the relief JUDGMENT OR BY THE STATUTE OF LIMITATION.”
being founded on the same facts;
c. Identity of the 2 cases, such that any judgment that may RES JUDICATA
be rendered in the pending case, regardless of w/c party is
Res judicata literally means “a matter adjudged; a thing judicially
successful, would amount to res judicata in the other case.
acted upon/decided; a thing/matter settled by judgment.”
WHEN DOES LITIS PENDENTIA EXIST
The doctrine is a rule that pervades every well-regulated system of
All of the requisites must be present. Absent one requisite, there is jurisprudence and is founded upon 2 grounds:
no litis pendentia.
a. Public policy and necessity – w/c makes it in the interest of
the State that there should be an end to litigation; and

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
b. Avoidance of mutliplicity of suits – the hardship of the parties, subject matterm and coa. In this instance, the judgment in
individual that he should be vexed twice for the same the first case constitutes an absolute bar to the second action.
cause.
REQUISITES
BASIS OF THE DOCTRINE
a. The former judgment/order must be final;
Under the doctrine, a final judgment or decree on the merits b. It must be a judgment on the merits;
rendered by a court of competent juris is conclusive of the rights of c. It must have been rendered by a court having juris over
the parties/their privies in all later suits and on all points and the subj matter and the parties; and
matters determined in the previous suit. d. There must be between the 1st and 2nd actions, indentity
of parties, subj matter, and coa.
ASOLUTE IDENTITY OF COA NOT REQUIRED IN RES JUDICATA
CONCLUSIVENESS OF JUDGMENT
It is hornbook rule that identity of coa does not mean absolute
identity, ow, a party could easily escape the operation of res judicata WHEN WILL CONCLUSIVENESS OF JUDGMENT EXIST
by changing the form of the action/the relief sought.
Where there is identity of parties in the 1st and 2nd cases, but no
RES JUDICATA IN CASE OF EXERCISE OF ADMIN POWERS identity of coa, the 1st judgment is conclusive only as to those
matters actually and directly controverted and determined and not
The court has declared that the doctrine applies only to judicial/q- as to matters merely involved therein.
judicial proceedings, and not to the exercise of admin powers, the
Court also limited the latter to proceedings purely admin in nature. Thus, if a particular question is in issue in the 2nd action, and the
Therefore, when admin proceedings take on an adversary character, judgment will depend on the determination of the particular
the doctrine certainly applies. question, a former judgment between the same parties or their
privies will be final and conclusive in the 2nd if that same question
NO RES JUDICATA IN CRIMINAL PROCEEDINGS
was in issue and adjudicated in the first suit.
It is a doctrine of civil law and, thus, has no bearing on criminal REQUISITES
proceedings.
a. The former judgment/order must be final;
2 CONCEPTS OF RES JUDICATA
b. It must be a judgment on the merits;
a. Barred by prior judgment as enunciated in Sec. 47(b), Rule c. It must have been rendered by a court having juris over
39; and the subj matter and the parties; and
b. Conlusiveness of judgment in Sec. 47(c), Rule 39. d. There must be between the 1st and 2nd actions, indentity
of parties, and subj matter – no identical coa.
RES JUDICATA BARS RELITIGATON

Res judicata bars the relitigation of facts/issues that have once been EFFECTS OF CONCLUSIVENESS OF JUDGMENT
settled by a court of law upon a final judgment on the merits.
While conclusiveness of judgment does not have the same barring
DISTINCTION BETWEEN LITIS PENDENTIA AND RES JUDICATA effect as that of a bar by former judgment that proscribes

Litis Pendentia Res Judicata


subsequent actions, the former nonetheless estops the parties from
Both cases have identical One of the case has already
raising in a later case the issues or points that were raised and
parties, subj matter and coa w/c been decided w/ finality on the
controverted, and were determinative of the ruling in the earlier
are still pending. merits.
case.
MTD can be filed in either of the 2st case w/c was decided bars
2 suits pending. the filing of a 2nd case and the
mtd can be filed in the STATUTE OF LIMITATION
subsequent case.
A mtd on the ground of prescription will be given due course only if
the complaint shows on its face that the action has already
BARRED BY PRIOR JUDGMENT
prescribed.
WHEN WILL BAR BY PRIOR JUDGMENT EXIST
WHEN IS PRESCRIPTION OF ACTIONS INTERRUPTED
When as between the first case where the judgment was rendered
a. When the actionis filed in court;
and the second case that is sought to be barred, there is identity of
b. When there is an extra-judicial demand;

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

c. When there is a written acknowledgement of the debt of The test of the sufficiency of the facts alleged in the complaint is
the debtor. WON, admitting the facts alleged, the court could render a valid
judgment upon the same in accordance w/ the prayer of the
When it appears from the pleadings/evidence on record that the
complaint.
action is already barred by the statute of limitations, the court shall
dismiss the claim. ESSENTIAL ELEMENTS WHETHER COMPLAINT STATES A COA

a. A right in favor of the plaintiff by whatever means and


7TH GROUND: “THAT THE PLEADING ASSERTING THE CLAIM STATES whatever law it arises;
NO COA.” b. The correlative obligation of the defendant to respect such
right; and
FAILURE TO STATE COA AS DISTINGUISHED FROM LACK OF COA c. The act/omission of the defendant violates the right of the
plaintiff.
Failure to state a COA Lack of a COA
Insufficiency of the allegations in Applieas to situation where the INSTANCES WHERE A MTD CAN BE AVAILED OF
the petition/complaint. evidence failed to prove the coa
alleged in the pleading. A mtd can be filed on the ground that the complaint asserting a
Ground for MTD under Rule 16. Ground for dismissal using claim fails to state a coa on the ff instances:
demurrer to evidence under a. Complaint does not contain all the facts constituting
Rule 33. plaintiff’s coa;
Raised before the defendant/ After the plaintiff has completed b. Plaintiff filing the case isnot the real party in interest; and
respondent files a responsive presenting his evidence. c. Plaintiff has not exhausted all admin remedies and
pleading. complaint fails to allege the fact of such exhaustion.
Dismissal w/o prejudice to the Dismissal constitutes res
refiling of an amended judicata on the issue and will bar
complaint. future suits based on the same 8TH GROUND: “THAT THE CLAIMD/DEMAND SET FORTH IN THE
coa. PLAINTIFF’S PLEADING HAS BEEN PAID, WAIVED, ABANDONED, OR
OTHERWISE EXTINGUISHED.”
TEST TO DETERMINE THE SUFFICIENCY OF THE MTD BASED ON
MATERIAL ALLEGATIONS MODES OF EXTINGUISHMENT OF OBLIGATION

When a defendant seeks the dismissal of the complaint through a Modes of extinguishment of obligation under Art. 1231 of the NCC
mtd, the sufficiency of the motion should be tested on the strength are as follows:
of the allegations of facts contained in the complaint and on no a. Payment/performance;
other basis. b. By the loss of the thing due;
SUFFICIENCY OF MATERIAL ALLEGATIONS IN THE COMPLAINT IS c. By the condonation/remission of the debt;
NECESSARY d. By the confusion/merger of rights or debtor and creditor;
e. By novation.
Nothing is more settled than the rule that in motion to dismiss for
failure to state a coa, the inquiry is into the sufficiency, not the LACHES, defined.
veracity, of the material allegations. The failure or neglect for an unreasonable and unexplained length of
The sufficiency of the motion should be tested on the strength of time to do that w/c, by observance of due diligence, could or should
the allegations of fact contained in the complaint and no other. have been done earlier.

THE INQUIRY IS CONFINED TO THE FOUR CORNERS OF THE REQUISITES OF LACHES


COMPLAINT a. Conduct on the part of the defendant, or of one under
In a mtd a complaint based on lack of coa, the questions submitted whom he claims, giving rise to the situation complained of;
to the court for determination is the sufficiency of the allegations b. Delay in asserting complainant’s rights after he had
made in the complaint to constitute a coa and not whether those knowledge of defendant’s acts and after he has had the
allegations of fact are true, for said motion must hypothetically opportunity to sue;
admit the truth of the facts alleged in the complaint. c. Lack of knowledge or notice by the defendant that the
complaint will assert the right on w/c he bases his suit; and

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HEARING OF THE MTD


d. Injury or prejudice to the defendant in the event the relief
is accorded to the complainant. A mtd is a litigated motion and, hence, should be heard. At the
hearing, the parties shall:
9TH GROUND: “THAT THE CLAIM ON W/C THE ACTION IS FOUNDED
IS UNENFORCEABLE UNDER THE PROVISIONS OF THE STATUTE OF a. Submit their arguments on the questions of law;
FRAUDS.” b. Submit their evidence on the questions of fact involved
except those not available at that time; and
Contracts w/c are unenforceable under the Statute of Frauds, unless
c. Should the case go to trial, the evidence presented during
ratified by the parties, to wit:
the hearing shall automatically be part of the evidence of
a. An agreement that by its terms is not to be performed the party presenting the same.
within a year from the making thereof;
b. A special promise to answer for the debt, default, or
miscarriage of another; SECTION 3.
c. An agreement made in consideration of marriage, other
than a mutual promise to marry; Section 3. Resolution of Motion. – After the hearing, the court may dismiss
d. An agreement for the sale of goods, chattels or things in the action or claim, deny the motion, or order the amendment of the
pleading.
action, at a price not less than five hundred pesos, unless
the buyer accept and receive part of such goods and The court shall not defer the resolution of the motion for the reason that the
chattels, or the evidences, or some of them, of such things ground relied upon is not indubitable.
in action or pay at the time some part of the purchase
money; but when a sale is made by auction and entry is In every case, the resolution shall state clearly and distinctly the reasons
therefor.
made by the auctioneer in his sales book, at the time of
the sale, of the amount and kind of property sold, terms of
COURSES OF ACTION OF THE COURT ON THE MTD
sale, price, names of the purchasers and person on whose
account the sale is made, it is a sufficient memorandum; After hearing, the court may resolve the motion by:
e. An agreement of the leasing for a longer period than one
year, or for the sale of real property or of an interest a. Dismissing the action/claim;
therein; b. Deny the motion; or
f. A representation as to the credit of a third person.
c. Order the amendment of the pleading.

LIMITATION IN THE RESOLUTION OF THE MOTION


10TH GROUND: “THAT A CONDITION PRECEDENT FOR FILING THE
CLAIM HAS NOT BEEN COMPLIED WITH.” a. Court shall not defer the reso of the motion for the reason
that the ground relied upon is no indubitable;
CONDITION PRECEDENTS THAT MUST BE COMPLIED W/ BEFORE
b. In every case, the reso shall state clearly and distinctly the
THE FILING OF THE CASE BEFORE THE COURT
reasons therefor.
a. Referral to Barangay Conciliation;
b. Exhaustion of Admin Remedies;
c. Earnes efforts towards amicable settlement between SECTION 4.
members of the same family; Section 4. Time to plead. – If the motion is denied, the movant shall file his
d. Certification of Non-forum Shopping; answer within the balance of the period prescribed by Rule 11 to which he
e. Payment of Docket Fees; was entitled at the time of serving his motion, but not less than five (5) days
in any event, computed from his receipt of the notice of the denial. If the
f. Tender of payment in case of consignation;
pleading is ordered to be amended, he shall file his answer within the period
g. Demand to vacate and payment of rentals/reasonable prescribed by Rule 11 counted from service of the amended pleading, unless
compensation for the use and occupation of the property; the court provides a longer period.
h. Arbitration; and
REMEDY OF THE DEFENDANT IF THE MOTION IS DENIED
i. Prior resort to an ADR.
Movant shall file his answer w/in the balance of the period
prescribed by Rule 11 to w/c he was entitled, at the time of serving
SECTION 2. his motion, but not less than 5 days in any event.
Section 2. Hearing of motion. – At the hearing of the motion, the parties shall
G.R. - The ordinary procedure is that after the denial of MTD, the
submit their arguments on the questions of law and their evidence on the
questions of fact involved except those not available at that time. Should the defendant should file an answer, go to trial and, if the decision is
case go to trial, the evidence presented during the hearing shall adverse, reiterate the issues on appeal.
automatically be part of the evidence of the party presenting the same.

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EXC – when the court in denying the MTD acted w/o or in excess of
juris or w/ grave abuse of discretion in w/c case certiorari under Rule RULE 17
65 of ROC may be availed of. DISMISSAL OF ACTIONS
ORDER DENYING A MTD IS INTERLOCUTORY
SECTION 1.
An order denying a mtd is interlocutory bec it does not finally Section 1. Dismissal upon notice by plaintiff. – A complaint may be dismissed
dispose of the case, and, in effect, directs the case to proceed until by the plaintiff by filing a notice of dismissal at any time before service of the
answer or of a motion for summary judgment. Upon such notice being filed,
final adjudication by the court. The appropriate remedy is for the the court shall issue an order confirming the dismissal. Unless otherwise
party to wait for the final judgment/order and assign such order as stated in the notice, the dismissal is without prejudice, except that a notice
an error of the court on appeal. operates as an adjudication upon the merits when filed by a plaintiff who has
once dismissed in a competent court an action based on or including the
same claim.

SECTION 5. MANNER OF DISMISSAL OF THE ACTION BY THE PLAINTIFF

Section 5. Effect of dismissal. – Subject to the right of appeal, an order a. Dismissal upon notice of the plaintiff (Sec. 1, Rule17);
granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1
hereof shall bar the refiling of the same action or claim.
b. Dismissal upon motion of the plaintiff (Sec. 2, Rule 17; and
c. Dismissal due to the fault of the plaintiff (Sec. 7, Rule 17).
WHAT ARE THE EFFECTS AND REMEDY OF DISMISSAL OF THE
ACTION – W/ PREJUDICE DISMISSAL BY MERE NOTICE OF DISMISSAL

Subject to the right of appeal, an order granting motion to dismiss Before the service of an answer or a motion for summary judgment,
based on par. (f), (h), and (i) Sec. 1 hereof shall bar the refiling of the a complaint may be dismissed by the plaintiff by filing a notice of
same action/claim. dismissal.

The remedy is appeal since the order of dismissal is a final order and Upon the filing of the notice of dismissal, the court shall issue an
an adjudication on the merits w/c bars the refilinf of the action. order confirming the dismissal.

REMEDY IN CASE OF DISMISSAL OF THE ACTION ON THE GROUNDS Since the order issued by the court merely confirms the dismissal, it
OTHER THAN PAR. (F), (H), AND (I) – W/O PREJUDICE follows that the court does not have to approve the dismissal bec it
has no discretion on the matter.
Proper remedy is the refiling of the action/amendment of the
pleading depending on the grounds. Before an answer or a motion for summary judgment has been
served upon the plaintiff, the dismissal by the plaintiff by the filing of
a notice is a matter of right.

SECTION 6. It is submitted that the dismissal should occur as of the date the
Section 6. Pleading grounds as affirmative defenses. – If no motion to dismiss notice is filed by the plaintiff and, not as of the date the court issues
has been filed, any of the grounds for dismissal provided for in this Rule may the order confirming the dismissal.
be pleaded as an affirmative defense in the answer and, in the discretion of
the court, a preliminary hearing may be had thereon as if a motion to dismiss DISMISSAL W/O PREJUDICE; EXCEPTIONS
had been filed.
G.R. – a dismissal made by the filing of a notice of dismissal is a
The dismissal of the complaint under this section shall be without prejudice
to the prosecution in the same or separate action of a counterclaim pleaded dismissal w/o prejudice.
in the answer.
EXC – dismissal will be one w/ prejudice in any of the ff situations:
WHAT IS THE REMEDY IN CASE THAT THERE IS NO MTD FILED
a. Notice of dismissal by the plaintiff provides that the
Any of the grounds for dismissal provided for in this Rule may be: dismissal is w/ prejudice; or
b. Plaintiff has previously dismissed the same case in a court
a. Pleaded as an affirmative defense in the answer; and
of competent juris based on or including the same claim –
b. In the discretion of the court, a preliminary hearing may
2 dismissal rule.
be had thereon as if a mtd had been filed.
TWO-DISMISSAL RULE
EFFECT OF THE DISMISSAL OF THE ACTION
Requisites – applies when plaintiff:
The dismissal of complaint under this Section shall be w/o prejudice
to the prosecution in the same/separate action of a counterclaim a. Twice dismissed actions;
pleaded in the answer. b. Based on or including the same claim;

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c. In a court of competent juris. complaint may be dismissed upon motion of the defendant or upon the
court's own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action. This dismissal
The 2nd notice of dismissal will bar the refiling of the action bec it will
shall have the effect of an adjudication upon the merits, unless otherwise
operate as an adjudication of the claim upon the merits. declared by the court.

However, such rule will not apply if prior dismissal was done at the DISMISSAL DUE TO THE FAULT OF PLAINTIFF
instance of the defendant.
Dismissal in this case will be through reasons attributed to his fault.
Sec. 3, Rule 17 provides the ff grounds for dismissal:
SECTION 2. a. Failure of the plaintiff, w/o justifiable reasons, to appear
Section 2. Dismissal upon motion of plaintiff. – Except as provided in the on the date of the presentation of his evidence in chief;
preceding section, a complaint shall not be dismissed at the plaintiff's b. Failure to prosecute his action for an unreasonable length
instance save upon approval of the court and upon such terms and
of time – non prosequitor;
conditions as the court deems proper. If a counterclaim has been pleaded by
a defendant prior to the service upon him of the plaintiffs motion for c. Failure to comply w/ the ROC; or
dismissal, the dismissal shall be limited to the complaint. The dismissal shall d. Failre to comply w/ any order of the Court.
be without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within fifteen (15) days from notice Dismissal due to the fault of the plaintiff may be done by the:
of the motion he manifests his preference to have his counterclaim resolved
in the same action. Unless otherwise specified in the order, a dismissal under a. Court on its own motion; or
this paragraph shall be without prejudice. A class suit shall not be dismissed
or compromised without the approval of the court.
b. Upon a motion filed by the defendant.

DISMISSAL BY FILING A MOTION TO DISMISS TEST TO DETERMINE THE DOCTRINE OF NON-PROSEQUITOR AS A


GROUND FOR DISMISSAL
Once either an answer or a motion fo summary judgment has been
served on the plaintiff, the dismissal is no longer a matter of right Fundamental test for non prosequitor is whether, under the
and will require the filing of a MTD, not a mere notice of dismissal. circumstances, the plaintiff is chargeable w/ want of due diligence in
failing to proceed w/ reasonable promptitude. There must be
The motion to dismiss will not be subject to the approval of the unwillingness on the part of the plaintiff to prosecute.
court w/c will decide on the motion upon such terms and conditions
as are just. Dismissal is now a matter of judicial discretion.
SECTION 4.
DISMISSAL W/O PREJUDICE
Section 4. Dismissal of counterclaim, cross-claim, or third-party complaint. –
G.R. – dismissal is w/o prejudice. The provisions of this Rule shall apply to the dismissal of any counterclaim,
cross-claim, or third-party complaint. A voluntary dismissal by the claimant
EXC – if the order of dismissal specifies that it is w/ prejudice. by notice as in section 1 of this Rule, shall be made before a responsive
pleading or a motion for summary judgment is served or, if there is none,
EFFECT OF DISMISSAL UPON A COUNTERCLAIM ALREADY PLEADED before the introduction of evidence at the trial or hearing.

Dismissal shall be limited to the complaint. The counterclaim is not


dismissed, whether it is a compulsory/a permissive cc bec the rule
makes no distinction. RULE 18
PRE-TRIAL
G.R. – the defendant, if he so desires, may prosecute his cc in a
separate action.
SECTION 1.
EXC – he manifests his preference to have his cc resolved in the Section 1. When conducted. – After the last pleading has been served and
filed, if shall be the duty of the plaintiff to promptly move ex parte that the
same action.
case be set for pre-trial.
He shall inform the court of such preference w/in 15 days from
HOW PRE-TRIAL IS CALLED
notice of the MTD served by the plaintiff.
In a civil case, it is not the court w/c initiates the setting of the case
for a pre-trial. It is set at the instance of the plaintiff. It shall be the
SECTION 3. duty of the plaintiff, not of the defendant, to promptly file a motion
to set the case for pre-trial.
Section 3. Dismissal due to fault of plaintiff. – If, for no justifiable cause, the
plaintiff fails to appear on the date of the presentation of his evidence in
This motion is an ex parte motion. This means that the motion need
chief on the complaint, or to prosecute his action for an unreasonable length
of time, or to comply with these Rules or any order of the court, the not be the subject of a hearing.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

WHEN MOTION IS FILED during pre-trial all issues they intend to raise during the trial, except
those involving privileged/impeaching matters.
The ex parte motion to set the case for pre-trial is to be made by the
plaintiff after the last pleading has been served and filed. DISTINCTIONS BETWEEN PRE-TRIAL IN CIVIL AND CRIMINAL CASES

If the plaintiff fails to file said motion w/in 5 days after the last Pre-trial in Civil Cases Pre-trial in Criminal Cases
pleading, the branch clerk of court shall issue a notice of pre-trial. It is set when the plaintiff moves It is ordered by the court and no
ex parte. motion to set is required.
MEANING OF “LAST PLEADING”
Made after the last pleading has After arraignment and w/in 30
The last permissible pleading that a party can file is the reply to the been served. days from the date the court
answer to the last pleading asserting a claim. acquired juris over the person of
the accused.
Where the last pleading has not yet been served and filed, the case Consideres the possibility of Does not include possibility of
is not yet ready for pre-trial. however, the last pleading need not be amicable settlement. amicable settlement.
literally construed as one having been served and filed. For purposes Agreements and admissions are Agreements or admissions shall
of the pre-trial, the expiration of the period for filing the last not required to be signed by be reduced in writing and signed
pleading, w/o it having been served and filed, is sufficient. parties and counsels. They are by the accused and cousel. Ow,
contained in the record of pre- they cannot be used against the
trial and pre-trial order. accused.
SECTION 2. Sanctions for non-appearance Santions are imposed upon the
Section 2. Nature and purpose. – The pre-trial is mandatory. The court shall are impose upont the plaintiff counsel for the accused or the
consider:
w/c will result to the dismissal prosecutor.
(a) The possibility of an amicable settlement or of a submission to w/ prejudice unless ow ordered
alternative modes of dispute resolution; by court; or defendant w/c
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
would result in the ex parte
(d) The possibility of obtaining stipulations or admissions of facts and of presentation of evidence by the
documents to avoid unnecessary proof; plaintiff.
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner;
(g) The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor be
found to exist;
(h) The advisability or necessity of suspending the proceedings; and
SECTION 3.
(i) Such other matters as may aid in the prompt disposition of the action. Section 3. Notice of pre-trial. – The notice of pre-trial shall be served on
counsel, or on the party who has no counsel. The counsel served with such
CONDUCT OF PRE-TRIAL notice is charged with the duty of notifying the party represented by him.

Pre-trial in both civil and criminal cases is mandatory. TO WHOM THE NOTICE BE SERVED

EFEFCT OF FAILURE TO CONDUCT A PRE-TRIAL Notice of pre-trial shall be served to the ff:

It is elementary and plain that the holding of such a pre-trial a. To the counsel; or
conference is mandatory and failure to do so is inexcusable. Such b. To the party who has not counsel;
ignorance of a basic rule sadly amounts to gross ignorance and c. The counsel served w/ such notice is charged w/ the duty
warrants a corresponding penalty. of notifying the party represented by him.

REFERRAL TO THE PH MEDIATION CENTER (PMC) NOTICE OF PRE-TRIAL

At the start of the prelim conference, the judge is mandated to refer The present rule simplifies the procedure since th enotice of pre-trial
the parties and/or their counsels to the mediation unit of the PMC. is now served on the counsel, and service is made on the party only
If mediation fails, the judge will schedule the continuance of the if he has no counsel.
prelim conference.
Thus, failure of a party to appear at the pre-trial has adverse
PRIMARY INTENTION OF PRE-TRIAL CONFERENCE consequences. If the absent party is the plaintiff, the he may be
declared non-suited and his case dismissed. If it is the defendant,
It is primarily intended to insure that the parties properly raise all then the plaintiff may be allowed to present his evidence ex parte
issues necessary to dispose of a case. The parties must disclose and the court to render judgment on the basis thereof.

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REMEDY OF THE PLAINTIFF ON THE ORDER OF DISMISSAL


SECTION 4.
(W/PREJUDICE)
Section 4. Appearance of parties. – It shall be the duty of the parties and
their counsel to appear at the pre-trial. The non-appearance of a party may
The remedy of the plaintiff is to appeal from the orderof dismissal.
be excused only if a valid cause is shown therefor or if a representative shall
appear in his behalf fully authorized in writing to enter into an amicable Since appeal is available, certiorari under Rule 65 is not the remedy
settlement, to submit to alternative modes of dispute resolution, and to bec the application of the petition for certiorari is conditioned upon
enter into stipulations or admissions of facts and of documents. the absence of appeal or any plain, speedy and adequate remedy.
DUTIES OF THE PARTIES AND COUNSELS DURING PRE-TRIAL EFFECT OF FAILURE TO APPEAR BY THE DEFENDANT
It is the duty of the parties and counsel during pre-trial to appear. Failure of the defendant to appear shall cause to allow the plaintiff
to present his evidence ex parte and for the court to render
REQUIREMENTS IN ORDER THAT A PARTY BE EXCUSED FROM
judgment on the basis of the evidence presented by the plaintiff.
APPEARING
POSSIBLE REMEDIES OF THE DEFENDANT
a. A valid cause is shown therefor; or (and)
b. If a representative shall appear in his behalf fully Before judgment – order of the court allowing the plaintiff to
authorized in writing to enter into any of the ff matters: present his evidence ex parte does not dispose of the case w/
i. An amicable settlement; finality. The order therefore, is mere interlocutory hence, not
ii. Alternative modes or dispute resolution; or appealable. Defendant may:
iii. Stipulations or admissions of facts and docs.
a. move for reconsideration; and
It is not sufficient for the written authority to give the representative b. petition for certiorari (Rule 65) – if denial is tainted w/
the power to enter into only one of the matters mentioned in Sec. 4, grave abuse of discretion.
Rule 18, as when the only authority granted is to enter into an
amicable settlement. After judgment but before finality:

The authority must also confer upon the representative the power a. file an MR of the judgment or New trial on the ground of
to submit to alternative modes of dispute reso, and to enter into FAME.
stipulations/admissions of facts. b. In case of denial of MR/New trial, he may appeal
judgment, unless tainted w/ grave abuse of discretion –
certiorari may be available.
An incomplete authority does not satisfy the requirements of the
Rules and should be deemed the equivalent of having no authority After finality of judgment:
at all.
a. Petition for relief from judgment (Rule 38);
N.B. – written authority must be in the form of a special power of b. Petition for annulment of judgment if the remedy of MR,
atty. new trial, appeal or petition for relief from judgment are
no longer available (Rule 47);
c. Petition for certiorari (Rule 65);
SECTION 5. d. Collateral attack.
Section 5. Effect of failure to appear. – The failure of the plaintiff to appear
when so required pursuant to the next preceding section shall be cause for
dismissal of the action. The dismissal shall be with prejudice, unless other- SECTION 6.
wise ordered by the court. A similar failure on the part of the defendant shall
be cause to allow the plaintiff to present his evidence ex parte and the court Section 6. Pre-trial brief. – The parties shall file with the court and serve on
to render judgment on the basis thereof. the adverse party, in such manner as shall ensure their receipt thereof at
least three (3) days before the date of the pre-trial, their respective pre-trial
EFFECT OF FAILURE OF THE PLAINTIFF TO APPEAR DURING PRE- briefs which shall contain, among others:
TRIAL (a) A statement of their willingness to enter into amicable settlement or
alternative modes of dispute resolution, indicating the desired terms
a. He will be declared non-suited; thereof;
b. Will cause the dismissal of the case; and (b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
c. Dismissal is w/o prejudice to the counterclaim raised by
(d) The documents or exhibits to be presented stating the purpose thereof;
the defendant. (e) A manifestation of their having availed or their intention to avail
themselves of discovery procedures or referral to commissioners; and
NATURE OF THE DISMISSAL (f) The number and names of the witnesses, and the substance of their
respective testimonies.
Dismissal shall be w/ prejudice, unless ow ordered by court.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

Failure to file the pre-trial brief shall have the same effect as failure to
court names, addressess, and contact nos. of the witnessess to be
appear at the pre-trial. summoned by subpoena.

WHEN WILL A PRE-TRIAL BRIEF BE FILED QUESTIONS ARE TO BE ASKED BY THE JUDGE

The parties shall file w/ the court and serve on the adverse party. In During the pre-trial,the judge shall be the one to ask questions on
such manner as shall insure their receipt thereof at least 3 days issues raised by the parties, and all the questions or comments by
before the date of the pre-trial, their respective pre-trial briefs. counsel/parties must be directed to the judge to avoid hostilities
between parties.
WHAT DOES A PRE-TRIAL BRIEF CONTAIN

a. A statement of their willingness to enter into amicable SECTION 7.


settlement or alternative modes of dispute resolution,
Section 7. Record of pre-trial. – The proceedings in the pre-trial shall be
indicating the desired terms thereof;
recorded. Upon the termination thereof, the court shall issue an order which
b. A summary of admitted facts and proposed stipulation of
shall recite in detail the matters taken up in the conference, the action taken
facts;
thereon, the amendments allowed to the pleadings, and the agreements or
c. The issues to be tried or resolved;
d. The documents or exhibits to be presented stating the admissions made by the parties as to any of the matters considered. Should
purpose thereof; the action proceed to trial, the order shall, explicitly define and limit the
e. A manifestation of their having availed or their intention to issues to be tried. The contents of the order shall control the subsequent
avail themselves of discovery procedures or referral to course of the action, unless modified before trial to prevent manifest
commissioners; and injustice.
f. The number and names of the witnesses, and the substance
of their respective testimonies. PRE-TRIAL ORDER

It is issued upon the termination of the pre-trial. it shall be issued


IDETIFICATION AND MARKING OF EVIDENCE
w/in 10 days after the termination of the pre-trial. this order recites,
in details, the ff:
It is vital to have the docs and exhibits identified and marked during
the pre-trial. a. Matters taken up in the conference;
b. Action taken thereon;
The current rule establishes the policy that no evidence shall be c. Amendments allowed to the pleadings; and
allowed to be presented and offered during the trial in support of a d. Agreements/admissions made by the parties as to any of
party’s evidence-in-chief other than those that had been earlier
the matters considered. These admissions embodied are
identified and pre-marked during the pre-trial, except if allowed by
the court for good cause shown. binding upon the parties and conclusive upon them.

Should the action proceed to trial, the pre-trial order


EFFECT OF FAILURE TO FILE A PRE-TRIAL BRIEF
a. Defines and limits the issues to be tried; and
Filure to file pre-trial brief shall have the same effect as failure to
b. Controls the subsequent course of the action, except if it is
appear at the pre-trial.
modified before the trial to prevent manifest injustice.
The dismissal of a complaint for failure to file a pre-trial brief is
discretionary on the part of the trial court.
RULE 19
N.B. – no termination of pre-trial for failure to settle. Instead judge
should expose the parties to the advantages of pre-trial. INTERVENTION

ONE DAY EXAMINATION OF WITNESS RULE


SECTION 1.
This is where the witness shall be fully examined in one day only, Section 1. Who may intervene. – A person who has a legal interest in the
matter in litigation, or in the success of either of the parties, or an interest
subject to the court’s discretion during the trial on won to extend against both, or is so situated as to be adversely affected by a distribution or
the examination for justifiable reasons. other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. The
MOST IMPORTANT WITNESS RULE court shall consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties, and whether
Where no settlement has been effected, the court shall determine or not the intervenor's rights may be fully protected in a separate
the most important witness, limit the number of such witnesses and proceeding.

require the parties and/or counsels to submit to the branch clerk of

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INTERVENTION, defined DIFFERENCES BETWEEN INTERVENTION AND INTERPLEADER

A proceeding in a suit/action by w/c a 3rd person is permitted by the Intervention Interpleader


court to make himself a perty, either joining the plaintiff or Ancilliary action. Original action.
defendant, or demanding something adverse to both of them. Proper in any of the 4 situations Presupposes that the plaintiff
mentioned in the Rule who has has no interest in the subject
PURPOSE OF INTERVENTION
legal interest therein. matter of the action or has an
To enable a stranger to an action to become a party in order for him interest therein w/c, in whole or
to protect his interest and for the court to settle all conflicting in part, is not disputed by the
claims. This is allowed to avoid multiplicity of suits. other parties to the action.
Defendants are already original Defendants are being sued
OPTION OF THE INTERVENOR parties to the pending suit. precisely to implead them.
Can choose not to participate in the case and he will not be bound Can be filed where the orig Can be filed at the instance w/
by the judgment. action is pending. RTC/MTC depending on the
nature of the property and its
INTERVENTION ALLOWED EVEN BEYOND THE PERIOD value.
Remedy is to appeal the denial Remedy is to appeal the
a. When demanded by the higher interest of justice;
being a final order or file a judgment.
b. To afford indispensible parties the right to be heard;
separate action.
c. To avoid grave injustice and injury to settle once and for all
the substative issues raised.

WHEN CAN AN INTERVENTION BE ALLOWED


SECTION 2.
It is not a matter of right but it may be permitted by the courts when
Section 2. Time to intervene. – The motion to intervene may be filed at any
the applicant shows facts w/c satisfy the requirements authorizing time before rendition of judgment by the trial court. A copy of the pleading-
intervention. in-intervention shall be attached to the motion and served on the original
parties.
WHO MAY INTERVENE
WHEN TO FILE A MOTION TO INTERVENE
A person may by leave of court intervene if he has legal interest
over: May be filed at any time before rendition of judgment by the trial
court.
a. in the matter of litigation;
b. in the success of either of the parties; or WHAT MUST BE ATTACHED TO THE MOTION
c. an interest against both, or is so situated as to be adverselt A copy of the pleading-in-intervention shall be attached to the
affected by a distribution or other disposition of property motion and served on the orig parties.
in the custody of the court.
INTERVENTION CANNOT BE MADE ON APPEAL
REQUISITES
Intervention cannot be made at the appeal stage. Motion may be
a. if the movant has legal interest or is ow qualified; and filed at any time before rendition of judgment by the trial court.
b. it will not unduly delay or prejudice the adjudication of the
rights of the orig parties.

DUTIES OF THE COURT SECTION 3.


Section 3. Pleadings-in-intervention. – The intervenor shall file a complaint-
The court shall considere the ff matters: in-intervention if he asserts a claim against either or all of the original
parties, or an answer-in-intervention if he unites with the defending party in
a. won the intervention will unduly delay or prejudice rights resisting a claim against the latter.
of the orig parties; and
RULE ON THE PLEADINGS-IN-INTERVENTION
b. won the intervenor’s rights may be fully protected in a
separate proceeding. Parties in intervention shall comply w/ the necessary pleadings:

NATURE OF THE INTEREST a. file a complaint-in-intervention if he asserts a claim agaisnt


or either of the orig parties; or
Interest contemplated by law must be actual, substantial, material,
b. answer-in-intervention if he unites w/ the defending party.
direct, and immediate, and not simply contingent or expectant.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
e. Production/inspection of docs/things (Rule 27);
f. Physical and mental examination of persons (Rule 28).
SECTION 4.
Section 4. Answer to complaint-in-intervention. – The answer to the
complaint-in-intervention shall be filed within fifteen (15) days from notice of
the order admitting the same, unless a different period is fixed by the court.
RULE 23
WHEN TO FILE A RESPONSIVE PLEADING DEPOSITIONS PENDING ACTION
Shall be filed w/in 15 days from notice of the order admitting the
SECTION 1.
same, unless a different period is fixed by the court.
Section 1. Depositions pending action, when may be taken. – By leave of
FAILURE TO FILE AN ANSWER-IN-INTERVENTION; DEFAULT court after jurisdiction has been obtained over any defendant or over
property which is the subject of the action, or without such leave after an
answer has been served, the testimony of any person, whether a party or
Sec. 4, Rule 19 requires the orig parties to file an answer to the
not, may be taken, at the instance of any party, by deposition upon oral
complaint-in-intervention w/in 15 days from notice of the order examination or written interrogatories. The attendance of witnesses may be
admitting the same, unless a different period is fixed by the court. compelled by the use of a subpoena as provided in Rule 21. Depositions shall
be taken only in accordance with these Rules. The deposition of a person
confined in prison may be taken only by leave of court on such terms as the
court prescribes.
RULES 23 - 29
DEPOSITION DEFINED
MODES OF DISCOVERY
The taking of the testimony of any person, upon oral or written
interrogatories whether a party or not, at the instance of any party.
WHAT IS A MODE OF DISCOVERY
KINDS OF DEPO
It is a device to obtain information about relevant matters on the
case from the adverse party in preparation for trial. As to the nature.

PURPOSE OF THE MODES OF DISCOVERY a. Deposition de bene esse – testimony of a witness/a party
pending action;
a. Used as a device to narrow and clarify basic issues between b. Deposition in perpetuam re memoriam – testimony of a
parties; witness/a party before action;
b. It is used as a device for ascertaining facts relative to the c. Deposition of minor child witness by videotape.
issue of the case;
c. To obtain full knowledge of the issues and facts of the case; As to the manner.
d. To avoid perjury and detection of false and fraudulent claims
a. Deposition by oral examination;
and defenses;
b. Deposition by written interrogatories.
e. To expedite the proceedings; and
f. To simplify issues of the case. DUAL PURPOSE OF TAKING DEPO

OBJECTIVES OF THE MODES OF DISCOVER a. Method of discovery; and


b. Alternative mode of testimony.
a. To be able to give fullest info to the court; and
b. Shortens litigation time and speed up adjudication. ADVANTAGES OF TAKING DEPO

NATURE OF THE MODES OF DISCOVERY a. Assist the parties in ascertaining the truth and in checking
and preventing perjury;
The application of the rules on modes of discoveries restes upon the
b. Provide an effective means of detecting and exposing
sound discretion of the court.
false, fraudulent claims and defenses;
It is cumulative w/c means that in case the party has already c. Make available in a simple, convenient and inexpensive
resorted to a particular mode of discovery it will not bar him from way, facts w/c ow could not be proved except w/ greater
resorting to other modes available. difficulty;
d. Educate the parties in advance of trial as to the real value
WHAT ARE THE MODES OF DISCOVERY of their claims and defenses thereby encouraging
a. Deposition pending action (Rule 23); settlement;
b. Deposition before action/pending appeal (Rule 24); e. Expedite litigation;
c. Interrogatories to parties (Rule 25); f. Prevent delay;
d. Admission by adverse party (Rule 26); g. Simplify and narrow down issues;

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h. Expedite and facilitate both preparation and trial. Under certain conditions and for certain limited purposes, it may be
taken even after trial has commenced and may be used w/o the
HOW WILL THE TAKING OF DEPO BE AVAILED OF
deponent being actually called to the witness stand.
Depo of any party whether a party or not may at the instance of any
Testimonies are taken through depo, in lieu of the actual presence
party upon oral examination or written interrogatories be taken in
of the witnesses at the trial in consonance w/ the principle of
the ff manner:
promotion of just, speedy, and inexpensive disposition of cases.
a. By leave of court after juris has been obtained over any
DEPO DISCRETIONARY TO COURT
defendant/over property w/c is the subject of the actin; or
b. W/o such leave after an answer has been served. The ROC vests in the trial court the discretion to order whether a
depo my be taken or not under specified circumstances that may
DEPO AVAILABLE TO ANY PERSON
even differ from those the proponents have intended.
As regarding the taking of depo, it is clear that the testimony of any
LIMITATIONS ON THE TAKING OF DEPO
person, even a non-resident, may be taken by depo upon oral
examination or written interrogatories at the instance of any party. a. If the examination is conduction in bad faith;
b. Conducted in such a manner as to annoy, embarrass, or
DEPO W/ LEAVE OF COURT
oppress the person who is the subject of the inquiry; or
A depo may be taken w/ leave of court after juris has been obtained c. When the inquiry touches upon the irrelevant or
over any defendnat or over property that is the subject of the encroaches upon the recognized domains of privilege.
action; or w/o such leave, after an answer has been served.

DOUBLE FUNCTIONS OF DEPO SECTION 2.


Section 2. Scope of examination. – Unless otherwise ordered by the court as
The right to take statements and right to use them in court have
provided by section 16 or 18 of this Rule, the deponent may be examined
been kept entirely distinc. The utmost freedom is allowed in taking regarding any matter, not privileged, which is relevant to the subject of the
depos. A result, there is accorded the widest possible opportunity pending action, whether relating to the claim or defense of any other party,
for knowledge by both parties of all facts before the trial. including the existence, description, nature, custody, condition, and location
of any books, documents, or other tangible things and the identity and
location of persons having knowledge of relevant facts.
TAKING OF DEPO W/O LEAVE OF COURT
SCOPE OF A DEPO
Leave of court is not necessary to take a depo after an answer to the
complaint has been served. It is only when an answer has not yet Deponent may be examined regarding:
been filed (but juris has been obtained over any defendant/property
sbject of the action) that prior leave of court is required. a. Any matter no privileged; or
b. Which is relevant to the subject pending action,
The reason for this is that before filing of the answer, the issues are
not yet joined and the disputed facts are not clear. Whether relating to the claim/defense of any other party, including
the existence, description, nature, custody, condition, and location
REMEDY TO COMPEL ATTENDANCE OF A WITNESS of any books, docs or other tangible things and identity and location
of persons having knowledge of relevant facts.
Attendance may be compelled by the use of a subpoena as provided
in Rule 21.

EFFECT IF DEPOS DOES NOT CONFORM TO THE REQUIREMENTS OF SECTION 3.


LAW Section 3. Examination and cross-examination. – Examination and cross-
examination of deponents may proceed as permitted at the trial under
When a depo does not conform to the essential requirements of law sections 3 to 18 of Rule 132.
and may reasonably cause material injury to the adverse party, its
taking should not be allowed. EXAMINATION IS THE TAKING OF DEPO

DEPO OF A PERSON IN PRISON Examination and cross-examination of deponents may proceed as


permitted at the trial under Sec. 3 to 18 of Rule 132.
The depo of a person confined in prison may be taken only by leave
of court on such terms as the court prescribes.

DEPO MAY BE TAKEN EVEN AFTER TRIAL HAS COMMENCED SECTION 4.


Section 4. Use of depositions. – At the trial or upon the hearing of a motion
or an interlocutory proceeding, any part or all of a deposition, so far as
admissible under the rules of evidence, may be used against any party who

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
was present or represented at the taking of the deposition or who had due As a mode of discovery being resorted to before trial, depo has the ff
notice thereof, in accordance with any one of the following provisions; advantages, to wit:
a. Any deposition may be used by any party for the purpose of a. It is of great assistance in ascertaining the truth and in checking and
contradicting or impeaching the testimony of deponent as a witness;
preventing perjury;
b. The deposition of a party or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a public or b. It is an effective means of detecting and exposing false, fraudulent, and
private corporation, partnership, or association which is a party may be sham claims and defenses;
used by an adverse party for any purpose; c. It makes available in simple, convenient, and often inexpensive way of
c. The deposition of a witness, whether or not a party, may be used by facts w/c ow could not have been proved, except w/ great difficulty and
any party for any purpose if the court finds: (1) that the witness is dead, sometimes not at all;
or (2) that the witness resides at a distance more than one hundred d. It educates the parties in advance of trial as to the real value of their
(100) kilometers from the place of trial or hearing, or is out of the
claims and defenses, thereby encouraging settlements out of court;
Philippines, unless it appears that his absence was procured by the
party offering the deposition, or (3) that the witness is unable to attend e. It expedites the disposal of many cases by settlements and dismissals
or testify because of age, sickness, infirmity, or imprisonment, or (4) w/c ow would have to be tried;
that the party offering the deposition has been unable to procure the f. It safeguards against surprises at the trial, prevents delays, and narrows
attendance of the witness by subpoena; or (5) upon application and and simplifies the issues to be tried, thereby expediting the trial; and
notice, that such exceptional circumstances exist as to make it g. It facilitates both the presentation and the trial of cases.
desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used; and
d. If only part of a deposition is offered in evidence by a party, the adverse SECTION 5.
party may require him to introduce all of it which is relevant to the part
introduced, and any party may introduce any other parts. Section 5. Effect of substitution of parties. – Substitution of parties does not
affect the right to use depositions previously taken; and, when an action has
DEPO MAY BE USED W/O THE DEPONENT PLACED ON THE been dismissed and another action involving the same subject is afterward
brought between the same parties or their representatives or successors in
WITNESS STAND interest, all depositions lawfully taken and duly filed in the former action may
be used in the latter as if originally taken therefor.
Depos may be used w/o the deponent being actually called to the
witness stand by the proponen, under certain conditions and for EFFECTS OF THE SUBSTITUTION OF PARTIES TO A DEPO ALREADY
certain limited puposes, to wit: TAKEN

a. That the witness is dead; a. It does not affect the right to use depos previously taken;
b. That the witness resides at a distance more than 100km and
from the place of trial or hearing or is out of the PH, unless b. When an actio has been dismissed and another action
it appears that his absence was procured by the party involving the same subject is afterward brought between
offering the depo; the same parties or their representatives or successors in
c. That the witness is unable to attend/testify bec of age, interest, all depos lawully taken and duly filed in the
sickness, infirmity, or imprisonment; former action may be used in the latter as if originally
d. That the party offering the depo has been unable to taken therefor.
procure the attendance of the witness by subpoena; or
e. Upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest SECTION 6.
of justice and w/ due regard to the importance of Section 6. Objections to admissibility. – Subject to the provisions of section
presenting the testimony of witness orally in open court, 29 of this Rule, objection may be made at the trial or hearing, to receiving in
to allow the depo to be used. evidence any deposition or part thereof for any reason which would require
the exclusion of the evidence if the witness were then present and testifying.
DEPO AS EVIDENCE BUT NOT A SUBSTITUTE FOR AN ACTUAL
WHEN TO OBJECT ON THE ADMISSIBILITY OF DEPO
TESTIMONY
Subject to the provisions of Sec. 29 of this Rule, objection may be
G.R. – they are not meant to be a substitute for the actual testimony
made on the ff occasions:
in opn court, especially when the deponent is at hand. Any depo
offered during trial to prove the facts stated therein set out, in lieu a. At the trial; or
of actual oral testimony of deponent in court, may be opposed and b. Hearing to receive in evidence any depo or part thereof for
excluded on the ground of hearsay evidence. any reason w/c would require the exclusion of the
evidence if the witness were then present and testifying.
EXC – existence of certain conditions, stated above, is first
satisfactorily established.

ADVANTAGES OF DEPO SECTION 7.


Section 7. Effect of taking depositions. – A party shall not be deemed to make
Jonathan Landoil Intl Co. v. Sps. Mangudadatu a person his own witness for any purpose by taking his deposition.

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EFFECT OF TAKING DEPOS Section 11. Persons before whom depositions may be taken in foreign
countries. – In a foreign state or country, depositions may be taken (a) on
A party shall not be deemed to make a person his own witness for notice before a secretary of embassy or legation, consul general, consul, vice-
consul, or consular agent of the Republic of the Philippines, (b) before such
any purpose by taking his depo.
person or officer as may be appointed by commission or under letters
rogatory; or (c) the person referred to in section 14 hereof.

IF OUTSIDE THE PH – WHO MAY TAKE THE DEPO


SECTION 8.
Section 8. Effect of using depositions. – The introduction in evidence of the In a foreign state/country, depo may be taken:
deposition or any part thereof for any purpose other than that of
contradicting or impeaching the deponent makes the deponent the witness a. On notice before a secretary of embassy or legation,
of the party introducing the deposition, but this shall not apply to the use by
an adverse party of a deposition as described in paragraph (b) of section 4 of consul general, consul, vice-consul, or consular agent of
this Rule. the PH.;
b. Before such person/officer as may be appointed by
EFFECT OF USING DEPOS
commission/under letter rogatory; or
a. The introduction in evidence of the depo/any part thereof c. If the parties so stipulate in writing, depos may be taken
for any purpose other than that of contradicting or before any person authorized to administer oaths, at any
impeaching the deponent make the deponent the witness time/place, in accordance w/ these Rules, and when so
of the party introducing the depo; taken may be used like other depos.
b. This shall ot apply to the use by an adverse party of a
depo as described par. (b) of Sec. 4 of this Rule.
SECTION 12.
Section 12. Commission or letters rogatory. – A commission or letters
rogatory shall be issued only when necessary or convenient, on application
SECTION 9. and notice, and on such terms, and with such direction as are just and
Section 9. Rebutting deposition. – At the trial or hearing any party may rebut appropriate. Officers may be designated in notices or commissions either by
any relevant evidence contained in a deposition whether introduced by him name or descriptive title and letters rogatory may be addressed to the
or by any other party. appropriate judicial authority in the foreign country.

CAN A DEPO BE REBUTTED BY CONTRARY EVIDENCE WHEN CAN LETTERS COMMISSION OR ROGATORY BE ISSUED

By express provision of rule, that at the trial or hearing, any party Shall be issued on the ff instances:
may rebut any relevant evidence contained in a depo whether
introduced by him or any other party. a. Necessary/convenient, on application and notice;
b. On such other terms and w/ such direction as are just and
appropriate;
c. Officers may be designated in notices or commissions
SECTION 10.
either by name/descriptive title; and
Section 10. Persons before whom depositions may be taken within the
Philippines. – Within the Philippines depositions may be taken before any d. Letters rogatory may be addressed to the appropriate
judge, notary public, or the person referred to in section 14 hereof. judicial authority in the foreign country.

SECTION 14. LETTER COMMISSION DEFINED


Section 14. Stipulations regarding taking of depositions. – Within the An instrument issued by a court of justice, or other competent
Philippines depositions may be taken before any judge, notary public, or the
person referred to in section 14 hereof. tribunal to authorize a person to take depos, or do any other act by
authority of such court/tribunal.
IF W/IN THE PH – WHO MAKE TAKE THE DEPO
LETTER ROGATORY DEFINED
Depo may be taken in the PH before:
An instrument whereby a foreign court is informed of the pendency
a. Any judge; of a case and the name of the foreign witness, and is requested to
b. Notary public: or cause their depos to be taken in due course of law for the
c. If the parties so stipulate in writing, depos may be taken furtherance of justice, w/ an offer on the part of the court making
before any person authorized to administer oaths, at any the request, to do the like for the other, in a similar case.
time or place, in accordance w/ these Rules, and when so
taken may be used like other depos. DISTINCTIONS BETWEEN LETTER COMMISSION AND LETTER
ROGATORY

Letter Commission Letter Rogatory


SECTION 11. Addressed to a non-judicial Addressed to a judicial officer of

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foreign officer who will take the a foreign country who will direct c. On the motion of any party upon whom the notice is
depo. the taking of the depo. served, the court may for cause shown enlarge/shorten
Rules applicable are those of the Procedure applciable will that be the time.
requesting court. of the foreign court.
Allowed if the permission of the Allowed if commission was dis-
foreign country is given. allowed by foreign country. SECTION 16.
Leave of court is not necessary. Leave of court is necessary. Section 16. Orders for the protection of parties and deponents. – After notice
is served for taking a deposition by oral examination, upon motion
seasonably made by any party or by the person to be examined and for good
DISTINCTIONS BETWEEN DEPO AND AFFIDAVIT cause shown, the court in which the action is pending may make an order
that the deposition shall not be taken, or that it may be taken only at some
Deposition Affidavit designated place other than that stated in the notice, or that it may be taken
Requires notice to other party. May be taken ex parte. only on written interrogatories, or that certain matters shall not be inquired
into, or that the scope of the examination shall be held with no one present
May be taken in the form of a Being ex parte need not be in
except the parties to the action and their officers or counsel, or that after
question and answer based on such form. being sealed the deposition shall be opened only by order of the court, or
oral examination/written that secret processes, developments, or research need not be disclosed, or
interrogatories before that the parties shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court or the
authorized persons. court may make any other order which justice requires to protect the party
May be used as evidence in a May/may not be used in a or witness from annoyance, embarrassment, or oppression.
pending case. proceeding.
ORDERS THAT MAY BE ISSUED BY COURT FOR THE PROTECTION OF
THE PARTY OR DEPONENT

SECTION 13. The court in w/c the action is pending may issue the ff:
Section 13. Disqualification by interest. – No deposition shall be taken before a. An order that the depo shall not be taken;
a person who is a relative within the sixth degree of consanguinity or affinity,
or employee or counsel of any of the parties, or who is a relative within the b. That it may be taken only at some designated place other
same degree, or employee of such counsel; or who is financially interested in than that state in the notice;
the action. c. That it may be taken only on written interrogatories; or
d. That certain matters shall not be inquired into; or
PERSONS DISQUALIFIED TO TAKE DEPO
e. That the scope of the examination shall be held w/ no on
a. A person who is a relaitve w/in the sixth degree of present except the parties to the action and their
consanguinity/affinity; or officers/counsels; or
b. Employee/counsel of any of the parties; or f. That after being sealed, the depo shall be opened only by
c. A relative w/in the same degree, or employee of such order of the court; or
counsel; or g. The secret process, developments, or research need not
d. Person who is financially interested in the action. be disclosed;
h. That the parties shall simultaneously file specified docs or
infos enclosed in sealed envelopes to be opened as
SECTION 15. directed by the cour; or
Section 15. Deposition upon oral examination; notice; time and place. – A i. The court may make any other order w/c justice requires
party desiring to take the deposition of any person upon oral examination to protect the party or witness from annoyance,
shall give reasonable notice in writing, to every other party to the action. The embarassment, or oppression.
notice shall state the time and place for taking the deposition and the name
and address of each person to be examined, if known, and if the name is not
REQUISITES AND LIMITATIONS ON THE TAKING OF DEPO
known, a general description sufficient to identify him or the particular class
or group to which he belongs. On motion of any party upon whom the notice
is served, the court may for cause shown enlarge or shorten the time.
Requisites:

REQUIREMENTS a. There must be notice; and


b. Order must be for good cause shown.
a. Give reasonable notice in wriing to every other party to
the action; Limitations:
b. Notice shall state the time and place for taking the depo a. Must be relevant;
and the name and address of each person to be examined, b. Must not be privileged;
if known, and if the name is not known, a general c. Must be w/in the bounds of law.
description sufficient to identify him of the particular class
or group to w/c he belongs; While the use at trial is subject to the circumspections looking
toward the use of oral testimony whether practicable.
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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
the examination to cease forthwith or may limit the scope and
manner of the taking of the depo:
SECTION 17.
Section 17. Record of examination, oath; objections. – The officer before a. Examination is conducted in bad faith; or
whom the deposition is to be taken shall put the witness on oath and shall
b. In such manner as unreasoably to annoy, embarrass, or
personally, or by some one acting under his direction and in his presence,
record the testimony of the witness. The testimony shall be taken oppress the deponent or party.
stenographically unless the parties agree otherwise. All objections made at
the time of the examination to the qualifications of the officer taking the EFFECT OF TERMINATION OF EXAMINATION
deposition, or to the manner of talking it, or to the evidence presented, or to
the conduct of any party, and any other objection to the proceedings, shall a. It shall be resumed thereafter only upon the order of the
be noted by the officer upon the deposition. Evidence objected to shall be court in w/c the action is pending;
taken subject to the objections. In lieu of participating in the oral
b. Upon demand of the objecting party or deponent the
examination, parties served with notice of taking a deposition may transmit
written interrogatories to the officers, who shall propound them to the taking of the depo shall be suspended for the time
witness and record the answers verbatim. necessary to make a notice for an order;
c. In granting or refusing such order, the court may impose
DUTIES OF THE OFFICER DURING THE TKING OF DEPO
upon either party or upon the witness the requirement to
The officer before whom the depo is to be taken shall have the ff pay such costs or expenses as the court may deem
duties: reasonable.

a. Put the witness on oath;


b. Shall personally, or by someone acting under his direction SECTION 19.
and in his presence, record the testimony of the witness;
Section 19. Submission to witness; changes; signing. – When the testimony is
c. Testimony shall be taken stenographically unless the fully transcribed, the deposition shall be submitted to the witness for
parties agree ow; examination and shall be read to or by him, unless such examination and
d. All objections made at the time of the examination to the reading are waived by the witness and by the parties. Any changes in form or
substance which the witness desires to make shall be entered upon the
qualifications of the officer taking the depo, or to the deposition by the officer with a statement of the reasons given by the
manner of taking it, or to the evidence presented, or to witness for making them. The deposition shall then be signed by the witness,
the conduct of any party, and other objection to the unless the parties by stipulation waive the signing or the witness is ill or
cannot be found or refuses to sign. If the deposition is not signed by the
proceedings, shall be noted by the officer upon the depo; witness, the officer shall sign it and state on the record the fact of the waiver
e. Evidence objected to shall be taken subject to the or of the illness or absence of the witness or the fact of the refusal to sign
objections; together with the reason be given therefor, if any, and the deposition may
then be used as fully as though signed, unless on a motion to suppress under
f. In lieu of participating in the oral examination, parties
section 29 (f) of this Rule, the court holds that the reasons given for the
served w/ notice of taking a depo may transmit written refusal to sign require rejection of the deposition in whole or in part.
interrogatories to the officers, who shall propound them
to the witness and record the answers verbatim. DUTIES OF THE OFFICER AFTER TAKING OF THE DEPO

When fully transcribed, depo shall be:

SECTION 18. a. Submitted to the witness for examination;


Section 18. Motion to terminate or limit examination. – At any time during b. It shall be read to or by him, unless such examination and
the taking of the deposition, on motion or petition of any party or of the reading are waived by the witness and by the parties;
deponent, and upon a showing that the examination is being conducted in
c. Any changes in form/substance w/c the witness desires to
bad faith or in such manner as unreasonably to annoy, embarrass, or oppress
the deponent or party, the court in which the action is pending or the make shall be entered upon the depo by the officer w/ a
Regional Trial Court of the place where the deposition is being taken may statement of the reasons given by the witness for making
order the officer conducting the examination to cease forthwith from taking them;
the deposition, or may limit the scope and manner of the taking of the
deposition, as provided in section 16 of this Rule. If the order made d. The depo shall then be signed by the witness, unless the
terminates the examination, it shall be resumed thereafter only upon the parties by stipulation waive the signing or the witness is ill
order of the court in which the action is pending. Upon demand of the or cannot be found or refuses to sign;
objecting party or deponent, the taking of the deposition shall be suspended
e. If the depo is not signed, officer shall sign it and state on
for the time necessary to make a notice for an order. In granting or refusing
such order, the court may impose upon either party or upon the witness the the record the fact of non-signing by the witness.
requirement to pay such costs or expenses as the court may deem
reasonable.

WHEN TO FILE MOTION TO TERMINATE/LIMIT EXAMINATION SECTION 20.


Section 20. Certification, and filing by officer. – The officer shall certify on the
At any time during the taking of the depo, on motion/petition of any deposition that the witness was duly sworn to by him and that the deposition
party or of the deponent, the court may order the officer conducting is a true record of the testimony given by the witness. He shall then securely
seal the deposition in an envelope indorsed with the title of the action and

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
marked "Deposition of (here insert the name of witness)" and shall promptly
file it with the court in which the action is pending or send it by registered
mail to the clerk thereof for filing. SECTION 25.
Section 25. Deposition upon written interrogatories; service of notice and of
DUTIES OF THE OFFICER AFTER SIGNING OF THE DEPO interrogatories. – A party desiring to take the deposition of any person upon
written interrogatories shall serve them upon every other party with a notice
a. Certify on the depo that the witness was duly sworn to by stating the name and address of the person who is to answer them and the
name or descriptive title and address of the officer before whom the
him; and deposition is to be taken. Within ten (10) days thereafter, a party so served
b. That the depo is a true record of the testimony given by may serve cross-interrogatories upon the party proposing to take the
the witness; deposition. Within five (5) days thereafter, the latter may serve re-direct
interrogatories upon a party who has served cross-interrogatories. Within
c. Shall then securely seal the depo in an envelope indorsed
three (3) days after being served with re-direct interrogatories, a party may
w/ the title of the action and marked “ Deposition of name serve recross-interrogatories upon the party proposing to take the
of witness”; and deposition.
d. Shall promptly file it w/ the court in w/c the action is
DEPO BY WRITTEN INTERROGATORIES
pending or send it by registered mail to the check thereof
for filing. The party shall:

a. Serve them upon every other party w/ a notice stating the


SECTION 21. name and address of the person who is to answer them
Section 21. Notice of filing. – The officer taking the deposition shall give
and the name or descriptive title and address of the officer
prompt notice of its filing to all the parties. before whom the depo is to be taken;
b. w/in 10 days thereafter, a party so served may serve cross-
SECTION 22. interrogatories upon the party proposing to take the
Section 22. Furnishing copies. – Upon payment of reasonable charges depo;
therefor, the officer shall furnish a copy of the deposition to any party or to c. w/in 5 days therafter, the latter may serve re-direct
the deponent.
interrogatories upon a party who has served cross-in;
d. w/in 3 days thereafter, a party may serve recross-
interrogatories upon the parties proposing to take the
SECTION 23. depo.
Section 23. Failure to attend of party giving notice. – If the party giving the
notice of the taking of a deposition fails to attend and proceed therewith and
another attends in person or by counsel pursuant to the notice, the court
may order the party giving the notice to pay such other party the amount of SECTION 26.
the reasonable expenses incurred by him and his counsel in so attending,
Section 26. Officers to take responses and prepare record. – A copy of the
including reasonable attorney's fees.
notice and copies of all interrogatories served shall be delivered by the party
taking the deposition to the officer designated in the notice, who shall
EFFECT OF FAILURE BY THE PARTY GIVING NOTICE TO ATTEND THE proceed promptly, in the manner provided by sections 17, 19 and 20 of this
TAKING OF DEPO Rule, to take the testimony of the witness in response to the interrogatories
and to prepare, certify, and file or mail the deposition, attaching thereto the
Court may order such party to pay the other party the amount of the copy of the notice and the interrogatories received by him.
reasonable expenses incurred by him and his counsel in so
DUTIES OF THE OFFICER AFTER SEVICE OF THE NOTICE
attending, including reasonable atty’s fees.
a. proceed promptly, in the manner provided by Sec. 17, 19,
and 20 of this Rule;
SECTION 24. b. take the testimony of the witness in response to the
Section 24. Failure of party giving notice to serve subpoena. – If the party interrogatories; and
giving the notice of the taking of a deposition of a witness fails to serve a c. prepare, certify, and file or mail the depo, attaching
subpoena upon him and the witness because of such failure does not attend,
and if another party attends in person or by counsel because he expects the thereto the copy of the notice and the interrogatories
deposition of that witness to be taken, the court may order the party giving received by him.
the notice to pay to such other party the amount of the reasonable expenses
incurred by him and his counsel in so attending, including reasonable
attorney's fees.

FAILURE OF THE PARTY GIVING NOTICE TO SERVE SUBPOENA


SECTION 27.
Section 27. Notice of filing and furnishing copies. – When a deposition upon
Court may order such party to pay the other party the amount of the interrogatories is filed, the officer taking it shall promptly give notice thereof
to all the parties, and may furnish copies to them or to the deponent upon
reasonable expenses incurred by him and his counsel in so payment of reasonable charges therefor.
attending, including reasonable atty’s fees.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
DUTIES OF THE OFFICER AFTER BEING SERVED W/ NOTICE AND thereof is made with reasonable promptness after such defect is, or
COPY OF THE INTERROGATORIES with due diligence might have been, ascertained.

a. promptly give notice thereof to all parties; and


b. may furnish copiew to them or to the deponent upon
RULE 24
payment of reasonable charges therefor.
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

SECTION 28. SECTION 1.


Section 28. Order for the protection of parties and deponents. – After the Section 1. Depositions before action; petition. – A person who desires to
service of the interrogatories and prior to the taking of the testimony of the perpetuate his own testimony or that of another person regarding any
deponent, the court in which the action is pending, on motion promptly matter that may be cognizable in any court of the Philippines may file a
made by a party or a deponent, and for good cause shown, may make any verified petition in the court of the place of the residence of any expected
order specified in sections 15, 16 and 18 of this Rule which is appropriate and adverse party.
just or an order that the deposition shall not be taken before the officer
designated in the notice or that it shall not be taken except upon oral HOW CAN IT BE COMMENECED
examination.
A person who desires to perpetuate his own testimony or of that of
ORDER THAT MAY BE ISSUED BY THE COURT FOR THE PROTECTION another person may file a petition regarding:
OF THE PARTIES AND DEPONENTS
a. Any matter that may be cognizable in any court of the PH;
The court, on motion promptly made by a party or a deponent, and and
for good cause shown, may make any order specified ins Secs. 15, 16 b. In the court of the place of the residence of any expected
and 18 of this Rule w/c is appropriate and just or an order that: adverse party.

a. the depo shall not be taken before the officer designated


in the notice; or
SECTION 2.
b. that it shall not be taken except upon oral examination.
Section 2. Contents of petition. – The petition shall be entitled in the name of
the petitioner and shall show: (a) that the petitioner expects to be a party to
an action in a court of the Philippines but is presently unable to bring it or
SECTION 29. cause it to be brought; (b) the subject matter of the expected action and his
interest therein; (c) the facts which he desires to establish by the proposed
Section 29. Effect of errors and irregularities in depositions. – testimony and his reasons for desiring to perpetuate it; (d) the names or a
(a) As to notice. — All errors and irregularities in the notice for taking a description of the persons he expects will be adverse parties and their
deposition are waived unless written objection is promptly served upon addresses so far as known; and (e) the names and addresses of the persons
the party giving the notice. to be examined and the substance of the testimony which he expects to elicit
(b) As to disqualification of officer. — Objection to taking a deposition from each, and shall ask for an order authorizing the petitioner to take the
because of disqualification of the officer before whom it is to be taken depositions of the persons to be examined named in the petition for the
purpose of perpetuating their testimony.
is waived unless made before the taking of the deposition begins or as
soon thereafter as the disqualification becomes known or could be
discovered with reasonable diligence. CONTENTS OF THE PETITION
(c) As to competency or relevancy of evidence. — Objections to the
competency of witness or the competency, relevancy, or materiality of a. that the petitioner expects to be a party to an action in a
testimony are not waived by failure to make them before or during the court of the Philippines but is presently unable to bring it
taking of the deposition, unless the ground, of the objection is one or cause it to be brought;
which might have been obviated or removed if presented at that time.
(d) As to oral examination and other particulars. — Errors and irregularities b. the subject matter of the expected action and his interest
occurring at the oral examination in the manner of taking the therein;
deposition in the form of the questions or answers, in the oath or c. the facts which he desires to establish by the proposed
affirmation, or in the conduct of the parties and errors of any kind
which might be obviated, removed, or cured if promptly prosecuted,
testimony and his reasons for desiring to perpetuate it;
are waived unless reasonable objection thereto is made at the taking of d. the names or a description of the persons he expects will
the deposition. be adverse parties and their addresses so far as known;
(e) As to form of written interrogatories. — Objections to the form of
and
written interrogatories submitted under sections 25 and 26 of this Rule
are waived unless served in writing upon the party propounding them e. the names and addresses of the persons to be examined
within the time allowed for serving succeeding cross or other and the substance of the testimony which he expects to
interrogatories and within three (3) days after service of the last elicit from each, and shall ask for an order authorizing the
interrogatories authorized.
(f) As to manner of preparation. — Errors and irregularities in the manner petitioner to take the depositions of the persons to be
in which the testimony is transcribed or the deposition is prepared, examined named in the petition for the purpose of
signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt perpetuating their testimony.
with by the officer under sections 17, 19, 20 and 26 of this Rule are
waived unless a motion to suppress the deposition or some part

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
SECTION 3. If an appeal has been taken from a judgment of a court, including
Section 3. Notice and service. – The petitioner shall serve a notice upon each
the CA in proper cases, or before the taking of an appeal if the time
person named in the petition as an expected adverse party therefor has not expired, the court in w/c the judgment was
rendered may allow the taking of the depo of witnesses to
DUTIES OF THE PETITIONER AFTER FILING perpetaute their testimony for use in the event of further
proceedings in the said court.
a. serve a notice upon each person named in the petition as
an expected adverse party; REQUIREMENTS
b. serve a copy of the petition, stating that the petitioner will
apply to the court, at a time and place named thereing, for a. make a motion in the said court for leave to take the depo;
the order described in the petition. and
b. notice and service thereof as if the action was pending
therein.
SECTION 4.
CONTENTS OF THE MOTION FOR LEAVE
Section 4. Notice and service. – The petitioner shall serve a notice upon each
person named in the petition as an expected adverse party Motion shall state the ff:
ACTIONS OF THE COURT ON THE PETITION a. the names and addresses of the persons to be examined
and the substance of the testimony w/c he expects to elicit
If the court is satisfied that the perpetuation of the testimony may
prevent a failure or delay justice, it shall: from each; and
b. the reason for perpetuating their testimony.
a. make an order designating/describing the person whose
ACTIONS OF THE COURT ON THE MOTION
depo may be taken and specifying the subj matter of the
examination; If the court finds that the perpetuation of the testimony is proper to
b. whether the depo shall be taken upon oral examination or avoid a failure/delay of justice, it may:
written interrogatories;
c. the depo may then be taken in accordance w/ Rule 23 a. make an order allwoing the depo to be taken; and
before hearing. b. the depos may be taken and used in the same manner and
under the same conditions as are prescribed in these Rules
for depos taken in pending action.
SECTION 5.
Section 5. Notice and service. – The petitioner shall serve a notice upon each
person named in the petition as an expected adverse party RULE 25

INTERROGATORIES TO PARTIES
SECTION 6. SECTION 1.
Section 6. Notice and service. – The petitioner shall serve a notice upon each Section 1. Interrogatories to parties; service thereof. – Under the same
person named in the petition as an expected adverse party conditions specified in section 1 of Rule 23, any party desiring to elicit
material and relevant facts from any adverse parties shall file and serve upon
USAGES OF DEPO the latter written interrogatories to be answered by the party served or, if
the party served is a public or private corporation or a partnership or
If a depo to perpetuate testimony is taken under this Rule, or if, association, by any officer thereof competent to testify in its behalf.
although not so taken:
INTERROGATORY DEFINED
a. would be admissible in evidence;
b. may be used in any action involving the same subj matter Questions in writing exhibited, that is addressed, to a party to an
subsequently brought in accordance w/ the provisions of action by an adverse party, before trial of the action, and answered
Secs. 4 and 5 of Rule 23. in writing under oath.

HOW INTERROGATORIES ARE MADE

SECTION 7. Under the same provisions specified in Sec. 1 of Rule 23, any party
Section 7. Notice and service. – The petitioner shall serve a notice upon each desiring to elicit material and relevant facts from any adverse parties
person named in the petition as an expected adverse party shall:

HOW IS DEPO PENDING APPEAL BEING MADE a. file and serve upon the latter written interrogatories to be
answered by the party served; or

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado

b. if the party served is public/private corp or a partnership SECTION 5.


or assoc., by any officer thereof competent to testify in its Section 5. Scope and use of interrogatories. – Interrogatories may relate to
behalf. any matters that can be inquired into under section 2 of Rule 23, and the
answers may be used for the same purposes provided in section 4 of the
same Rule.
REMEDY IN CASE OF DENIAL
SCOPE AND USE OF INTERROGATORIES
Trial court’s order of denial is interlocutory in nature. The proper
remedy is in such a case is appeal from the adverse judgment where a. any matters that can be inquired into under Sec. 2 of Rule
incorporated in said appeal are the grounds for assailing the 23; and
interlocutory order. b. the answers may be used for the same purposes provided
in Sec. 4 of the same Rule.

SECTION 2.
Section 2. Answer to interrogatories. – The interrogatories shall be answered SECTION 6.
fully in writing and shall be signed and sworn to by the person making them.
Section 6. Effect of failure to serve written interrogatories. – Unless
The party upon whom the interrogatories have been served shall file and
thereafter allowed by the court for good cause shown and to prevent a
serve a copy of the answers on the party submitting the interrogatories
failure of justice, a party not served with written interrogatories may not be
within fifteen (15) days after service thereof unless the court on motion and
compelled by the adverse party to give testimony in open court, or to give a
for good cause shown, extends or shortens the time.
deposition pending appeal.
REQUIREMENTS IN CASE OF A RESPONSE TO INTERROGATORIES
EFFECT OF FAILURE TO SERVE INTERROGATORIES
a. answered fully in writing; and
G.R.: a party not served w/ written interrogatories may not be:
b. shall be signed and sworn to by the person making them.
a. compelled by the adverse party to give testimony in open
WHEN TO FILE ANSWER TO INTERROGATORIES
court; or
G.R. – file and serve a copy of the answers on the party submitting b. to give a depo pending appeal.
the interrogatories w/in 15 days after service thereof.
EXC: unless thereafter allowed by the cour for good cause shown
EXC – the court, on motion and for good cause shown, extends or and to prevent a failure of justice.
shortens the time.
N.B. – to prevent fishing expeditions and needless delays, protects
the adverse party from unwarranted surprises/harassment

SECTION 3. DISTINCITON BETWEEN WRITTEN INTERROGATORIES UNDER RULE


Section 3. Objections to interrogatories. – Objections to any interrogatories 23 AND RULE 25
may be presented to the court within ten (10) days after service thereof, with
notice as in case of a motion; and answers shall be deferred until the Rule 23 Rule 25
objections are resolved, which shall be at as early a time as is practicable. Deponent is a 3rd P. not Directly served to the adverse
WHEN TO FILE OBJECTIONS TO INTERROGATORIES necessarily a party. party/
It is required that it will be taken No officer to take depo is
W/in 10 days after service thereof, w/in notice as in case of a by a depo officer. required.
motion.
DISTINCTION BETWEEN WRITTEN INTERROGATORIES AND BILL OF
EFFECT OF THE FILING OF OBJECTIONS
PARTICULARS
Filing of the answers shall be deferred until the objections are
Written Interrogatories Bill of Particulars
resolved, w/c shall be at as early a time as practicable.
Seek to disclose all materials Intended for the purpose of
and relevant facts from a party. clarifying ambiguities in a
pleading or to state w/ sufficient
SECTION 4.
definiteness the allegations in
Section 4. Number of interrogatories. – No party may, without leave of court,
the pleading.
serve more than one set of interrogatories to be answered by the same
party. Not directed to a pleading, but Directed to the pleadings and
to the material & relevant facts ambiguous allegations.
w/in the knowledge of the
adverse party.

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RULE 26 ACTIONS TO BE DONE BY A PARTY TO WHOM WRITTEN REQUEST
FOR ADMISSION IS SERVED
ADMISSION BY ADVERSE PARTY
G.R. – each of the matters of w/c an admission is requested shall be
SECTION 1. deemed admitted.
Section 1. Request for admission. – At any time after issues have been joined,
a party may file and serve upon any other party may file and serve upon any EXC – w/in a period designated in the request, the party served will:
other party a written request for the admission by the latter of the
genuineness of any material and relevant document described in and a. file and serve upon the party requesting the admission a
exhibited with the request or of the truth of any material and relevant sworn statement either denying specifically the matters of
matter of fact set forth in the request. Copies of the documents shall be
reasons why he cannot thruthfully either admit or deny
delivered with the request unless copy have already been furnished.
those matters w/c shall not be less than 15 days after
WHAT IS AN ADMISSION service thereof; or
b. w/in such further ime as the court may allow on motion.
Any statement of fact made by party against his interest or
unfavorable to the conlusion for w/c he contends or is inconsistent RULE IN CASE OF THE FILING OF OBJECTION
w/ the facts alleged by him.
Objections to any request for admission shall be:
REQUIREMENTS FOR THE ADMISSION TO BE ADMISSIBLE
a. submitted to the court by the party requested w/in the
a. involve matters of fact, and not of law; period for and prior to the filing of his sworn statement as
b. be categorical and definite; contemplated in the preceding paragraph: and
c. be knowingly and voluntarily made; and b. his compliance therewith shall be deferred until such
d. be adversed to the admitter’s interests, ow it would be objections are resolved, w/c resolution shall be made as
self-serving and inadmissible. early as practicable.

HOW REQUEST FOR ADMISSION BE MADE IMPLIED ADMISSION RULE

At any time after issues have been joined, a party may file and serve The silence of the defendant on the plaintiff’s request for admission
upon any other party a written request for: amounts to implied acceptance of the facts set forth therein w/ the
effect that plaintiff’s slaim stood undisputed.
a. admission by the latter of the genuineness of any material
and relevant docs described in and exhibited w/ the LIMITATIONS ON THE IMPLIED ADMISSION RULE
request;
b. truth of any material and relevant matter of fact set forth The redundant and unnecessarily vexatious nature of petitioner’s
in the request; or request for admission rendered it ineffectual, futile, and irrelevnt so
as to proscribe the operation of the implied admission rule.
c. copies of docs shall be delivered w/ the request unless
copies have already been furnished. REMEDY OF THE PERSON MAKING AN IMPLIED ADMISSION
PURPOSE OF ADMISSION A party making an implied admission can filed before the court a
Motion to be Relieved of implied admission.
While the admission is admissible in evidence, its probative value is
to be determined from the whole statement and others intimately
related or connected therewith as an integrated unit.
SECTION 3.
Section 3. Effect of admission. – Any admission made by a party pursuant to
such request is for the purpose of the pending action only and shall not
SECTION 2. constitute an admission by him for any other purpose nor may the same be
Section 2. Implied admission. – Each of the matters of which an admission is used against him in any other proceeding.
requested shall be deemed admitted unless, within a period designated in
the request, which shall not be less than fifteen (15) days after service EFFECTS OF ADMISSIONS
thereof, or within such further time as the court may allow on motion, the
party to whom the request is directed files and serves upon the party Any admission made by a party pursuant to such request shall have
requesting the admission a sworn statement either denying specifically the
the ff effects:
matters of which an admission is requested or setting forth in detail the
reasons why he cannot truthfully either admit or deny those matters.
a. it is only or the purpose of the pending action;
Objections to any request for admission shall be submitted to the court by b. it shall not constitute an admission by him for any other
the party requested within the period for and prior to the filing of his sworn purposel
statement as contemplated in the preceding paragraph and his compliance
therewith shall be deferred until such objections are resolved, which c. nor said admission be used against him in any other
resolution shall be made as early as practicable. proceeding.

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COURSES OF ACTION OF THE COURT ON THE MOTION

SECTION 4. a. Order any party to produce and permit the inspection and
Section 4. Withdrawal. – The court may allow the party making an admission copying or photographing, by or on behalf of the moving
under the Rule, whether express or implied, to withdraw or amend it upon
party, of any designated docs, papers, books, accounts,
such terms as may be just.
letters, photographs, objects or tangible things, not
RULE ON THE WITHDRAWAL OF ADMISSION privileged, w/c constitute evidence or material to any
matter involved in the action and w/c are in his
The court may allow the party making an admission under this Rule, possession, custody or control; or
whether express or implied to: b. Order any party to permit entry upon designated land or
a. Withdraw such admission; or other property in his possession or control for the purpose
b. Amend it upon such terms as may be just. of inspecting, measuring, surveying, or photographing the
property or any designated relevant object or operation
thereon. The order shall specify the time, place and
manner of making the inspection and taking copies and
SECTION 5.
photographs, and may prescribe such terms and
Section 5. Effect of failure to file and serve request for admission. – Unless
otherwise allowed by the court for good cause shown and to prevent a conditions as are just.
failure of justice a party who fails to file and serve a request for admission on
the adverse party of material and relevant facts at issue which are, or ought PURPOSE OF PRODUCTION AND INSPECTION OF DOCS
to be, within the personal knowledge of the latter, shall not be permitted to
present evidence on such facts. This is to enable not only the parties, but also the court to discover
all the relevant and material facts in connection w/ the case pending
EFFECTS IN CASE OF FAILURE TO FILE AND SERVE REQUEST FOR before it.
ADMISSION
Generally, the scope of discovery is to be liberally construed so as to
G.R. – a party who fails to file and serve a request for admission on provide the litigants w/ information essential to the fair and
the adverse party of material and relevant facts at issue w/c are, or amicable settlement or expeditious trial of the case.
ought to be, w/in the personal knowledge of the latter, shall not be
permitted to present evidence on such facts. GRANT OF MOTION IS DISCRETIONARY

EXC – unless ow allowed by the court for good cause shown and to Although the grant of motion for production of doc is admittedly
prevent a failure of justice. discretionary on the part of the trial court judge bec to do so would
bar access to relevant evidence that may be used by a party-litigant
and hence, impair his fundamental right to due process.

RULE 27 DOCS, PAPERS, ETC. WHICH ARE PRIVILEGED IN CHARACTER

PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS a. Between husband and wife;


b. Atty and client;
SECTION 1. c. Physician and patient;
Section 1. Motion for production or inspection; order. – Upon motion of any d. Priest and penitent;
party showing good cause therefor, the court in which an action is pending
may (a) order any party to produce and permit the inspection and copying or e. Pub officers and pub interest;
photographing, by or on behalf of the moving party, of any designated f. Editors may not be compelled to disclose source of
documents, papers, books, accounts, letters, photographs, objects or published news;
tangible things, not privileged, which constitute or contain evidence material
to any matter involved in the action and which are in his possession, custody
g. Whom voters voted;
or control, or (b) order any party to permit entry upon designated land or h. Trade secrets;
other property in his possession or control for the purpose of inspecting, i. Information contained in tax census returns; and
measuring, surveying, or photographing the property or any designated
j. Bank deposits.
relevant object or operation thereon. The order shall specify the time, place
and manner of making the inspection and taking copies and photographs,
and may prescribe such terms and conditions as are just.
LIMITATIONS ON THE REMEDY

TWO MOTIONS AVAILABLE UNDER RULE 27 Should be limited to those docs designated w/ sufficient particularly
in the motion, such that the adverse party can easily identify the
a. Motion for production and inspection of documents and docs he is required to produce.
things; and
b. Motion to allow entry upon a designated place for DISTINCTION BETWEEN RULE 27 AND RULE 21
purposes of inspection, measuring, and surveying of
Rule 27 Rule 21
property.

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
It is a mode of discovery. Writ or a pocess of compelling SECTION 3.
production of evidence. Section 3. Report of findings. – If requested by the party examined, the party
Directed to a party litigant. Directed against any person w/c causing the examination to be made shall deliver to him a copy of a detailed
includes litigants. written report of the examining physician setting out his findings and
conclusions. After such request and delivery, the party causing the
Can be availed of by motion. By means of a request w/c is examination to be made shall be entitled upon request to receive from the
issued ex-parte. party examined a like report of any examination, previously or thereafter
made, of the same mental or physical condition. If the party examined
refuses to deliver such report, the court on motion and notice may make an
DISTINCTION BETWEEN RULE 27 AND SEC. 3(B), RULE 130
order requiring delivery on such terms as are just, and if a physician fails or
refuses to make such a report the court may exclude his testimony if offered
Rule 27 Sec. 3(B), Rule 130 at the trial.
It is a mode of discovery. It is an exception to the Best
Evidence Rule. RULES ON THE FINDINGS OF THE PHYSICIAN
Availed of through motion. It can be doen by notice.
a. If requested by the party examined, the party causing the
Movant has no prior knowledge Has knowledge of the contents
examination to be made shall deliver to him a copy of a
on the contents of the docs to of the docs to be produced.
detailed written report of the examining physician setting
be produced.
out his findings and conclusions; and
Purpose is to obtain full Purpose is to present secondary b. After such request and delivery, the party causing the
knowledge and facts from the evidence for failure of the examination to be made shall be entitled upon request to
adverse party relevant to the adverse party to produce the receive from the party examined a like report of any
issue to the case. orig despite notice. examination, previously or thereafter made, of the same
mental or physical condition.

EFFECTS IN CASE OF REFUSAL TO DELIVER REPORT OF THE


EXAMINATION
RULE 28
The court on motion and notice make an order:
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
a. Requiring delivery on such terms as are just; and
SECTION 1. b. If a physician fails or refuses to make such a report, the
Section 1. When examination may be ordered. – In an action in which the court may exclude his testimony if offered at the trial.
mental or physical condition of a party is in controversy, the court in which
the action is pending may in its discretion order him to submit to a physical
or mental examination by a physician.
SECTION 4.
WHEN CAN AN EXAMINATION BE ORDERED BY THE COURT
Section 4. Waiver of privilege. – By requesting and obtaining a report of the
examination so ordered or by taking the deposition of the examiner, the
The court in w/c the action is pending may in its discretion order him
party examined waives any privilege he may have in that action or any other
to submit to a physical/mental examination by a physician. involving the same controversy, regarding the testimony of every other
person who has examined or may thereafter examine him in respect of the
same mental or physical examination.

SECTION 2. EFFECT OF SUBMISSION TO EXAMINATION BY THE PARTY


Section 2. Order for examination. – The order for examination may be made
only on motion for good cause shown and upon notice to the party to be By requesting and obtaining a report of the examination so ordered
examined and to all other parties, and shall specify the time, place, manner, or by taking the deposition of the examiner:
conditions and scope of the examination and the person or persons by whom
it is to be made.
a. the party examined waives any privilege he may have in
REQUIREMENTS FOR THE ISSUANCE OF AN ORDER OF that action; or
EXAMINATION b. he also waived any privilege in any other involving the
same controversy, regarding the testimony of every other
a. On the motion for good case shown; person who has examined or may thereafter examine him
b. Upon notice to the party to be examined and to all other in respect of the same mental or physical examination.
parties; and
c. It shall specify the time, place, manner, conditions, and
scope of the examination and the person or persons by
RULE 29
whom it is to be made.
REFUSAL TO COMPLY WITH MODES OF DISCOVERY

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CIVIL PROCEDURE Williard B. Riano | Ferdinand A. Tan | Florenz D. Regalado
Section 4. Expenses on refusal to admit. – If a party after being served with a
SECTION 1.
request under Rule 26 to admit the genuineness of any document or the
Section 1. Refusal to answer. – If a party or other deponent refuses to truth of any matter of fact serves a sworn denial thereof and if the party
answer any question upon oral examination, the examination may be requesting the admissions thereafter proves the genuineness of such
completed on other matters or adjourned as the proponent of the question document or the truth of any such matter of fact, he may apply to the court
may prefer. The proponent may thereafter apply to the proper court of the for an order requiring the other party to pay him the reasonable expenses
place where the deposition is being taken, for an order to compel an answer. incurred in making such proof, including attorney's fees. Unless the court
The same procedure may be availed of when a party or a witness refuses to finds that there were good reasons for the denial or that admissions sought
answer any interrogatory submitted under Rules 23 or 25. were of no substantial importance, such order shall be issued.

If the application is granted, the court shall require the refusing


party or deponent to answer the question or interrogatory and if it
also finds that the refusal to answer was without substantial SECTION 5.
justification, it may require the refusing party or deponent or the Section 5. Failure of party to attend or serve answers. – If a party or an
counsel advising the refusal, or both of them, to pay the proponent officer or managing agent of a party wilfully fails to appear before the officer
the amount of the reasonable expenses incurred in obtaining the who is to take his deposition, after being served with a proper notice, or fails
order, including attorney's fees. to serve answers to interrogatories submitted under Rule 25 after proper
service of such interrogatories, the court on motion and notice, may strike
If the application is denied and the court finds that it was filed out all or any part of any pleading of that party, or dismiss the action or
without substantial justification, the court may require the proceeding or any part thereof, or enter a judgment by default against that
proponent or the counsel advising the filing of the application, or party, and in its discretion, order him to pay reasonable expenses incurred by
the other, including attorney's fees.
both of them, to pay to the refusing party or deponent the amount
of the reasonable expenses incurred in opposing the application,
including attorney's fees.

SECTION 6.
Section 6. Expenses against the Republic of the Philippines. – Expenses and
SECTION 2. attorney's fees are not to be imposed upon the Republic of the Philippines
Section 2. Contempt of court. – If a party or other witness refuses to be under this Rule.
sworn or refuses to answer any question after being directed to do so by the
court of the place in which the deposition is being taken, the refusal may be
considered a contempt of that court.

RULE 36
SECTION 3.
Section 3. Other consequences. – If any party or an officer or managing agent JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF
of a party refuses to obey an order made under section 1 of this Rule
requiring him to answer designated questions, or an order under Rule 27 to
SECTION 1.
produce any document or other thing for inspection, copying, or
photographing or to permit it to be done, or to permit entry upon land or Section 1. Rendition of judgments and final orders. – A judgment or final
other property or an order made under Rule 28 requiring him to submit to a order determining the merits of the case shall be in writing personally and
physical or mental examination, the court may make such orders in regard to directly prepared by the judge, stating clearly and distinctly the facts and the
the refusal as are just, and among others the following: law on which it is based, signed by him, and filed with the clerk of the court.

(a) An order that the matters regarding which the questions were asked, or JUDGMENT DEFINED
the character or description of the thing or land, or the contents of the
paper, or the physical or mental condition of the party, or any other It is the final ruling by a court of competent juris regarding the rights
designated facts shall be taken to be established for the purposes of
or other matters submitted to it in action or proceeding.
the action in accordance with the claim of the party obtaining the
order;
(b) An order refusing to allow the disobedient party to support or oppose
KINDS OF JUDGMENT
designated claims or defenses or prohibiting him from introducing in
evidence designated documents or things or items of testimony, or a. Judgment upon a compromise;
from introducing evidence of physical or mental condition; b. Judgment upon confession;
(c) An order striking out pleadings or parts thereof, or staying further c. Judgment upon the merits;
proceedings until the order is obeyed, or dismissing the action or
d. Clarificatory judgment;
proceeding or any part thereof, or rendering a judgment by default
against the disobedient party; and e. Judgment nunc pro tunc;
(d) In lieu of any of the foregoing orders or in addition thereto, an order f. Judgment sin perjuicio;
directing the arrest of any party or agent of a party for disobeying any
g. Judgment by default (Sec. 3, Rule 9, ROC);
of such orders except an order to submit to a physical or mental
examination. h. Judgment on the pleadings (Rule 34. ROC);
i. Summary judgment (Sec. 35, ROC);
j. Several judgment (Sec 4, Rule 36, ROC);
SECTION 4. k. Separate Judgment (Sec. 5, Rule 36, ROC);
l. Special Judgment (Sec. 11, Rule 39, ROC);

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m. Judgment for specific acts (Sec. 10, Rule 39, ROC); JUDGMENT NUNC PRO TUNC (“NOW FOR THEN”)
n. Judgment on demurrer to evidence (Rule 33);
o. Conditional judgment; The object of such judgment is not the rendering of a new judgment
p. Final judgment (Sec. 47, Rule 39, ROC); and the acertainment and determination of new rights, but is one
q. Final and executory judgment; placing in proper form on the record, the judgment that had been
r. Void judgment; previously rendered, to make it speak the truth, so as to make it
s. Amended and clarified judgment; show what the judicial action really was.
t. Supplemental judgment;
u. Amended judgment v. supplemental judgment; OFFICE OF A NUNC PRO TUNC JUDGMENT
v. Alternative judgment;
w. Deficiency judgment; The office is to record some act of the court at a former time w/c
x. Declaratory judgment; was not then carried into the record, and the power of a court to
y. Null and void judgment. make such entries is restricted to placing upon the record evidence
of judicial action w/c has been actually taken.
JUDGMENT UPON COMPROMISE
JUDGMENT SIN PERJUICIO
a contract whereby the parties, by making reciprocal concessions
avoid a litigation or put an end to one already commenced. A judgment rendered by the court w/o prejudice to the refiling of
the case.
REQUISITES
JUDGMENT BY DEFAULT (SEC. 3, RULE, ROC)
a. Consent;
b. Object certain; A judgment against a defendant for his failure to file an answer.
c. Cause of the obli.
EFFECT OF JUDGMENT BY DEFAULT
N.B. – conditions must not be contrary to law, morals, good
customs, public policy and public order. Ow, it poduces no legal Presentation of the plaintiff’s evidence ex parte, and award shall not
effect. exceed the amount or be different from the kind of prayer that the
plaintiff complained as the facts and evidence so warrant.
EFFECT OF JUDICIAL COMPROMISE
SUMMARY JUDGMENT (RULE 35)
Judicial compromise – a compromise agreement intended to resolve
a matter already under litigation. A procedural device resorted to in order to avoid long drawn out
litigations and useless delays where the pleadings on file show that
Having judicial mandate and entered as its determination of the there are no genuine issues of fact to be tried.
controversy, such compromise has the force and effect of a
judgment. It is immediately executory. Genuine issue – issue of fact w/c require the presentation of
evidence as distinguished from a sham, fictitious, contrived or false
JUDGMENT BY CONFESSION claim.

It is an affirmative and voluntary act of the defendant himself. Here, SEVERAL JUDGMENT (SEC. 4, RULE 36, ROC)
the court exercises a certain, amount of judgment, as wll as
equitable juris over their subsequent status. A judgment rendered by court whenever proper in an action against
several defendants against one or more of them, leaving the action
JUDGMENT UPON THE MERITS to proceed against the others.

When it amounts to a legal determination of the respective rights SEPARATE JUDGMENT (SEC. 5, RULE 36)
and duties of the parties based upon the disclosed facts.
It is a judgment rendered by the court when more than one claim for
CLARIFICATORY JUDGMENT relief is presented in an action at any stage, upon a determination of
the issues material to a particular claim and all cc arising out of the
Judgment w/c is difficult to execute and comply bec of ambiguity in trans or occurrence w/c is the subj matter of the claim, may render
its terms, the party may file a motion for clarificatory jdugment in separate judgment disposing of such claim.
order for the court to remove the ambiguity.

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Judgment shall terminate the action w/ respect to the claim so The judgment in w/c the lower court makes a thorough study of the
disposed of and the action shall proceed as to the remaining claims. orig judgment and renders the amended and clairfied judgment only
after considering all the factual and legal issues.
SPECIAL JUDGMENT (SEC. 11, RULE 39, ROC)
It is an entirely new decision wc supersedes the orig decision.
One w/c requires the performance of any act, other than the
payment of money or the sale or delivery of real or personal SUPPLEMENTAL JUDGMENT
property w/c a party must personally do bec his personal
qualifications and circumstances have been taken ino consideration. A kind of judgment w/c serves to bolster or adds something to the
primary decision.
Failure to comply is punishable by contempt.
ALTERNATIVE JUDGMENT
JUDGMENT FOR SPECIFIC ACTS (SEC. 10, RULE 39)
The rule is that when the dispositive part of a final order or decision
Direct a party to execute conveyance of land, or to deliver deeds or is definite, clear, and unequivocal and can be wholly given effect
other docs, or to perform any other specific acts in connection w/o the need of interpretation or construciton, the same is
therewith but w/c acts can be performed by persons other than said considered as the judgment of the court, to the exclusion of
party. anything said in the body thereof.

JUDGMENT ON DEMURRER TO EVIDENCE (RULE 33) DEFICIENCY JUDGMENT

A judgment rendered by the court on the ground of insufficiency of A contingent claim and must be filed w/ probate court where the
evidence after the plaintiff has rested its case. settlement of the estate of the deceased mortgagor is pending, w/in
the period of time fixed for the filing of claims.
CONDITIONAL JUDGMENT
DECLARATORY JUDGMENT
Judgment is indefinite, or requires the performance of a condition,
the court must first determine won the condition imposed therein Where the petition for declaratory judgment is coupled w/ a prayer
had been compled w/ before it could issue a writ of execution. for the issuance of injunction, the same is equivalent to an action for
prohibition against pub officers.
FINAL JUDGMENT (SEC. 47, RULE 39)
NULL AND VOID JUDGMENT
Once a judgment becomes final and executory, all the issues
between the parties are deemed resolved and laid to rest. All the A decision that is null and void for want of juris is not a decision in
remains is the execution of the decisions w/c is a matter of right. contemplation of law and, hence, can never become executory.
The prevailing party is entitled to a writ of execution, the issuance of
w/c is the trial court’s ministerial duty.
FINAL ORDER DEFINED

FINAL AND EXECUTORY JUDGMENT


An order issued by the court w/c disposes of the subj matter in its
entiretly or terminates a particular proceeding, leaving nothing more
One rendered by the court when there is no MR or appeal filed, or
to be done except to enforce by execution what the court has
the same has already been denied w/ finality.
determined, but the latter does not completely dispose of the case
but leaves something else to be decided upon.
VOID JUDGMENT

EXAMPLES OF FINAL ORDERS


When the court w/c rendered it had no power to grant the relief or
no juris over the subj matter or over the parties or both.
a. Order granting MTD on the grounds of litis pendentia,
barred by prior judgment, barred by prescription, claim
It is a no jdugment at all. Cannot be the source of right nor the
has already been paid, waived, abandoned, or ow
creation of any obli. It is not a decision in contemplation of law and,
extinguishe, and the agreement is unenforceable under
hence, can never become executory.
the Statute of Fraud (Sec, 1[f], [h], and [i]);
AMENDED AND CLARIFIED JUDGMENT b. Order dismissing the case twice by a court of competent
juris under “2 dismissal rule” (Secs. 1 and 2 of Rule 17);

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c. Order dismissing the case due to fault of the plaintif (Sec.
3, Rule 17);
d. Order dismissing the case due to failure of the plaintiff to
appear during the pre-trial conference (Sec. 5, Rule 18);
e. Order denying the motion for leave to intervene (Sec. 1,
Rule 19);
f. Order granting a motion for demurrer to evidence (Sec. 1,
Rule 33);
g. Order denying MR or MNT (Sec. 1, Rule 37);
h. Order dismissing an appeal (Sec. 1, Rule 50).

REMEDY IN CASE OF A FINAL ORDER

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