DGC REM_NOTES (2019)

REMEDIAL LAW
(Civil Procedure)

General Principles

1. Performance or occurrence of all conditions precedent need not be averred

with particularity. A general averment is sufficient.
2. Actionable documents should be denied under oath, otherwise, deemed to
have admitted genuineness and due execution.
3. Docket and filing fees must be paid because as a rule, court acquires
jurisdiction over the case only upon payment of prescribed fees.
a) Without payment not deemed filed
b) If not fully paid, acquires jurisdiction only upon full payment within
reasonable time.
4. Voluntary appearance = service of summons
5. Motion to Dismiss must obtain all objections thereof, otherwise, deemed
waived
6. Failure to file a reply not an admission bec new matters in answer are
deemed controverted or denied
7. ROC is subordinate to statute. In case of conflict, statute will prevail
8. To apply judicial admissions in labor proceedings is to exact compliance
with technicalities contrary to the demands of substantial justice
9. The rule on formal offer of evidence does not apply in naturalization cases
10. When all the petitioners share a common interest and invoke a common
cause of action or defense, the signature of only one of them in the certf against
forum shopping substantially complies with the rules
11. Doctrine of non-interference or doctrine of judicial stability
holds that courts of equal and coordinate jurisdiction cannot interfere with each
other’s orders
12. Concurrent Jurisdiction - must be filed first in the court with the
lowest rank unless there are special countervailing reasons justifying its filing in
the first instance with a higher court
13. An error in jurisdiction is one where the act complained of was issued by
the court without or in excess of jurisdiction. Error in judgment, the court has
jurisdiction over the case but in the process of exercising that jurisdiction it
committed mistakes in the appreciation of the facts and evidence leading to an
erroneous judgment.
14. Errors of judgment is correctible by appeal while errors of jurisdiction are
correctible by the extraordinary writ of certiorari
15. Jurisdiction over subject matter is conferred by law or statute. Hence,
cannot be agreed upon by the parties
16. Jurisdiction is based on the allegations in the initiatory pleading and the
defenses in the answer are demmed irrelevant and immaterial in its
determination
17. Where a complaint for recovery of a loan of P300,000.00 is filed in the
MTC but after consideration of evidence, it is shown that the amount recoverable
is P1M, an amount within the jursidiction of RTC if originally filed, the MTC
cannot render judgment for P1M for lack of jurisdiction.
18. Ejectment cases: after reception of evidence, tenancy had in fact been
shown to be the real issue, the court should dismiss the case for lack of
jurisdiction. (tenancy = property involved is agricultural land)
19. Exceptions to doctrine of primary jurisdiction:
a) Estoppel
b) Challenged admin act is patently illegal
c) Unreasonable delay or inaction that will prejudice complainant
d) Amount involved is relatively small
e) Questions involved is purely legal
f) Judicial intervention is urgent
g) Application may cause irreparable damage
h) Controverted acts violate due process
i) Non-exhaustion of admin remedies has been rendered moot
j) No other plain, speedy, adequate remedy on the ordinary course of law
k) Strong public interest is involved

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DGC REM_NOTES (2019)

l) Quo warranto
20. Jurisdiction, once acquired, is not lost by the resignation of the
complaining party; it continues until the case is terminated.
21. Jurisdiction over the subject matter may be raised at any stage of the
proceeding even for the first time on appeal
22. When the court dismisses the case for lack of jurisdiction, it cannot
forward the case to another court with proper jurisdcition. Its authority is to
dismiss the compalint and not to make any other order.
23. Tijam only applies in exceptional cases. Laches should have been so
raised so belatedly so as to give rise to the presumption that the party entitled to
assert lack of jurisdiction had abandoned or declined to assert it.
24. Omnibus Motion Rule. For instance, if a mtd is filed by the defendant
on certain grounds but failed to include therein an available defense like
improper venue, said ground can no longer be invoked later as an affirmative
defense in the answer.
25. To constitute voluntary appearance, it must be the kind that amounts to a
voluntary submission to the jurisdiction of the court. Submission to the court’s
jurisdiction takes the form of an appearance that seeks affirmative relief except
when the relief sought is for the purpose of objecting to the
jurisdiction of the court over the person of the defendant
26. As a rule, an appearance in whatever form without expressly objecting to
the jurisdiction of the court over the person is a submission to the jurisdiction of
the court. Hence, filing of answer per se should not be treated automatically as a
voluntary appearance.
27. No second MR by the same party
28. Only appeal to SC is appeal by certiorari. Can raise only questions of law
29. Decisions of Ombudsman in admin cases appealable to CA
30. CTA EB decisions appealable to SC
31. Decisions of MTC in cadastral and land registration cases are appealable
to CA bec as if decided by RTC
32. An adjudication made in an ejectment proceeding re the issue of
ownership is merely provisional and would not bar action between the same
parties involving title to the land
33. Accion Publiciana - check assessed value. Not more than 20k outside
metro, mtc. Not more than 50k within metro. Mtc. More than these amounts, file
with rtc. It can also be filed in cases of ejectment where the grounds do not fall
under UD and FE, or the possession has been lost for more than 1 year
34. Accion reidivicatoria - recovery of ownership and possesssion based on
ownership
35. Cancellation of deeds of sale, transfer certificate of title and jva is a real
action jurisdiction must be based on assessed value
36. Declaration of nullity of deeds of sale is a real action
37. Reconveyance of real peroperty = real action
38. To determine if real action or not, check the primary relief sought
39. Quieting title, rtc (sabitsana)
40. To determine of court has jurisdiction = dteermined by the plaintoff’s
allegations in the compkaint and the principal relief he seeks
41. Between condo unit owners, hlurb. Between condo and unit ownerr, rtc
as scc.
42. Specific performance = inc of pecuniary est
43. Replevin = capable of pec est
44. Interpleader = capable. Juris depends on assesssed value
45. Partition = assessed value of the property
46. An in personam or an in rem action is a classification of actions according
to the object of the action. A personal and real action is a classification according
to foundation. It is in rem when directed against the whole world and in
personam when directed to a particular person
47. A land registration proceeding is in rem. Hence, personal notice not
necessary. Publication of such notice is publication to the whole world
48. Auction sale of land for collection of delinquent taxes is in personam.
Hence, publication of notice does not suffice.
49. Reconveyance is a real action, and in personam.

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DGC REM_NOTES (2019)

50. Judgment directing a party to deliver possession of property is in

personam
51. Declaration of nullity of title and recovery of ownership of real property,
or reconveyance, is a real action but action in personam bec it binds a particular
individual only
52. Injunction is in personam
53. Actions under FRIA are real action
54. Attachment and foreclosure are quasi in rem. Jurisdiction over the
person not required
55. In personam but summons by publication is allowed (w leave of court)
a) Identity is unknown or whereabouts unkown
b) Resident is temporariliy out of the country

RULE 2

 In unlawful detainer, notice and demand are not required if based on

expiration of lease. Otherwise, demand to vacate is necessary
 Defect/insufficiency of cause of action = failure to state cause of action
or states no cause of action
 Lac of cause of action = demurrer to evidence. Def not entitled tor elief
or lack of valid cause of action ( failure to prove or establish by evidence that
there is violation of coa of def)
 Splitting of a single coa also applies to counterclaims or cross claims
 Test to determine splitting of coa 1. same evidence 2. defenses 3. if the
issue in 2nd action is existing when the 1st action was filed
 joinder of coa is not compulsary but merely permissive
 Joinder of parties = issues of parties must be within the same
transaction
 Misjjoinder of coa can be severed and tried by motion or court’s
initiative

RULE 3

 Failure to implead indisp party does not warrant automatic dismissal. It is

when the order of the court to implead that is unheeded that the court can
dismiss the action
 Misjoinder of parties does not involve questions of jurisdction and not
ground for dismissal
 A judgment in an ejectment case may be enforced not only against def but
also members of their family, relatives or privies who derived their right
from deceased def
 Since the action is one for recovery of money, the judgment favorable to the
plaintiff shall be filed as money claim against estate of decedent
 Corp has separate and distinct personality than its members. It cannot file
suit to recover land owned by members

RULE 4

 Initiatory pleadings require Certification against forum shopping

 Permissive counterclaim requires certf against non forum, not compulsory
 Also applies to sca
 An order dimissing an action without prejudice is not appealable. Remedy is
to file R65

RULE 8

 Compromise not necessary in specpro

 An actionable document must specifically deny it under oath (verified).
otherwise, genuineness and due execution deemed to have been previously
admitted. Not applicable in 1. when the advere party is not a party to the
instrument 2. order for an inpection of original is refused

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DGC REM_NOTES (2019)

 Non payment of docket fee does not automatically cause the dismissal of the
case as long as the fee is paid within the applicable prescriptive or
reglementary period and no intent to defraud teh government
 The plaintiff’s non payment of additional filing fees due on their additional
claims did not divest the rtc of the jurisdiction it already had over the case
 Material averments not specifically denied shall be deemed admitted
 Blanket denial is a general denial which in effect is an admission

RULE 9

 Judgment in default must be rednered after the court conducted a hearing

 Motion to declare default must be heard
 A def who validly files his answer in time but failed to serve a copy thereof
upon the adverse party may be validly be declared in default
 Motion to declare def is prohibited in small claims
 Also in envi cases. The court is the one who will declare def in default, and
will require the plaintiff to file motion for the court to receive evidence ex
parte and render judgment based thereon
 Also in writ of amparo. The court will just proceed to hear the petition ex
parte. Same in habeas data
 also in summary judgment. But, def is not declared in default, the court motu
proprio or by motion of plaintiff will render judgment as warranted by the
facts and limited to what is prayed for
 Court is not required to personally receive the evidence if it decides to hear
the evidence of the claiming party. The reception of the evidence may be
delegated to the clerk of court
 The defendant’s answer should be admitted where it is filed before a
declaration of default and no prejudice is caused to the plaintiff
 Remedy after notice of order and before judgment
 File a motion under oath to set aside the order of default and show that
the failure to answer was due to FAME and that he has meritorius
defense
 After judgment and before judgment becomes final and executory -
 Appeal, MNT, MR
 After finality
 Petition for relief from judgment
(If improperly declared in default, remedy is certiorari)

 Compulsory counterclaim cognizable by such court both as to the amount

and nature. If the amount exceeds hte jurisdiction of the court, the
counterclaim should be deemed permissive, not compulsory. Except if filed
in rtc, counterclaim is deemed compulsory
 In actions for recovery of real property, it has been held that a claim for
compensation for improvements on land partakes of the naure of a
compulsory counterclaims
 a compulsory counterclaim, which a party has at the time the answer is filed
shall be contained in the answer bec a compulsory counterclaim not set up
shall be barred. A permissive counterclaim is not subject to the above rule.
Hence, it may be set up as an independent action and will not be barred if
not contained in the answer to the complaint (latter must have certf against
forum shopping)
 Failure to answer a compulsory counterclaim is not a cause for a default
declaration
 Payment of docket fees applies to both compulsory and permissive
counterclaims
 Dismissal of complaint NOT by mtd but by affirmative defenses will not
dismiss the counterclaim whether compulsory or permissive
 Dimissal by plaintiff himself will not dismiss counterclaim and proseccute in
a separate action within 15 days from notice of the motion

RULE 10

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DGC REM_NOTES (2019)

 The plaintiff may file an amended complaint even after the original
complaint was ordered dismissed, provided that the order of dismissal is not
yet final
 Amendment as a matter of right ONCE before a responsive pleading is
served
 Leave of court is required for an amendment made after service of a
responsive pleading
 Substantial amendments may be made only by leave of court
 Insufficiency in stating cause of action may be cured by evidence presented
during the trial without objection
 In a situation where issues not raies in the pleadings are pleadings are tried
with the express or implied consent of teh parties, sec 5 rule 10 authorizes
the amendment of the pleadings to conform to the evidence upon motion of a
party at any time even after judgment
 Sec 5 rule 10 allows a complaint that does not state a cause of action to be
cured by evidence presented without objection during the trial -- THIS IS
ALLOWED ONLY IF THE CAUSE OF ACTION EXISTS AT THE
TIME THE COMPLAINT IS FILD BUT THE COMPLAINT IS
DEFECTIVE FOR FAILURE TO ALLEGE THE ESSESNTIAL FACTS
 A premature action is a groundless suit
 A complaint cannot be amended to confer jurisdiction pn the court in which
it was filed if the cause of action originally set forth was not within the court’s
jurisdiction
 In case of amended complaint, the def shall not be served anew of summons
of the party has previously appeared in court. Otherwise, new summons on
the amnended complaint must be served on them
 However, a new def must be served summons
 Answer to tohe original pleading shall serve as the answer to the
supplemental pleading if no new or supplemental answer is filed

RULE 15

 Ex parte motion is not covered by hearing requirements of the rule

RULE 14 SUMMONS

 Under sec 8 rule 14 service may be effected upon all the defendants by
serving summons upon (a) any of them, or (b) any person in charge of the
office or odf the place of business maintained by such name
 Service upon a foreign private juridical entity - 1. resident agent
designated in accordance with law for that purpose 2. government official
designated by law to that effect 3. any of the officers or agents of said foreign
entity within the ph
 IF NOT REGISTERED IN PH OR NO RESIDENT AGENT - WITH
LEAVE OF COURT!!!
 By personal service in foreign country w assistance of dfa
 Publication in the country where the defendant is AND service of
summons to the last known address by registered mail WITH the cour
order
 Facsimile
 ANY OTHER MEANS AS THE COURT MAT IN ITS DISCRETION
DIRECT
 In an in personam against a resident of the ph temporarily outside / absent
from the country the def may be substituted service bec a man temporaily
outside the ph leaves a defnite place of residence or dwelling
 Several attempts before substituted service = 3 attemots, 2 of which must be
of the same day
 Business place = recipient of summons must not specifically authorized but
appears to be in charge
 Case: The sc frowned upon an overly strict application of the rules it is the
spirit rather than the letter of the procedural rules that governs. (sheriff
refused entry by the security guard of the new address of the def)

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DGC REM_NOTES (2019)

 Service of summons by publication in in personam cases is permissible only

in (extraterritorial service):
 Identity or whereabouts unknown
 Resident def is temporarily outside of ph (extraterritorial : 1. personal,
publication or any other mode)
 ONLY AND VALID WAY TO SERVE SUMMONS TO NON
RESIDENT DEF: SERVICE UPON HIS PERSON WHILE IN PH
 Summons by publication to a non resident in personam ONLY IN CASE
WHEN THE DEF IS A FOREIGN PRIVATE JURID ENTITY NOT
REGISTERED AND WITHOUT RESIDENT AGENT IN PH
 EXTRATERRITORIAL: 1. non res 2. outside ph 3. action in rem or quasi in
rem (does not applu to residents and in personam!)
 Partition = quasi in rem
 Non res def (sum of money = in personam). as a rule, can only be served
summons by service in person of the defendant. But since he is now a non res
but has a property in ph, convert to action from in personam to quasi in rem
by availing provisional remedy of attachment. Rule 57 provides in case the
def does not reside and not found in ph attach the property to convert
 Resident’s temporarily out = may be served substituted servce (under other
means )

RULE 12 MBP

 Not only applicable to complaints but to any pleading

 Filed before responding to a pleading
 Court’s action after motion: 1. deny 2. grant 3. hold hearing on a motion or
allow the parties the opportunity to be heard
 Pleader must be submit mtb withun 10 days from grant of court
 If order not obeyed court may 1. order the striking out of the pleading 2.
order striking out of portion3. order the court may deem just
 Whether granted or denied, period to file responsive pleading is suspended.
Dun nalang sa balance ng period of 15 days from filing mbp basta not less
than 5 days

RULE 16 MTD

 Res judicata applies in quasi judicial proceedings

 RJ does not apply in criminal cases
 In one crim case, nag motion yung isang party to quash based on res judicata
raw yung first action is on preliminary investigation. Firt, no RJ in crim.
Even saying na ang basis is “res judicata in prison grey” or double jeopardy,
the reinvestigation cannot be barred bec dismissal of the case in PI does not
constitute PJ bec it is not part of a trial
 A ground used in a denied mtd may still be invoked anew as an affirmative
defense
 If denied: file answer within the balance but shall not be less tha 5 days.
 Denial of mtd, being interlocutory, is not appealable
 If judgment ir final order is not appealable, remedies are: certiorari,
prohibtion or mandamus, whichever is applicable
 Dismissal without prejudicecannot be appealed under sec 1g r41
 When def is barred from refiling, party must appeal

RULE 17 DISMISSAL BY PLAINTIFF

 Before service of an answer = by NOTICE of dismissal

 For two-dismissal rule to apply, the court trying the case must be a court of
competent jurisdiction

PRE-TRIAL RULE 18

 Setting the case for prre trial is the duty of the plaintiff. It sis ex parte so not
set for hearing
 Filed withinn 5 days from the last pleading has been served and fiked

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DGC REM_NOTES (2019)

 Failure to appear:
 Plaintiff - dismissal of action
 Defendant - plaintiff can present evidence ex parte
 Failure to file ptb shall have the same effect as failure to appear at pretrial

MODES OF DISCOVERY

 Within ph - may be taken before a notary public, also before a judge or any
person authorized to administer oath if the parties stipulate in writing
 Outside ph - a depo may be taken before 1. sec of an embassy or legation,
consul general, consul, vice consul or consular agent of the RP 2. such person
or officer as may be appointed by commission or letters rogatory 3. a person
auth to administer oaths by written stipulation of the parties
 No depo shall be taken before a person who is a relative within 6 th degree of
consanguinity or affinity or ee or counsel of any parties 2. relative within the
same degree or ee of such counsel 3. financially interested in the action
 The sbstitution of parties does not affect the right to use the depositions
previously taken
 Perpetuation of testimony before action is done by filing a verified petitionn
in the place of the residence of ny expected advrse party
 A BOP is directed to a pleading and is designed to seek for a more definite
statement or for particulars of any matter not averred with sufficient
definiteness in a pleading. Not nec a party. Interrogatories to parties are not
directed against a particular pleading. Instead, they seek the disclosure of all
material and relevant facts from a party
 A party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or give deposition pending
appeal, unless allowed by the court for good cause shown and to prevent a
failure of justice
 As a consequence of the failure to avail of this mode of discovery, the party
shall not permitted to rpesent evidence on facts that are the material and
relevant and which are or ought to be within the persinal knowledge of the
other party unless otherwise allowed by the court for good cause shown and
to prevent a failure of justice
 Any admission made by a aprty as a consequence of the failure to comply
with the request is only for the purposeof the pending action and shall not be
deemed an admisssion cannot be used against the admitting party in any
other proceeding
 To defer admission: file objections
 The party examined may request the party causing the examination to be
made to deliver to him a copy of a detailed written report of the examining
physician setting out his findings and conclusions. After such request and
delivery the party causing the examination to be made shall be entitled upon
request to receive from the party examined a like report of any examination,
previously or thereafter made of the same mental condidion. Waiver of
privilega -- if refuses, court may issue court order
 If a party refuses to answer any question upon oral examination, the
proponent may apply to the proper court, for an order to compel an answer.
The same court, for an order to compel an aswer. The same procedure may
be availed of when a party or witness refuses to answer any interrogatory
submitted pursuant to the rules on the modes of discovery

* all proceedings under special adr are special proceedings

CONSOLIDATION OR SEVERANCE

 Consolidation must involve a common question of law or fact. Not

mandatory but is within the sound discretion of court. Same parties and
affect closely related subject matters, they must be consolidated and jointly
tried
 Kinds of consolidation
 Quasi-consolidation - where all except one of several actions are stayed
until one is tried, in which case the judgment in the one trial is

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DGC REM_NOTES (2019)

conclusive as to the others. This is not actually consolidation but is

referred to as quasi-conso
 Actual consolidation - several actions are combined into one lose their
separate identity and become a single action in which a single a
judgment is rendered
 Consolidation for trial - several actions tried together but maintains its
separate character and requires the entry of a separate judgment. This
type does not merge the action into one

DEMURRER TO EVIDENCE

 Def believes that the plaintiff is not entitled to relief

 Filed after the plaintiff rests his case (last pleading is filed)
 If denied, plaintiff may still present his evidence. This means that the denial
of demurrer deoes not deprive the plaintiff the chnce to adduce evidence on
his behalf

 If granted, cannot be refiled. Remedy of the plaintiff is to appeal from the
order of dismissal. If denied, not appealable bec merely interlocutory order.
It can be subject of certiorari.
 But if reversed on appeal, the plaintiff loses his right to present his
evidence
 Does not apply in election cases.
 In civil case, the court on its own make a demurrer. In crim, the court may do
so.

JUDGMENT

 Judgement must state clearly the facts and the law on which it is based
signed by the judge and filed with the clerk of court
 A decision so long as the factual and legal basis is distinctly and clearly set
forth the judgment is valid
 A decision with nothing to support is a patent nullity and should be struck
dow and set aside is void
 A void judgment has no legal and binding effect, force or efficacy for any
purpose
 A resolution denying mtd shall also state clearly and distinctly the reasons
therefore
 Memorandum decision is one rendered by an appellate vourt ehich
incorporates by reference the findings of fact and conclusions of law
contained in a decision or order under review
 Rendition of judgment = filing of the same with the clerk of court. It is not
the pronouncement of the judgment in open court constitutes the rendition
 It is not necessary that the judge who heard the evidence be the same judge
who shall pen the decision.
 a decision penned by a judge after his retirement cannot be validly
promulgated and cannot acquire a binding effect
 A juedge who was permanently transferred to another cocurt of equal
jurisdiction before the case heard by him was decided may validly prepare
and sign his decision on the said case and sne dthe same to the court where
he was originally assigned. Kahit transferred na yung judge to another
branch or court of EQUAL JURISDICTION is considered an incumbent
judge despite being transferred to another branch at the time the decision
was promulgated
 Res judicata = focal is judgment. Judgment on the merits. Identity of parties,
of subject matter, and of causes of action
 Stare decisis = focal is the doctrine
 Doctrine of Immutability of Judgment - a judgment that has attained finality
can no longer be disturbed
 Exception to the rule on imuutability of judgment:
 Correction of clerical errors
 Nunc pro tunc entries which cause no prejudice to any party and void
judgments

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DGC REM_NOTES (2019)

 Circumstances transpire after finality

 Void judgments
 Grave injustice
 Grounds for annulment of judgment
 In case a final order or final judgemt against a person, such judgmentt or
final order is presumptive evidence of a rightt between the partied and their
successorsin interest by a subsequent title
 How to repel judgment or final order or foreign court: 1. want of jurisdiction
2. notice to the party 3. fraud 4. collusion 5. fraud 6. clear mistake of law or
fact
 Kinds of Res Judicata:
 Bar by prior judgment - rendered by court of ceompetent jurisdiction,
same parties, same court, same cause of action, judgment on the merits
 Conclusiveness of Judgemtn - the judgment or final order precludes the
relitigation of particular issues or facts on a different demand or cause of
action
 An order of the trial court that the complaint does not state a cause of action
is a determination of the case on the merits. Dismissal for failure to state a
cause of action is still a judgment on the merits
 Several judgment - one rendered by a court against one or more defendants,
but not aginst all, leaving the action to ptoceed against the others
 This is proper when the liability of eaach party is clearly separable and
distinct from that of his coparties such that the claims against each of
them could have been the subject of separate suits, and judgment for or
against one of them will not necessarily affect the other
 Joint obligation can be subject of several judgments
 Separate Judgment - one claim judgment on several claims for relief
 Conditional judgment is generally void bec there is no disposition
 Judgment nunc pro tunc - a judgment which orders the entry of something
which was actually previously done. Its purpose is not to supply an omitted
action by the court but to enter into the record an action previously done but
which was not reflected in the record by reason of inadvertence or mistake
 Judgment on compromise has the effect of res judicata even if not judicially
approved. Cannot be set aside or disturbed except for vices of consent and
forgery. Once approved by the court, a judicial compromise is not appealable
but is immediately executory
 If one of the parties refuses to abide by the compromise, the other party msy
either enforce the compromise or regarded it as rescinded and insist upon
his original demand
 Remedy to judgment of compromise: motion to set aside compromise
aagreement. If denied, appeal.
 If the compromise is not judicial, remedy is to file an action to annul the
compromise.

JUDGMENT ON PLEADINGS

 Can be availed of when an answer fails to tender an issue or answer does not
answer material allegations of the adverse party’s pleadings
 Based only on submitted pleadings
 This will not apply if no answer is filed
 Cannot be done motu propio, can only do so by motion
 Will not apply in:
 Annul of marriage
 Declaration of nullity of marriage
 Legal separation
 Only the three-day notice to the adverse party is required

SUMMARY JUDGMENT

 Also called accelerated judgment

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DGC REM_NOTES (2019)

 Motion filed after issues had been joined (after answer) after pleadings and
papers filed the court finds no genuine issues as to any material fact except
as to the amount of damages = no important issues of facts involved
 No genuine issues of fact which call for the presentation of evidence in a full
blown trial. Or issue is unsubstatntial
 When the facts stated are undisputed, summary judgment cannot take the
place of trial
 No important issues involved except amount of damages
 Kumbaga, kung ang issue lang ay amount of damages, the rest di naman
contested, pwede pa rin summary judgment
 Ten-day notice to the adverse oarty is required

POST JUDGMENT REMEDIES

 BEFORE judgment becomes final and executory

 MR -
 Prohibited in Summary Procedure
 also in small claims
 In habeas data and amparo, the MR prohibited is on the
interlocutory order or interim relief
 Allowed in envi cases
 No extension to file mr allowed
 Notice to counsel is notice to party. But notice to party is not notice
to counsel
 Grounds:
 Excessive damages
 Decision contrary to law
 Evidence is insufficient to justify decision or final order
 must specifically pin point the findings or conckusions of law that is
the ground for mr. Pag di nasunod, will be deemed pro forma and
shall not toll the reglementary period
 A pro forma motion is one whoch does not satisfy the requirements
of the rules and will be treated as a motion intrnded to delay the
proceedings
 If denied, the movant has fresh period of 15 days to file notice of
appeal from receipt of order (also applies in denial of MNT)
 Neypes also applies in criminal cases
 Order of denial of MR/MNT not appealable. Remedy is appeal from
the judgment or final judgment
 filing of MR tolls the period for filing appeal, unless the court sees
otherwise
 MOTION FOR NEW TRIAL
 Prohibited in summary procedure
 Also in small claims
 ALLOWED in envi cases
 File within period of filing an appeal
 No extension of time to file
 Filing interrupts time for filing appeal
 Grounds:
 Fraud, accident, mistake and excusable negligence which
ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired of his rights
 Newly discovered evidence which he could not, with reasonable
diligence have discovered and produced at the trial and which if
presented would probabyly alter the result
 Gross negligence of counsel not a ground for new trial
 Denial of the motion. Fresh period rule from receipt of the order
 If the court grants the motion, original judgment vacated and the
action shall stand for trial de novo.
 The recored evidence in the former trial shall be ised at the new trial
without retaking the same if the evidence is material and competent

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DGC REM_NOTES (2019)

 A second MNT is allowed. All grounds must be included, those that

are not included deemed waived.
 But those that are not existing or available when the first motion
was filed, a second MNT may be filed during the period but exclued
yung time during which the first motion had been pending
 Any time after the appeal from the lower court hs been perfected
and before the court of appeals loses jurisdiction over the case, a
party may file a MNT on the gorund of NDE
 Motion must be accompanied by affidavits showing the facts
consttuting the grounds therefor and the nde

APPEALS

 Not a right but a sttautory privilege

 Certiorari and appeal are exclusive. The existence and availability of the right
to appeal proscribes resort to certiorari because one of the requirements for
availment of the latter is that there should be no appeal available
 Interlocutory orders cannot be subject of appeal
 Several and separate judgments are non-appealable
 An order disallowing or dismissing an apeal is non-appealable
 Not appealable:
 An order denying a motion to set aside a judgment by consent,
confession or compromse on the grounf of fraud, mistake or duress, or
any other ground vitiating consent
 Order of execution
 XPN: 1. if appeal would restrict the remedy available to a party
prejudiced by an improper or illegal execution as when the writ of
execution varies the judgment
 2. change in the situation of the parties
 Writ of execution has been improvidently issued
 Writ is defective in substance or issued against the wrong party
 Order dismissing an action without prejudice
 MTD grnted based on improper venue is dismissal without prejudice, hence,
non-appealable
 Dismissal bec of lack of certf against forum shopping - wo prejudice
 Denial of petition for relief from judgment is ONLY subject to r65, not r45
bec it is a mode of appeal
 Dismissal bec of plaintiff’s palagi di umaappear pre trial. Nd court did not
state that it is without prejudice, rmeedy then is appeal. R65 is a wrong
remedy
 Cases not appealable - remedy: r65
 A party cannot change his theory on appeal
 Failure to pay docket fees within the reglementary period allows only
discretionary dismissal not automatic dismissal of the appeal in accordance
woth the tenets of justice and fair play and with great deal of circumspection
considering all attendant circumstances

 The court is generally precluded from resolving a rule 45 petition that solely
raises the issue of damages, an essentially factual question, because sec 1 of
rule 45 expressly states that the petition shall raise only questions of law
 Factual findings of the trial court affirmed by the ca are final and conclusive
and may not be reviewed on appeal
 An appeal from a judgment in a petition for writ of habeas data may be
appealed to the sc under rule 45. said appeal may, likewise raise questions of
fact or law or both
 The rule is that the filing of r65 when the proper remedy should have been
r45 merits the outright dismissal of the petition
 R45 must also be accompanied with certf against forum shopping
 Decisions of SB appealable to SC by r45. certiorari under r65 is not the
remedy

RULE 43 APPEALS FROM QUASI JUDICIAL BODIES

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DGC REM_NOTES (2019)

 May be taken to ca whether for questions of law, questions fact, or mixed

 Appeal shall not stay the award unless otherwise directed by ca
 Decisions of NLRC:
 MR. If denied,
 R65 to CA (concurrent with sc pero ca muna bec of heirarchy of courts)
 Then petition for review on certiorai to SC
 Decisions of LAs are also covered here
 Admin decisions of OMB appealable in ca. Crim, appealable to sc 65
 NO LAW SHALL BE PASSED INCREASING THE APPELLATE
JURISDICTION OF THE SC AS PROVIEDED IN THIS CONSTI WITHOUT
ITS ADVICE AND CONCURRENCE
 A party adversely affected by a resolution of a division of the cta on a motion
for reconsideration or new trial may file a petition for review with the cta eb
 A judgment, resolution or final order of the COMELEC may be brought to
the SC under r65 by filing petition within 30 days from notice
 Judgment, resolution or final order of the coa --> r65 sc within 30 days
 Csc --> r43
 CONSTITUTIONAL COMMISSIONS - APPEAL IS THROUGH R45
 OP --> r43
 Secretary of Justice --> CA

 AFTER JUDGMENT BECOMES FINAL AND EXECUTORY

 R38 PETITION FOR RELIEF FROM JUDGMENT (FAME)

 Party was unjustly deprived of a hearing or was prevented from taking
an appeal because of fraud, accident, mistake or excusable neglect
 Not available when a party has other remedies available to him (MR,
MNT or appeal) and was not prevented by FAME
 MNT and Petition for relief are exclusive
 GROUNDS:
 Judgment or final order is entered in any court through fraud,
accident, mistake and excusable negligence - petition shall be filed
with such court and with the same case. The petition shall pray that
the judgment, order or proceeding be set aside
 When the petitioner has been prevented from taking an appeal by
FAME - shall be filed with such court and in the same case but the
prayer this time is that the appeal be given due course
 available only to a aprty to a case
 Does not only refer to judgments but also to any other proceedings
 SHALL BE FILED WITHIN 60 DAYS AFTER THE PETITIONER
LEARNS OF THE JUDGMENT AND NOT MORE THAN 6 MONTHS
FROM THE TIME THE JUDGMENT BECOME FINAL OR WAS
ENTERED
 SO, 60/6! BOTH PERIOD NOT EXTENDIBLE
 Can only be availed of when there is no other adequate remedy. LAST
CHANCE
 Petitioner may avail of PI to maintain the status quo
 PETITION FOR RELIEF FROM JUDGMENT NOT AN AVAILABLE
REMEDY IN SC BECAUSE IT IS NOT WITHIN THE ORIGINAL CASES
COGNIZABLE UNDER THE SC (R56)
 ALSO NOT APPLICABLE IN CA
 NOT APPLICABLE IN SMALL CLAIMS & SUMMARY PROCEDURE
 Allowed in envi cases to prevent miscarriage of justice

 R47 ANNULMENT OF JUDGMENT

 It is resorted to when the ordinary remedies of new trial, appeal, petition
for relief or other appropriate remedies are no longer available through
no fault of petitioner (exception to final judgment rule/immutability of
judgment)
 GROUNDS:
 Extrinsic fraud - not a valid ground if it was availed of or could have
been availed of in mnt or petition for relief. Fraudulent act
committed by the prevailing party outside the case whereby the

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DGC REM_NOTES (2019)

defeated party was prevented from presenting fully his side of the
case
 Offering manufactured evidence is intrinsic and not extrinsic
fraud
 Shall be filed 4 years from discovery
 Lack of jurisdiction - over the person of the def party or over the
subject matter
 Shall be brought before the action is barred by laches
 Denial of due process
 May be filed by one who was not a party to the case in which the assailed
judgment was rendered. It is a remedy independent of the case where
the judgment sought to be annulled is promulgated
 If the questioned judgment had already been executed, the court may
issue orders of resititution or other relief as justice and equity may
warrant under the circumstances
 A party aggrieved who desires an annulment of a judgment or reso of a
quasi-judicial body enumeratedunder r43 may avail of a petition for
review to the ca under said rule and not an action to annul judgment or
reso

CERTIORARI

 Not being part of the proceedings that gave rise to the assailed order, the
petition shall not interrupt the course of the principal case, unless tro or a PI
has been issued
 Since it is an original action, a judgment in this petition is subject of appeal
not by another petition for certiorari
 If the petitioner has the remedy of appeal or any other remedy, certiorari is
not available. But even if appeal is not available, if it is not adequate, speedy
or equally beneficial as certiorari a petition for certiorari may be availed of
 Certiorari and appeal are mutually exclusive
 Certiorari is also not a substitute for appeal where the latter remedy is
available but was lost through fault or negligence
 IN CASE A MOTION FOR RECONSIDERATION WAS FILED, THE 60-DAY
PERIOD STARTS NOT FROM THE NOTICE OF JUDGMENT BUT FROM
NOTICE OF THE DENIAL OF THE MOTION FOR RECONSIDERATION
 Motion for Reconsideration a petitioner must exhaust. Meaning, if he can
file MR then he can do so.
 Certiorari and mr are mutually exclusive bec they do not have identical
elements and requisites
 The condition precedent (filing of MR) must be complied with with
subsequent denial thereof
 Filing of mr is an indispensable condition. To dispense with the requisite
motion must show a concrete, compelling, and valid reason for doing so
 MR can be dispensed with when the pet was deprived of due process and
there is extreme urgency for relief
 Where the proceedings in the lower court are a nullity for lack due process -
mr can be dispensed with
 Petition must have certf against forum shopping
 The pendency of certiorari does not suspend the proceedings as to the case
subject of certiorari
 To enjoin the public respondent from hearing the case, must file writ of
PI to interrupt the course of the principal case

R 39 EXECUTION OF JUDGMENT

 Issuance of writ of execution after expiration of period to appeal is a

ministerial duty of the court
 Execution shall issue upon motion even in judgments immediately executory
 Motion shall contain notice to the adverse party otherwise it will be
considered as a worthless piece of paper which the court is not obligated to
act upon
 No appeal may be taken from an order of execution

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DGC REM_NOTES (2019)

 When the execution is not in harmony with the judgment which gives it life
and exceeds it, it has no validity
 The writ shall continue in effect during the period within which the judgment
may be enforced by motion. Hence, the writ is enforceable withi the 5-year
period from entry (date of finality) of judgment. Within this period, it can be
enforced by motion
 The parties are at liberty to novate a judgment by entering into a
compromise. A compromise is a contract recognized by substantive law
 Quashal of writ of execution - by sca of certiorari, prohibition or mandamus
 If 5 years has lapsed, the judgment can only be executed by filing an
independent action for revival of judgment (this must be filed within 10 yrs
from the date the judgment become final, which is now the date of its entry)
 It was held that if the writ was issued abd the levy was made witin 5 years
from entry, the auction sale must be made even after the 5 year period. The
sale of the property and the application of the proceeds are merely the means
to carry out the writ of execution. The levy is the essential part of the
judgment and since it was carried out within the 5 year period, okay lang
kahit beyond 5 yrs na yung auction. BUT, the sake must be done within the
10 year period from entry of judgment. Action to revive must be filef within
10 yrs from finality of judgment to prevent prescription
 Revived judgment is a new and separate judgment from the original one OR
NEW ACTION; NOT A CONTINUATION OF THE OLD
 The revived judgment may also be enforced by motion within 5 years
from ENTRY (nung revived na na judgment) before it is barred by
prescription.. SO KUNG IRE REVIVE MO NANAMAN TO, MUST FILE
INDEPENDENT ACTION FOR REVIVAL OF JUDGMENT WITHIN 10
YEARS FROM THE DATE OF FINALITY OF THE REVIVED
JUDGMENT
 Five and ten year periods do not apply in 1. specpro such as land registration
and cadastral cases 2. judgment for support
 Even if actions are immediately executory, there must still be a motion for
execution
 DISCRETIONARY EXECUTION/ immediate execution - before finality of
appeal, pwede na magpa execute ng original judgment but ONLY FOR
GOOD REASONS. What costitute good reasons is left to the sound discretion
of the court. The decision to determine whether it is a good reason is with the
trial court
 It is already settled that the mere filing of a bond does not warrant execution
pending appeal. To consider the mere filing of a bond a good reason would
precisely make immediate execution of a judgment pending appeal
routinary, the rule rather than the execption
 After the trial court has lost jurisdiction (losses possession of the original
record or record on appeal) excution oending appeal may be filed in the
appellate court
 if judgment reversed or annulled = restitution or reparation of damages
as equity
 Execute judgment for money
 Cash
 If cannot pay all or aprt, levy. JO will choose, but if ayaw nya, then the
sheriff will have to choose but must start with personal props. He shall
levy so much properties as to only cover the judgment award
 Garnishment - banks deps, etc.

(only those properties unquestionably belonging to the judgment

obligee/debtor ad only those properties which are not otherwise
exempt from execution. The property is deemed to tbelong to the JO if he
holds a beneficial interest in such property that he can sell or otherwise dispose
of for value)

 the mere refusal or unwillingness of the judgment debtor to vacate the

property is not sufficient ground to hold him in contempt. The writ of
possession was not directed to the JDr but to the sheriff who was directed to
deliver the property to the prevailig party

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DGC REM_NOTES (2019)

 Third person claiming title to the peroperty levid - TERCERIA. Pwede rin sya
magpa nullify ng levy with damages. But on terceria:
 File affidavit with the officer making the levy and with the JOe
 Officer not bound to keep the property unless hte Joe files a bnd
 Levy of real property:
 File with the rd copy of the orderm description of the attached property
and notice of attachment
 Leaving a copy with the occupant
 Sale and redemption of RP
 The officer shall issue a Certificate of Sale in favor of the
purchaser/highest bidder. He shall then register it with the register of
deeds of the place where the property is located
 The property may be redeemed within 1 year FROM THE
REGISTRATION OF THE CERTIFICATE OF SALE.
 If there are other redemptioners, must redeem the property within 60
days from last redemption
 If no redemption within 1 year from the reg of the certf of sale, the purchaser
is entitled to a conveyance and possession. Or kung wala na ulit nag redeem,
yung last redemptioner and entitled to the conveyance and possession
 All rents, earnings and income derived from the property pending
redemption shall belong to the JOr until the expiration of his period to
redeem

SUMMARY PROCEDURE

a) Defenses not pleaded in the answer shall be deemed waived. The only
defense not deemed waived is lack of jurisdiction over the subject matter
b) Appealable to rtc. Then petrev to ca on error of fact or law

SMALL CLAIMS

a) Rules on evidence do not apply.

b) If a case is determined by a judge to be not a small claim within the
meaning of the Rule, but it still falls within the jurisdiction of the first level court,
the case should not be dismissed , and the judge should declare it governed by
the proper procedure (summary procedure). the case should then be re-docketed
but no re-assignment (by a raffle in a multi-sala court) is necessary.
c) Must still file certificate to file action from barangay as a pre-requisite.
Otherwise, ground for dismissal under rule 16 of regular rules as applied
suppletorily
d) MTD not allowed, grounds for dismissal should be pleaded
e) Failure to file response and failure to appear at scheduled hearing, court
shall render judgment. Both requisites shall be present
f) Failure of both parties to appear at scheduled hearing shall cause dismissal
with prejudice
g) NO APPEAL. May file r65

56. Court cannot motu propio dismiss the case for failure to comply brgy
conciliation.
57. Venue = restrictive vs permissive
58. Motu propio dismissal bec of improper venue is not correct. May only do
so in summary procedure
59. Venue has nothing to do with juris in civil. So no mtd based on loj based
on improper venue
60. Nullity of marriage = personal
61.

DISMISSSAL BY PLAINTIFF

1. Notice of Dismissal
a) Before adverse party served his answer / summary judgment
b) This is without prejudice to being refiled later. Except:

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DGC REM_NOTES (2019)

i. When stated in the notice

ii. Barred by two-dismissal rule
c) Matter of right by plaintiff
d) Court must issue an order as a matter of course
2. If answer/any responsive pleading has already been served, file Motion to
Dismiss (not a responsive pleading)

BILL OF PARTICULARS

a. After motion, adverse party must submit motion within 10 days

b. If not obeyed/insufficient, strike out pleadings or portions thereof

JUDGMENT ON PLEADINGS

a. Based on pleadings only

b. Failed to tender issue, or
c. If the answer admits material averments in the complaint, deemed to have
failed to tender issue

SUMMARY JUDGMENT

a. No genuine issue
b. There is issue but it does not concern material facts
c. Pleadings, affidavits, depositions, admissions

INTERVENTION

a. Anytime before judgment

DEMURRER TO EVIDENCE

a. If the defendant believes that the plaintiff is not entitled to relief

b. Denied: defendant can present evidence
c. Granted but denied on appeal: defendant deemed to have waived right
to present evidence

POST-JUDGMENT REMEDIES

1. Before final and executory

a) Motion for reconsideration
b) Motion for New Trial
c) Appeal

 If MR or MNT is denied, party may file appeal from the judgment ff

fresh period rule
2. After final and executory
a) NO APPEAL ANYMORE
b) Petition for relief
c) Annulment of judgment
d) Collaterally attack judgment when the nullity is plain and evident on its
face

16