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Rules of Court

Applicable in all courts (MTC, RTC, CA, SC)

Not applicable in land registration, election laws, naturalization

Civil Action

Ordinary Civil Action

Rule 1-40

Special Civil Action

Rule 62-71

*Collection suit cannot be consolidated because it is governed by the

different rules

Subject-matter – the thing, the wrongful act, the contract that had given
rise to the case; directly under controversy

Cause of action –

Remedy –

*breach of contract

Subject Matter – Contract

Cause of Action – Breach

Remedy – Specific performance

Criminal Action

Special Proceeding

Probate of a will


Venue (Rule 4)

Real Action

Personal Action

Binding Effect:

In Rem – the binding effect of the decision of the court is against the whole
world (land registration)

In Personam – the binding effect is between the parties only

Quasi In Rem – action brought against specific party but involved real
property (foreclosure of property in case of default of payment)

Action in Personam (to bind a person)

Action in Rem (to bind a property)

Action Quasi in rem (to bind the person for the purpose of binding his

Cause of Action (Rule 2)

Cannot be split but can be joined

The act or omission by which a party violates a right of another


1. The existence of the legal right of the plaintiff

2. A correlative legal duty of the defendant to respect one’s right

3. An act or omission of the defendant in violation of the plaintiff’s





Joinder by pro forma party (husband and wife)


Wife is suing to recover her paraphernal property

Exercise of profession

Judicially separated

Separation of property in pre-nup

Administration of property is transferred to either spouses

Husband sues the wife

Art 25 – 35 of human relations

Separated in fact for more than 1 year

Real Party in interest

Is he right the person to demand me?

Is he the right person that I will demand?

Motion to dismiss can be raised as a defense to know the real party in


Compulsory Party – must be impleaded, must always be joined

Necessary Party- need not always need to be joined unless ordered by the court

Permissive – may or may not be impleaded

Series of transactions-separate dealings but with the same kind of the subject
matter of the suit


Personal circumstances of parties (address)

Check the document, real or personal action

Look for venue stipulation, is it restrictive?

Real action or personal action will be important if there is no venue


Real Action affects the title or possession of real property

Ejectment cases, if there is venue stipulation, follow the venue stipulation

Venue stipulation is for the convenience of the parties, though it’s a valid
stipulation, if it will prejudice one of the parties, it can be questioned.

Bill of Lading is different from Lease of Agreement

Uniform Rules

Ordinary Procedure

Summary Procedure – applicable to MTC only

Small Claims Procedure

Kinds of Pleadings
Pleadings are the written statements of the respective claims and defenses
of parties submitted to the court for appropriate judgment

Complaint -> Answer (Bill of Particulars if cannot be understand) -> Reply

Complaint with claim -> Answer with counterclaim (compulsory or

permissive) (if compulsory counterclaim there is no need for reply because
it is necessarily arises on the same transaction)

Complaint with counterclaim

Third Party Complaint -> Third Party Answer

Complaint – complete if it can be intelligently understand and answered

Complaint is the pleading stating the cause or causes of action of the

plaintiff and the reliefs sought

Regular Proceedings - Answer is 15 days to file

Summary Procedure – Answer is 10 days to file

Summary Proceedings - Answer is a prohibited pleadings

Answer is the pleading that where the defendant states the his defenses to
the complaint

Defenses are either negative or affirmative

Negative defenses specifically denies the material facts alleges in the

complaint stating the reason of such denial (lack of information as to
veracity of the allegation)

Affirmative defenses is alleging a new matter, hypothetically admits the

allegations in the complaint but raises defenses that will prevent recovery
(release, payment, fraud, etc)

Reply is not optional when the defense of usury is raised or if the defense in
based on actionable document (forged signature)
Counterclaim is either compulsory or permissive

There is no need to file a reply against a compulsory counterclaim

Compulsory counterclaim must be file on the same suit because it arises

from the same transaction (dependent to the main action)

Compulsory counter claim

1. Arises from the same transaction or series of transactions

2. Do not need third party in order for the court to adjudicate

3. Plaintiff cannot be declare in default if answer is not file within the

reglementary period

Permissive counter-claim

1. Does not arise on the same transaction, not deem barred if not set

2. Plaintiff can be held in default because it is an initiatory pleading

3. Requires a Certificate on Non-Forum Shopping

Permissive counterclaim is a new suit altogether and must be answered,

pay docket fees, certificate of non-forum shopping (it is an independent

Answer with compulsory counterclaim need not be separately filed, need

not pay docket fee, need not need to execute a certificate of non-forum

Reply with Motion To Dismiss to the Counterclaim

Plaintiff can raise both compulsory and permissive counterclaim at the

same time in his answer

Defendant’s answer shall be Reply to Answer with Answer to the

Permissive Counterclaim
Cross-claim – a suit against co-defendant

Counterclaim with cross-claim

Permissive Cross-claim (if outside the jurisdiction of the court) the dismissal
of the complaint carries with it the dismissal of the cross-claim which is
purely defensive. (if filed with affirmative defense, the dismissal of the
complaint does not carry with it the dismissal of the permissive cross-claim,
because it is a new suit altogether)

Answer with a compulsory counter claim and compulsory cross claim

Compulsory Cross-claim

Third (fourth, etc) party complaint – new complaint with prior leave of the
court intended for contribution, subrogation, other reliefs (third-party
plaintiff v. third-party defendant)

Parts of a Pleading


Name of the court

Title of the Action

Docket number if assigned

The caption in not controlling, it’s the body

Write the complete name of all the parties in the original

pleading, et al is allowed on subsequent pleading


Designation of the pleading

Reliefs prayed for

Date of the pleading

Paragraph should be numbered



All pleadings in summary proceedings must be verified

Certification against Non Forum-Shopping

General Rule

All initiatory pleading shall have a certificate of non forum-


All parties must sign the certificate of certificate of non forum-

shopping (exceptions: Docena v. Lapesura)

Lawyers are not allowed to sign the certificate of non forum-



Identity of Parties

Identity of cause of action

Similarity of interest

Defendant can sign a Certificate of Non Forum-Shopping in a

permissive counter claim (UST v. Surla)

Corporation can only act through its officers (board resolution)

There is no forum shopping in Court of Appeals because there is only

one Court of Appeals (Sameer v. Santos)
Ultimate Facts

Initiatory Pleadings

Alternative Causes of Actions

Alternative Defenses

Capacity to sue

Minor child has no capacity to sue, unless represented by a guardian

Domestic Corporation has a capacity to sue

Foreign Corporation not doing business in the Philippines cannot sue

(exceptions: Antam (isolated transaction), Merrill Lynch (estoppel))

Foreign Corporation licensed to do business in the Philippines can

sue and be sued

Fraud and Mistake

Must be alleged with particularity

Conditions of the Mind (ill will, ill refute, malicious intent)

Alleged generally

Alleged with Particularity




Alleged Generally

Conditions precedent

Conditions of the mind

Judgments of a foreign court

Actionable Document

It is a written document which is the basis of claim or defense

The document or the substance of such document shall be set forth

in pleading and the original or photocopy of such document is
annexed in the pleading

The denial must be under oath, not only a specific denial

It can be contest under oath specifically denying it and setting forth

what the facts should be

If it is not denied under oath, it is deemed admitted (technical

admission) or its genuineness is deemed admitted

If the counsel was not able to object the technical admission, the
technical admission is deemed waived.

Not all documents attached in the pleading is an actionable

document, it may only be evidentiary document

Technical Admission does not apply if the party is not a party to the
document or if there is an order of inspection of the original
document and the inspection was refused

Genuineness is the authenticity of the document

Due execution

Defenses like Forgery, lack of authority, failure to deliver the

instrument cannot be set up if there is a technical admission because
it is not consistent with due execution of the document
(voluntariness of execution)

Defense of illegal consideration can be raise, and the document is

illegal because it is not inconsistent with due execution
Specific Denial

Denial is found in the Answer

Defendant admits…but specifically denies…the truth of the matter


Two Modes of Specific Denial:

1. By specifically denying the allegations

2. By denying on the ground of lack of knowledge or

information to form a belief as to the truth of material

Failure to deny is deemed admission

Negative pregnant – denial with admission of the substantial fact

Reply is important (mandatory) in actionable document and usury

Actionable document and usury must be denied under oath or it is

deem admitted

Striking out of Pleading

Sham or false, redundant, immaterial, impertinent, or scandalous


Motion to Expunge

Failure to Plead

No Default after defendant filed his answer within the prescribed period

Exceptions of defenses not deemed waive:

1. Lack of jurisdiction over the subject matter

2. Lites pendentia
3. Res judicata

4. Prescription


Failure of the defendant to answer within the reglementary period

provided by the rules

Defendant is

The remedies available to a defendant declared in default are:

1. The defendant in default may, at any time after discovery thereof and
before judgment, file a motion under oath to set aside the order of default
on the ground that was failure to answer or appear on the date set for pre-
trial was due to fraud, accident, mistake or excusable negligence, and that
he has a meritorious defense;

2. If the judgment has already been rendered when the defendant

discovered the default, but before the same has become final and
executory, he may file a petition for new trial under Sec. 1(a) of Rule 37;

3. If the defendant discovered the default after the judgment has become
final and executory, he may file a petition for relief under Sec. 2, Rule 38;

4. He may also appeal from the judgment rendered against him as contrary
to the evidence or the law, even if no petition to set aside the order of
default has been presented by him.

Remedy if the order of default is improvidently issued:

Petition for Certiorari under Rule 65 (Indian v. CHED)

Requirements of a default order:

(1) the court must have validly acquired jurisdiction over the person of the
defendant either by service of summons or voluntary appearance;
(2) the defendant failed to file his answer within the time allowed therefor;

(3) there must be a motion to declare the defendant in default with notice
to the latter.

Order of Default

Motion to Declare the Party in Default (not allowed in Summary


Grounds for Motion to Lift the Order of Default




Excusable Negligence

Affidavit Merit (that you have a meritorious defense) but not

needed in improper service of summon

Judgment by Default

Declaration of default

Failure to file an answer

Opposing party may be declare in default for Failure to file an answer

to a permissive counter-claim or permissive cross-claim

Failure to attend in pre-trial, party cannot be held in default but the

other part may now present evidence ex-parte

Relief from Order of Default

Before Judgment

Motion to Set Aside Order of Default

FAME+Affidavit of Merit

After judgment but before it becomes final and executor

Motion to Set Aside Order of Default

FAME+Affidavit of Merit

After judgment

Petition for relief from judgment

FAME+Affidavit of Merit

Improper order of default

Certiorari under Rule 65

Partial Default

Several parties but common cause of action,

Extent of Relief to be Awarded

Only to the extent of the prayed but it can be less than that and it
cannot be more than that or in different kind

Cannot be awarded unliquidated damages (exemplary, moral)

Default is not allowed

Annulment of Marriage

Legal Separation

Amended Complaint

Compromise agreement is final and executory and not subject to amended

complaint (Leobrera v. CA)
Stipulations in the original complaint can still be use by confronting the
witness in the trial and highlighting the inconsistencies between the
original complaint and the amended complaint (Torres v. CA)

Filing fee should be based on the amended complaint because the original
complaint is deemed vacated (Magaspi v. Ramolete)

After stipulations of the facts, the judgment based on the stipulation is not
anymore subject to amended pleading (MWSS v. CA)

Court can grant a higher amount even without an amended pleading

(Northern Cement v. IAC)

Amendments may substantially alter the cause of action of the pleading

(Valenzuela v. CA)

Supplemental Amendment is not allowed because the spouses know it

from the very start (Lambino v. Presiding Judge)

Supplemental / Amended

If no different cause of action is presented in the amended complaint, it is

deemed file on the date the original complaint was filed, but if there is new
cause of action presented, it is deemed file on the date the amended
complaint is filed (Versoza v. CA)

When to File


Summary Procedure


Ordinary Procedure

If served to a public official authorized to receive summons for a
foreign corporation (SEC) (not applicable to foreigners)


If by publication

Extra-territorial service

Service of Summons

Service and not when the summon was receive

Date of service is the start of counting of reglementary period

Filing can be personal or by registered mail (there can be a chance

that it was filed on the last day of reglementary period via registered
mail, don’t file a motion to declare the other party in default the
following day)

If the summon was erroneously served, you can file motion to

dismiss on the ground of the court has no jurisdiction over the

Motion for extension to file the answer not allowed in summary


Receipt of the order granting the amended complaint should be the

start of counting of 10 days to answer the amended complaint,
failure to answer the amended complaint will not cause default but
the new matters raise on the amended complaint will be deemed

File an answer to a permissive counter claim, failure to answer will

cause default

Third party complaint not allowed in rules of summary procedure

Omitted Counter-Claim or Cross-Claim - Permissible reasons:
Excusable neglect, oversight, inadvertence, justice requires

Bill of Particulars

Motion for Bill of Particulars is filed before a responding to a pleading, it

can be against a complaint or a counter-claim

No default if there is pending motion for Bill of Particulars

5 days to answer the Bill of Particulars

Answer may be “Answer to Bill of Particulars” or “Amended Complaint” (15

Days to file as a matter of right)

Bill of Particulars cannot be used as discovery procedure (Salita v. Magtolis)

Bill of Particulars must be resolved first before Motion to Dismiss, or

Motion to Declare in Default (Agcanas v. Mercado)

If fraud is not declared with particularity, Bill of Particular is the remedy

(Santos v. Liwag)

Filing and Service


The act of submitting pleadings before the court


The mode of informing the other party

If the party is duly represented by a lawyer, service shall be made to that


If there are multiple clients and multiple lawyers, each of the lawyers shall
be served a copy of pleading
If there is only one party but there are multiple lawyers, only one copy is
required to be serve to either of the lawyers

Modes of Filing

Personal Filing – deemed filed upon the receipt of the clerk of court

Filing by Registered Mail – deemed filed upon the receipt of post

office (If filed via private courier, upon the actual receipt of the clerk
of court)

Modes of Service

Personal Service

Service by Registered Mail or Ordinary Mail

Substituted Service – by delivering a copy to clerk of court after

failure of both personal service and service by mail

Completeness of Service

Personal Service – complete upon actual delivery

Service via Registered Mail – complete upon actual receipt or after

the lapse of 5 days from the first notice from the postmaster
whichever comes first

Service by Ordinary Mail – complete upon the lapse of 10 days after


Priorities in modes of Service and Filing


Registered Mail

Proof of Filing

Proof of Service
Lis Pendes


Issued by the Clerk of Court


To Acquire Jurisdiction over Defendant

To Notify the Defendant

Service of Summons

Personal Service

By handling a copy to the defendant

By tendering the copy if the defendant refused to accept the


Substituted Service

By leaving copies at the defendant’s residence with a person of

suitable age and discretion and resident therein

By leaving copies at the defendant’s office or regular place of

business with some competent person in charge thereof

Service by Publication

Entity without a juridical entity

Can be sued but cannot sue


Officer of the jail/institution deemed deputized to act as a special


Minor and Incompetent

To the minor, insanse, and incompetent and his legal guardian or
guardian ad litem, or either of his parents (in case of minor only)

Domestic Judicial Private Entity

President, Managing Partner, general manager, corporate secretary,

treasurer, in-house counsel

Foreign Judicial Private Entity

Resident Agent, government official designated by law to receive

summons for a foreign corporation (SEC), officers or agents in the

Public Corporation

Solicitor General if against the Republic of the Philippines

Local Chief Executive if against public corporations

Other officers as the law or court may direct

Unknown Identity or unknown whereabouts

By publication in a newspaper of general circulation and in such

places and for such time as the court may order

Extraterritorial Service (defendant does not reside and cannot be found in

the Philippines)

Personal Service outside the Philippines with leave of court

By publication in a newspaper of general circulation

In any other manner the court may deem sufficient


1. Name of the Court and names of the parties

2. Direction that the defendant answer within the time fixed

3. Warning for default judgment

In case of multiple defendants, each defendant shall be served with a


Served by


Deputy Sheriff

Officers of the court authorized to serve summons

Suitable person


Sheriff can be presented in the witness stand to prove that he tried

to serve the summons personally

Motion to Dismiss


1. Court has no jurisdiction over the person of the defendant

2. Court has no jurisdiction over the subject matter of the claim

3. Venue is improperly laid

4. Plaintiff has no legal capacity to sue

5. Litis Pendentia between the same parties and the same cause

Same Parties or interest

Same Rights and reliefs prayed for

Res Judicata will take effect on the other case

6. Cause of action is barred by prior judgment or statute of


7. Pleading states no cause of action

Cause of Action

Plaintiff’s right

Defendant’s duty to respect that right

Breach of Defendant’s duty

Hypothetical admission only (that the allegations are true)

8. Claim or demand has been paid, waived, abandoned, or otherwise


9. Statute of Fraud

If not reduce to writing (except if there is partial fulfillment)

Agreement no to be performed within a year from its


Special promise to answer for the debt, default, or

miscarriage of another

Agreement made in consideration of marriage

Sale of Real Property or interest therein

10. Condition precedent not complied

Dismissal that will bar refilling

Barred by prior judgment (res judicata)

Paid, waived, abandoned, or otherwise extinguished

Statute of Frauds

Dismissal of Actions
Notice of Dismissal

Plaintiff files a Notice to Dismiss without prejudice, unless otherwise


Defendant can file a Notice to Dismiss if he becomes a third party


With prejudice if the plaintiff cause the dismissal of that same action
in a court of competent jurisdiction

Court has nothing more to do but to issue a confirmatory order of


Motion to Dismiss

Plaintiff files a Motion to Dismiss

Must have Notice of Hearing

Litigated Motion

Dismissal Due to Plaintiff’s Fault

Always with prejudice

No justifiable cause for failure to:

Appear on presentation of evidence in chief

Prosecute for unreasonable length of time

Unreasonable length of time

Depends upon the circumstances of each

particular cases

Sound discretion of Court

Comply with rules and or order of the court


After the last pleading was filed


It is the duty of the plaintiff’s counsel to moved for pre-trial, clerk of court
will moved for pre-trial in default of the plaintiff’s counsel

Both parties must file their pre-trial brief three days before the pre-trial

If the case is mediatable it will be refer to mediation board, if it failed it will

be refer back to the court

Pre-trial order is mandatory, the reckoning period of 10 days to file

memorandum in a summary procedure

The SPA should contain the enumeration in Rule 18, Sec. 2

You cannot change your theory first time on appeal

Last pleading is usually the reply, or if no reply it’s the answer

Plaintiff can only be put in default only at the motion of the defendant

The SPA must be properly worded

Failure to file a pre-trial brief will have the


A third party is allowed by the court to appear in a proceeding where that

third party is not an original party

Intervention is different from a third-party complaint, intervention-third

person wants to join the original parties; third-party complaint-original
parties want a third person to join the proceeding

Intervention is not a matter of right

Requisite to grant motion to intervene

Whether or not the intervention will unduly delay or prejudice the

adjudication of rights of the original parties

Whether or not the intervenor’s rights may be fully protected in a

separate proceeding

Who may intervene

Legal interest in the matter of litigation; or

In the success of either of the parties; or

An interest against both; or

Is so situated to as to be adversely affected by the distribution or

other disposition of property in the custody of the court

Intervention is at any time before the trial court renders a decision

15 days to file an answer to intervention after receiving the order granting

the motion to intervene

Calendar of Cases

Clerk of Court take charge of calendaring cases

Raffle is the mode of assigning cases


Subpoena ad testificandum

Subpoena duces tecum

Viatory right – the right to decline the subpoena if leaving 100 kilometers
from the court that issued the subpoena, remedy is to take a deposition in
the court where the person leave

Viatory right is applicable only in civil cases

Who may issue

The court before the witness is required to attend

The court before the deposition is to be taken

Officer or body authorized by law to issue subpoena in connection of

an investigation

Any justice of SC or CA in any case or investigation within the


Grounds to quash

Subpoena ad testificandum

Witness is not bound because of viatory right

Kilometrage and witness fee not paid

Subpoena duces tecum

It is unreasonable and oppressive

Relevancy does not appear

Fails to advance the reasonable cost of production

Computation of Time

Exclude the first day, include the last day

If the last day falls on a Sunday or holiday, the last day will be the next
working day

Fresh Period Rule applies to Rule 40, 42, 43, 45

Modes of Discovery

1. Depositions Pending Action (Rule 23) (with leave of court if answer was not yet filed)
2. Depositions before action or pending appeal (Rule 24) (with leave of court if answer was not yet filed)

3. Interrogatories to parties (Rule 25) (with leave of court if answer was not yet filed)

4. Admission by adverse party (Rule 26) (with leave of court if answer was not yet filed)

5. Production or inspection of documents or things (Rule 27) (always with leave of court)

6. Physical and mental examination of persons (Rule 28) (always with leave of court)

Legal consequences for the refusal of a party to comply (Rule 29)


1. Depositions on oral examination

2. Depositions upon written interrogatories

3. Depositions de benne esse (Rule 23 – pending action)

4. Depositions in perpetuam rei memoriam (Rule 24 – taken to perpetuate

evidence for purpose of an anticipated action or further proceedings in a
case on appeal) (applicable only to civil cases)


Knowledge of the evidence of the adverse party may facilitate an amicable

settlement or expedite the trial of a case


1. It is of great assistance in ascertaining the truth and preventing perjury

because the witness is examined while his memory is still fresh, he is
generally not coached, he cannot at later date contradict his deposition,
and his deposition is preserved in case he becomes unavailable;

2. It is an effective means of detecting and exposing fake, fraudulent and

sham claims and defenses;
3. It makes available in a simple, convenient and often inexpensive way
facts which are otherwise could not have been proved later;

4. It educates the parties in advance of trial and on real values of their

claims and defenses, thereby encouraging settlements out of court;

5. It expedites the disposal of litigations, saves the time of the court and
helps clear the dockets;

6. It safeguards against surprise at the trial, prevents delays, simplifies the

issues, and thereby expedites the trial; and

7. It facilitates both the preparation and the trial of cases

Depositions Pending Action

By leave of court after the jurisdiction has been obtained but before the
answer is filed and the issues are joined

Without leave of court after the answer was filed

Deponent may be examined regarding any matter not privileged and is

relevant to the subject of the pending action

May be used against any person present or represented at the taking of the


Actions may be dismiss

Contempt of court

Default of disobedient party

Payment of reasonable expenses

Arrest of disobedient party

Refusal to allow the disobedient party of support to its defenses

Striking out of the pleadings of the disobedient party


Order of Trial

Plaintiff presents testimonial evidence

Defendant cross-examine the plaintiff’s witness

Plaintiff formally offers documentary evidence

Defendant objects or comments on the documentary evidence

Evidence in nullity cases can only be presented to the judge


Common question of fact and/or law

To avoid multiplicity of suit

Expedite the trial

One judgment

Before trial commences


To avoid prejudice

Trial by Commissioner

Based on the agreement of the parties

By referral

Commissioner includes auditor


Long account
Taking of account is necessary

Question of facts other than those set in the pleadings and trial

Can be held after judgment or during the execution of judgment

Commissioner becomes an officer of the court

Powers of Commissioner

Regulate hearing

Can issue subpoena

Can swear witness

Can rule on the admissibility of evidence, unless disallowed

The court may adopt the report of petitioner in toto or just a part of it or
not even a part of it


Rule 36

A judgment or final order determining the merits of the case shall be in

writing and personally and directly prepared by the judge, stating clearly
and distinctly the facts and the law on which it is based, signed by him, and
filed with the clerk of court

It is deemed a decision after it was submitted to the clerk of court,

otherwise it is just a draft

Dispositive portion is the subject of execution

Body of decision contains the facts and the law and opinion of the judge
(obiter dictum)

Motion to Approve Compromise Agreement

Compromise Judgment

Motion to Set Aside the Compromise Agreement

Motion to Set Aside the Compromise Judgment

Appeal (if denied)

*Or Have it Annulled on grounds of lack of jurisdiction, due process,

extrinsic fraud

Interlocutory orders need not need to comply on the requirements of

stating the facts and law where it was based

Judgment must go with the pleadings filed, if it is not raised in the issue, the
court cannot tackle it in the decision unless it was openly discussed during
the trial

Motion for Clarificatory Judgment (when the judgment is sketchy, but

cannot be set aside because the judgment is not void and it is already final)

The date of finality between parties starts to run after such party received
the judgment

Several Judgments is proper only when the liabilities of every parties can be
clearly distinguished from each and every party (joint liability-applicable,
solidary liability-not applicable)

Separate Judgments (in case of legal separation, partial judgment can be

rendered on custody and support based on compromise agreement, but
the legal separation shall be litigated)

Only SC can issue minute resolution and consider it a decision on merits

Rule 37

Motion for New Trial/Reconsideration

Must be file within the reglementary period (15/30 days in multiple
appeals because there is a need of record of appeal)

File in the court of origin

Motion for New Trial

Based on FAME+Affidavit of Meritorious Defense

Newly discovered evidence after trial that will alter the course of trial

Motion for Reconsideration

Facts and laws that do not justify the decision must be stated

Evidence is not sufficient

Not based on facts and law

No need of affidavit of meritorious defense

Extrinsic Fraud

Pro forma pleadings is allowed in motion for reconsideration

Pro forma pleadings (i.e. no notice of hearing) does not toll the
running of prescriptive period

Contents of Motion

Affidavits of merits (a)

Affidavits of witnesses (b)

Motion for new trial if granted will result to new trial

Motion for reconsideration if granted will result to new judgment

Partial Reconsideration / New Trial – rest is final and executor

Rule 38
Refer to judgments, order, and other proceedings

Filed in the court of origin

Petition for Relief from Denial of Appeal

Extra-ordinary writ

Cannot be interrupted or extended


Time of filing

Within 60 days from knowledge of judgment and not more than 6

months after the entry of judgment


Meritorious Defense

It is not an initiatory pleading but a remedy

It is a petition not a motion

It must be verified but does not need to be accompanied with Certificate of

Non-Forum Shopping

Two Stages

To determine whether the judgment will be set aside

If yes, hearing on the merits of the case

If no, petition is dismissed

Petition of Relief from Judgment is not allowed in CA and SC


 Execution is the remedy provided by law for the enforcement of judgment

 Writ of Execution is a judicial process issued to sheriff authorizing the sheriff to
execute the judgment
 Writ of Execution may be a matter of right or motion of the winning party
 Final judgment – end of litigation, the court has nothing more to do
 (writ of execution is discretionary)
 Final and Executory Judgment – after the lapsed of the reglementary period to
 (writ of execution is a matter of right)
 A writ of execution can be issued if the judgment is final and executory
 Exceptions to the general rule that it can be issue as a matter of right
 Unjust
 Equitable grounds
 Preliminary injunctions prayed before was issued
 Judgment was novated
 Judgment is dormant (not executed within 5 years)
 It is always the trial court that will issue the writ (court of origin)
 It is the dispositive portion that is controlling and executable
 Motion to Quash the Writ of Execution if it is inconsistent with the judgment
(i.e. there is no exemplary damages in the decision but the writ has exemplary
 Petition for Relief of Judgments, Orders and other Proceedings is the remedy
in case of extrinsic fraud
 A writ of execution may be issued on an interlocutory order in case of support
pendente lite if the other party does not comply with the interlocutory order
 Stay of Discretionary Execution is not allowed if the writ of execution is a
matter of right
 Stay of Discretionary Execution is allowed if the writ of execution is a matter of
discretion by filling a supersedeas bond
 There is no need of supersedeas bond on final and executory judgment
 Judgments on injunctions, receivership, accounting, support, and other
immediately executory orders cannot be stayed
 Section 3 is discretionary
 Section 4 is mandatory, cannot be stayed pending appeal
 Execution by motion is within 5 years from the entry of final judgment
 Execution by independent action is after the lapse of 5 years but within 10
 The decision of Court of Appeals is not immediately executory (JBL Case)
 In computing the time, exclude the time when the judgment was stayed
because of the agreement of the party or dilatory tactics of the losing party
(Republic Case)
 If the judgment obligor died after the entry of judgment but before levy of his
real or personal property and the case involves real action writ of execution
will still be issued
 If the judgment obligor died after the entry of judgment but before levy of his
real or personal property and the case involves money claim (personal action)
writ of execution will not be issued
 File it as a claim to the estate
 If the judgment obligor died after levy, writ of execution will be issued
 If the obligor died before judgment in a money claim, proceeding will continue
against the legal representatives of the obligor
 Execution of judgment will be claim to the estate of the obligor
 In cases of tort, the action survives even after the death of the parties
 In Sec 8, the writ of execution must specifically state the amount to be
 Levy pertains to real properties
 Garnishment pertains to bank deposits
 Judgment maybe for money (Sec 9), Specific Act (Sec 10), Special Judgment
(Sec 11)
 Sec 11 refers to performance of special acts like support
 Contempt is remedy available in Sec 11
 Disobedient judgment debtor can be held liable for contempt in special
judgment (Sec 11)
 Purchaser shall have all the right after the levy only
 In levy the sheriff sets apart the property of the judgment debtor, no third
person involved
 In garnishment the sheriff serves the notice of garnishment to the garnishee
who is a third person
 An attachment is a provisional remedy, the essence of which is to ensure that
a property of the would be judgment debtor will satisfy the judgment of the
court (not available in all cases)
 Property exempt from execution, must be raised as defense in order to be
 Must be connected from occupation
 Return of the writ is the report of the sheriff to the court
 Life of writ is for 5 years
 The importance of notice is to give judgment obligor to have the chance to
redeem his property
 If the notice is not faithfully followed, it can be set aside
 The remedy to exclude property of a third person from being levied upon is to
execute an affidavit (terceria), or for the judgment oblige to post a bond to
indemnify the sheriff
 Remedies in Sec 16 is to make an affidavit terceria, post a bond (judgment
oblige), go after the bond within 120 days, and independent action if a
stranger to the case (Mariano v. CA)
 Public auction must be preceded with a notice which must be faithfully
followed, and auction is called off if the judgment debtor pays off before the
auction sale
 Judgment obligor cannot participate on auction sale
 Judge, lawyers, and other court officials cannot bid on the auction
 If the sale is irregular (i.e. notice was not followed), it can be set aside
 Judgment obligee can bid but need not pay the amount of his bid if it does not
exceed the amount of debt, unless if there is a third party claim, judgment
obligee should pay in cash
 Adjournment of sale – to any date or time as agreed upon, or from day to day
 Certificate of sale is not required if the property is capable of manual delivery
 Certificate of sale is required in case of personal property not capable of
manual deliver (i.e. a house erected in a lot not owned by the owner of the
 Deed of Sale will be executed only after the lapse of one year for a judgment
debtor to redeem his property, in the meantime certificate of sale will be the
evidence of sale
 Certificate of sale must be annotated to the title of the real property for the
prescriptive period of one year to run
 No redemption in sale of personal property
 The real property sold can be redeem by the judgment debtor (includes his
successors and assigns) or the redemptioner who has a subsequent lien
(creditor with lien)
 Redemptioner has 1 year to redeem if he is redeeming for the first time and 60
days if he is redeeming it from another redemptioner
 Judgment obligor can sell his right to redeem his real property
 Right to redeem cannot be subject to levy if it will defeat the purpose of
 But an unexercised right of redemption can be subject to levy (junior
encumbrancer) because the judgment obligor can still redeem it within a year
 One of the solidary debtors cannot be considered as redemptioner because
there is no subsequent right
 To be a redemptioner, the lien must be other than and subsequent to
judgment where the property is sold
 The one year period is equal to 360 days only (Civil Code)
 Once the judgment obligor exercise his right to redeem, the redemptioner
cannot exercise his right to redeem
 The right of redemption is alienable right but cannot be subject of levy by the
judgment obligee in the same case
 The payment must be in whole amount
 Offer to redeem is not equal to redemption
 Offer must be accompanied with the tender of payment
 Proof must be presented if it is the redemptioner who is redeeming
 Proof is not needed if it’s the judgment debtor who exercises the right to
 The right to exercise the option what property to be levied must be exercised
before the levy (Solar v. Inland)
 Judgment obligor retains the possession of the property within one year after
the execution sale
 Judgment obligee by way of injunction may petition to the court to restrain
the judgment obligor to commit wastage in the property
 Judgment obligor is entitled to the rentals and fruits of the property if the
property is in the possession of a tenant within the period of redemption
 The last redemptioner is entitled to the possession after the lapse of sixty days
from the last redemption if he redeemed it from another redemptioner
 Writ of possession cease to be ministerial if a third party is in possession of the
property who has an adverse claim to the property and the court must
conduct a hearing to determine the nature of the adverse claim
 Writ of Conveyance transfers the right of judgment obligor to the purchaser
 Deed of Conveyance is executed by the officer who made the sale (sheriff) or
his successor in office
 The purchaser may recover the purchase price from the judgment debtor if the
purchaser cannot take possession of the property after the deed of sale was
executed, or evicted from the property because of the irregularity in the
conduct of sale (defect on notice or publication), or there is a reversal of
judgment (annulment of judgment under Rule 47 within 4 years)
 The purchaser may sue the judgment creditor or may on motion and after
notice may the original notice revived this time in his name (substitution of
 If there are several defendants, reimbursement can be claimed if the property
sold exceeds the proportion of one of them, or one of them pays more than
his share, or if a surety pays
 Remedies in aid of execution
 Examination of judgment obligor when judgment unsatisfied (Sec 36)
 File a motion for the examination of judgment obligor to elicit
from him where are his properties
 Examination of obligor of judgment obligor (Sec 37)
 The debtor of the judgment obligor is summoned before the court
to elicit from him what properties the judgment obligor is under
its possession
 If the debt is denied, the court shall apply Rule 39, Sec 43
 File a case asking the court to allow you to sue the obligor
of the judgment obligor (this will make the judgment
obligee to become a real party in interest)
 If the debt is not denied, the court may order garnishment
applying Rule 39, Sec 36
 Enforcement of attendance and conduct of examination (Sec 38)
 By way of subpoena
 Only in the court within the province where the defendant
resides (remedy: take deposition)
 If only the writ was returned unsatisfied makes this remedy
available (Sec 37)
 Appointment of receiver (Sec 41)
 Obligor may pay execution against obligee
 Sale of ascertainable interest of judgment obligor in real estate
 If the interest can be ascertain without controversy
 Effect of judgment or final orders rendered by Philippine courts
 Judgment in Rem
 Specific thing
 Conclusive upon the title to the thing
 Probate of a will or letters of administration of estate
 Prima facie evidence of the death
 Judgment in Personam
 Doctrine of Res Judicata
 Final judgment or order (final and executory)
 Court has jurisdiction over the subject matter and the parties
 Judgment is on the merits
 When there is nothing else to be done
 Identity of the parties (same parties or same interests), subject
matter (the thing, the contract which is directly the subject of the
action), identity of causes of action (based on the same delicts
even if the remedies are different)
 Barred by former judgment (Rule 39, Sec 49 (b))
 Same parties, subject matter, cause of action
 Conclusiveness of judgment (Rule 39, Sec 49 (c))
 The evidence presented in the first case can be used in the second
case (Oropeza v. Allied Bank)
 Substantial identity of party but different causes of action the res
judicata applicable is “conclusiveness of judgment”
 What was established in the first case is conclusive in the second
 Minute resolution can be source of res judicata (Philippine Health
Providers v. CIR)
 Effect of Foreign Judgment
 Suit incapable of pecuniary estimation (Mijares v. Ranada)
 File a petition for enforcement of foreign judgment
 Enjoys presumption of validity and regularity
 Defendant has the burden of proof that there was no compliance of the
foreign law
 The nationality becomes essential only in the date of the decree of
divorce and not on the date of filing of the petition to divorce (Bayot v.
 The divorce decree is recognized but the legal consequences of the
divorce may be litigated again if there is a showing that the other party
was not given a chance to represent his side (Roehr v. Rodriguez)
 The judgment itself is the best evidence of judgment
 The judgment must be published
 The foreign judgment is a presumptive evidence of a right
 Foreign judgment, in order to take effect in the Philippines, the plaintiff
must file a case to enforce that foreign judgment


Rule 40
 An Ordinary Appeal is an appeal from a judgment of lower court on
questions of facts or law or mixed questions of law and facts
 MTC – RTC (original jurisdiction)
 Appellant v. Appellee
 Can be both appellant if both parties appeal
 File a Notice of Appeal with the court that rendered judgment or final order
 Notice of Appeal must contain:
o Parties
o Order
 Must served notice to the adverse party
 Appeals on Special Proceedings
o Notice of Appeal (within 15 days)
o Record of Appeal (within 30 days)
 Full names of parties
 Judgment and final order appealed from
 Chronological order, copies of pleadings, motions, related to
the appealed judgment
 Timeliness of the appeal
 Issue of fact raised and evidence
 Index if more than 20 pages
 Copies to adverse parties
 Ordinary appeal is a matter of right, all records are elevated,
 Petition for review is a matter of privilege, no records are elevated
 Payment of docket fee is with the clerk of court that render the appealed
judgment, non payment is ground for dismissal of appeal
 Sec 8
o RTC affirms – RTC will try it on merits

Rule 41

 Different modes of appeal

o Ordinary appeal (Rule 41)
 RTC – CA (questions of facts or law or mixed questions of law
and fact) (RTC exercising original jurisdiction) (Notice of
Appeal) (Serve copy to the adverse party) (15/30 days)
o Petition for Review (Rule 42)
 RTC – CA (questions of facts or law or mixed questions of law
and facts) (RTC exercising appellate jurisdiction) (Verified
Petition with CA) (Serve copy to the adverse party and RTC) (15
o Appeal by review (Rule 45)
 RTC – SC (questions of law only) (Verified Petition with SC)
(Serve copy to the adverse party and lower court) (15 Days)
 What cannot be appealed
 Fresh 15 day Rule
 Appeal from Rule 65 should be by Ordinary appeal because Rule 65 is a
special independent civil action
 MR / MNT must contain a notice of hearing and proof of service

Rule 42

 Perfection of appeals
o As to the Party – upon filing of notice of appeal
o As to the Court – after the appeals is perfected as to the party
appealing and after the period to appeal expired and can exercise
residual power so long as the records were not transmitted to the
appellate court
 Prior to the transmittal of records, courts can exercise residual powers
 Appeal can be withdrawn, but he cannot in order to revive jurisdiction of
the court file an MR or MNT
 Appeal by notice of appeal – court loses jurisdiction over the case
 Appeal by record on appeal – court loses jurisdiction over the subject
matter which was being appealed
 To perfect an appeal, the following must be complied [RP v. Sps. Luriz (26
January 2007)]
o Notice of appeal
o Serve a copy to adverse party
o Payment of docket fee
 No need to file a second notice of appeal
 In cases of penalty of death or reclusion perpetua, ordinary notice of appeal
to CA, automatic review to SC (People v. Abon, GR 169245)
 Requirement as to Form
o Full name of parties
o Timeliness of appeal
o Issues involved
o Arguments
o Certified true copies of the judgment or order being appealed
o Relevant pleadings
o Verification and Certification of Non-Forum Shopping
 Reply and Rejoinder is not a matter of right (wait for court order if required
to file)
 RTC records need not be elevated to CA (discretionary on the CA) because
the RTC may still issue a writ of execution pending appeal

Rule 43

 Instances when CA can entertain pure questions of law only

o Rule 42 (ruling of the RTC exercising appellate jurisdiction)
o Rule 43 (ruling by quasi judicial agency)
 Even appealed, it will not stay the award, remedy TRO and writ of
preliminary injunction
 Appeal is taken by filing a verified petition to CA, pay the docket fees, and
proof of service to the adverse party and the lower court/agency that
render the judgment (do not implead the court or tribunal)
 Contents
o Name of Parties
o Facts and issues
o Duplicate original and certified true copies of the assailed resolutions
o Copies of relevant documents
o Verification and Certification of Non-Forum Shopping
 Action by the CA
o No summons will be served
o CA may require respondent to file a comment
 Effect of appeal
o Award is not stay unless ordered by CA
 Copies of the pleadings need not be certified true copies

Rule 44

 Appellant v. Appellee (if both parties appealed, both are appellants)

 Appellant’s Brief – 45 days within which to file from the notice of the clerk
of court of the completion of transmittal of records
 Appellee’s brief – 45 days from the receipt of the copy of appellant’s brief
 Appellant’s reply brief – 20 days from the receipt of appellee’s brief
 Failure to file appellant’s brief is a ground for dismissal
 Failure to file appellee’s brief is not a ground for dismissal
 Parties cannot change their theory on appeal, exception is if there will be
no further presentment of evidence (Lianga Lumber v. Lianga Timber)
 Parties that did not appeal will not be inured to the judgment on appeal
unless there is a community of benefit that will necessary inure to them
 Gov’t of Kingdom of Belgium v. CA (GR No. 164150, April 14, 2008)
o Power to dismiss the appeal on the ground of failure to file
appellant’s brief is discretionary and not mandatory so long as it is
not whimsically exercised
 Banco De Oro v. Transipek (GR No. 181235, July 22, 2009)
o Law of the Case has been defined as the opinion delivered on a
former appeal
 Maricalum Mining v. Remington Industrial (GR No. 158322, February 11,
o Commonality of interest means an appeal of one is appeal of all if
there is vicarious liability

Rule 45

 15 days, payment of docket fees, discretionary

 Purely legal
 Petition for extension of time is allowed
 Exceptions where questions of facts can be reviewed
o Conclusions is grounded on speculations, surmises and conjectures
o Manifestly absurd or impossible
o Grave abuse of discretion of the facts
o Misapprehension of facts
o Conflicting findings of facts between RTC and CA
o RTC exercising appellate jurisdiction under Rule 42 and 43, appeal is
to CA even on purely questions of law
 Differences of Rule 45 and 65
o Dismissal in 45 is final and executory, dismissal in 65 can be re-filed if
still within reglementary period
 Rule 65 cannot be a substitute for lost of appeal (41,42,45)

Rule 46

 Applies to Certiorari, Prohibition, and Mandamus

 Service of order not of summon is the mode of acquiring jurisdiction
 Respondent cannot be held in default for failure to file answer

Rule 47

 Applies to annulment of judgment, final orders, resolutions

 Grounds
o Extrinsic fraud (4 years from discovery)
o Lack of jurisdiction (laches – inexcusable delay to exercise once right -
or estoppel)
o Denial/Absence of due process (Springfield case)
 Contents
o Verified petition
 Action by Court
o Dismissed if there is no substantial merit
o Motion to dismiss may be filed
o Writ of preliminary injunction may be issued
o Reception of evidence may not be referred to RTC judge
 Petition for annulment of judgment must say why not able to avail of the
other remedies and should not be attributable to the petitioner
 Rule 47 may still be availed even the judgment was fully implemented
 If annulled for lack of jurisdiction – re-file to proper court
 If annulled for lack of jurisdiction over the person – file to the same court
after acquiring jurisdiction to the person and provided that the court has
jurisdiction over the subject matter
 Annulment of MTC orders must be file to RTC as an ordinary civil action,
RTC orders shall be annulled in CA

Rule 48

 Preliminary Conference in the Court of Appeals

 In original actions or in cases of appeals (motion for new trial on the ground
of newly discovered evidence)
 It is the CA who will call the conference
 Mandatory

Rule 49

 Oral Arguments before the Court of Appeals

 The CA or by petition of the party
 Only one counsel will argue, unless authorized to have more than one
 No notice of hearing on the motion is required (CA and SC), hearing on the
motion is discretionary
 Objection to the motion may be filed within 5 days from service
Rule 50

 Dismissal of Appeal
 Grounds are not automatically dismiss the appeal, it is within the discretion
of the court to grant dismissal
 Wrong mode of appeal, case dismissed
 Appeal may be withdraw as a matter of right before the appellee’s filing of
the appellee’s brief
 Filing means the filing in court and not the service to the appellant
 CA can received evidence
 SC will not receive evidence but it can re-evaluate the evidence falling on
the exceptions (misapprehension of fact)
 Promulgation of judgment is the delivery of the signed copy to the clerk of
 Unpromulgated judgment is not a judgment in contemplation with the law
 Execution of judgment if immediately executory there is no need to wait for
15 days to file motion for execution
 Motion for Execution pending appeal may be filed before the RTC if the
records are still in the RTC, otherwise to the CA if the records had been
transmitted to the CA, the CA will just issue an order to RTC to execute the

Rule 52

 Motion for Reconsideration in CA

 Within 15 days from the receipt of order
 No second motion for reconsideration is allowed

Rule 53

 Motion for New Trial may be filed anytime after appeal from the lower
court has been perfected and before the CA loses jurisdiction over the case
 The only ground is newly discovered evidence
 Newly discovered evidence means an evidence which could not have been
discovered prior to the trial in the trial court and which can change the
outcome of the case
 Shall be accompanied by affidavit
 CA may received evidence in motion for new trial
 Corroborative and cumulative evidence is not a newly discovered evidence

Rule 56

 Original Cases cognizable by SC

o Petitions for certiorari, mandamus, quo warranto, habeas corpus
o Petitions affecting ambassadors and other ministers
o Petitions for discipline of judges and attorneys
 Appealed Cases
o Petition for Review on Certiorari
o Grounds for dismissal
 Failure to file within the reglementary period
 Etc
 Cases to be decided en banc
o Supreme Court Circular No. 2-89


 Temporary remedies only

 Ancillary actions, need a principal action except in support pendente lite
 Kinds of Provisional Remedies
 Preliminary Attachment
o May be availed at any stage but before entry of final judgment,
post bond, can be dissolved by counterbond
 Preliminary Injunction
 post bond, can be dissolved by counterbond
 Receivership
o May be availed even after final judgment, post bond no
 Replevin
o Must be availed before the defendant filed an answer, post bond,
can be dissolved by counterbond
 Support Pendente Lite
o May be sought anytime even first time on appeal, no bond

Rule 57

 Purposes:
o is to seize the property of the debtor in advance of final judgment
and to hold it for purposes of satisfying the said judgment
o to enable the court to acquire jurisdiction over the action by actual
or constructive seizure of the property in those instances where
personal services of summons on the creditor cannot be affected
(action quasi in rem)
 Insolvency is not a ground for the issuance of the writ of preliminary
 Must be for the recovery of a specified sum of money
 Can be avail by any party, even a defendant can apply for a writ of
preliminary attachment in connection with his permissive or compulsory
counter claim
 If the judgment is final and executory, do not ask for a writ of preliminary
attachment rather for a writ of execution of judgment
 Can be issued ex parte, affidavit and bond required, notice and hearing
discretionary to the court
 Stages
o Order granting the writ of attachment (can be avail even before the
court acquire jurisdiction over the defendant)
o Issuance of writ of attachment (can be avail even before the court
acquire jurisdiction over the defendant)
o Implementation of writ of attachment (the court must have
jurisdiction over the defendant, can be serve together with the
service of summons and copy of complaint to the defendant)
 Exceptions: Rule 57, § 5, ¶ 2
 Applicant’s bond
o Amount to be determined by the court
o The bond will pay all the costs which may be adjudged to the adverse
party and all damages by reason of wrong attachment
o Motion for reduction of partial discharge if the attachment is
excessively high
 Manner of attaching
o Same manner in execution
 Discharge of Writ of Attachment
o Counterbond was posted or a cash deposit was made
o Attachment was improper or irregularly issued
o The attachment is excessive
o The property is exempted from execution
o Lost is case
 Counter-bond
o Counter-bond responds for the payment of the judgment covered by
the attaching creditor regardless of the wordings of the bond
o Applicant’s bond responds for damages resulting from the
 An order for execution pending appeal can be enforced against the
 Merits on the complaint are not triable in a motion to discharge an
 Rule 39, § 16 is identical
 Writ of execution is unsatisfied, the counter-bond will be automatically
attached without any need to file separate pleading
 Damages must be prove in order to go against the applicant’s bond
 Cannot be subject of an independent action (Rule 57, § 20)
o Exceptions
 Principal case was dismissed and damages were suffered by
reason of the attachment
 Damages suffered by third party
 Calderon v. IAC 155 SCRA 531
Rule 58

 Preliminary Injunction is an order requiring a party or court, agency or a

person to refrain from particular act or acts (Prohibitive Injunction)
 Preliminary Mandatory Injunction is an order requiring the performance of
a particular act or acts
o Requisites:
 Invasion of right
 Urgency
 May be granted at any stage of the action before judgment or final order
 Validity
o Trial Court – 20 days
o Court of Appeals – 60 days
o Supreme Court – until further order
 If granted ex-parte by the presiding judge on exceptional cases the validity
is 72 hours only
 The purpose is to preserve status quo
 It is a proceeding in personam (binding between the parties only)
 You can file a complaint for injunction asking for TRO or Preliminary
 The grounds must be stated in the application for preliminary injunction
 Preliminary Injunction is an interlocutory order (not appealable, remedy if
there is grave abuse of discretion – Rule 65)
 Final Injunction is to permanently restrained a party, final order after trial
 Cannot be granted ex-parte
 Order granting permanent injunction is subject to appeal
 Injunction (Rule 58) is different from Prohibition (Rule 65) which is directed
upon the court or tribunals, and the issue is jurisdiction and it is always the
main action (Original Special Action for Prohibition)
 Injunction is in the jurisdiction of RTC
 Writ of Preliminary Injunction may be granted where the action is pending
 SC cannot entertain an original action for Writ of Preliminary Injunction but
can be entertained in its appellate jurisdiction
 Limitation of granting WPI is within the territorial jurisdiction of the court
where the action lies
 WPI cannot be issued in labor cases (exclusive jurisdiction of NLRC)
 No WPI against SSS, GSIS, etc
 RTC cannot issue a WPI against other RTC, exception if it will not affect
third person estranger to the suit (accion terceria)
 Inferior courts can issue WPI in forcible entry or unlawful detainer under BP
 No injunction in PD 605
 No injunction in government projects (RA 8975)
 WPI is applicable in continuing acts
 Grounds (memorize)
o Entitlement to the relief
o Will result to injustice
o Some acts are in violation of the rights of the applicant that will
tender the judgment ineffectual
 Requirements
o Verified application
o Bond, unless exempted
o TRO and/or WPI raffle must be in the presence of adverse party
 Exceptions same in WPA (cannot be served personally, etc.)
 TRO is a restraining order which may be issued upon filing of injunction
until the hearing for a WPI can be had
 TRO (20 days) summary in nature
 Grant or denial of TRO does not mean automatic grant of WPI
 Status Quo Order – to maintain the last, actual, peaceable and uncontested
state of things that preceded the controversy
o No need for bond
o May be granted motu propio on equity
o Only available in the Supreme Court
 The exception to the rule that PI cannot be issue without notice is if there is
Great and irreparable injury (not susceptible of mathematical computation)
 If not resolved within 20 days, TRO is deemed vacated and not extendible
 CA no ex-party application
 Executive Judge will issue the order ex-party TRO valid for 72 hours, not the
presiding judge where the case lies
 Service instead of Notice (service is from the receipt of summons)
 Applicant’s bond amount depends upon the sound discretion of the court
conditioned to address all damages that may be sustained by the adverse
party by reason of the issuance of TRO/WPI
 Remedies
o Certiorari against preliminary injunction
o Appeal against permanent injunction
 When refuse
o No ground or insufficient bond
o Counter-bond (to go against the bond Sec 20, Rule 57)
 Issuance is different from dissolution

Rule 59

 Receivership is the remedy, receiver is the person appointed by the court

which need not necessary be the party applying for receivership
 Remedy if the property is in danger of being wasted or dissipated or
materially injured
 The purpose of the receiver is to take care of the property
 Can be availed after judgment to aid if the judgment is returned unsatisfied
or the judgment obligor refuses to apply his property
 Can be availed pending appeal to be decided by the court of origin
exercising its residual power
 Receiver becomes a court officer, loyalty is to the court not to the party
 May be a principal or ancillary action
 Receiver is appointed by the court for the purpose of preserving the
property, must be sworn in, and act with diligence of a good father of the
 Applicant shall post a bond conditioned to be pay to the adverse party
 Appointment of a receiver is an interlocutory order and cannot be
compelled by mandamus or certiorari except when there is a grave abuse
of discretion
 Applicant must have interest on the property
 Property is in imminent danger
 Receiver not stayed by appeal (like in injunction, attachment, accounting,
 No lien created
 Bond answer to damages that may be sustained by the other party
 Counter-bond is conditioned upon the payment of damages that may be
suffered by the applicant
 Denial or Lifting
o Without sufficient cause
o Adverse party post a bond
o Bond by applicant is insufficient
o Counter-bond is insufficient
 Powers of Receiver
o Shall have the power to defend and sue in his name (disinterested
person who can bring action) in the administration and preservation
of the property but do not include act of conveyance
o Divide money and other property
o May invest money if allowed by the court
 Sanctions
o Contempt
o Damages
o Liable for the property
 When terminated
o If no longer justified, but there must be proper accounting
 Receiver must file a bond to answer if he commits malfeasance
 Judgment of receivership not stayed by appeal
 There is difference between Rule 39 (any property can have a receiver) and
Rule 59, Sec 1 (subject of the case only can have a receiver)

Rule 60

 Replevin is available when the purpose is to recover possession of personal

property unjustly detained
 Must be file before the filing of answer of the defendant
 Recovery of damages is only incidental, the main purpose is recovery
 Both party may avail this remedy
 Defendant must be in actual possession
 Rule 60 is different from Rule 57, Sec. 1 (c) where the property is only
incidental or in the possession of a third person
 Extends to personal properties only, but not applicable if the property is in
custodia legis
 Requirements
o Ownership and entitlement of property
o That the property is wrongfully detained
o That the property has not been distrained or taken for a lawful
purpose (tax, fine)
 Bond
o Double of the value of the property
o Intended to indemnify the defendant
 Defendant is entitled to the return of the property
o If seasonably filed a redelivery bond
o Plaintiff’s bond is insufficient
 Claim by third party may be made in a separate action

Rule 61

 Support Pendente Lite is availed at the commencement of the action and

before judgment
 Must be file before the RTC
 Verified application
 Grounds
o When, where, you did it!
o Must state the needs of defendant and the ability of the giver
 5 days to file a comment accompanied by affidavits, depositions or other
authentic documents
 Both parties can ask for support
 Will not be granted (i.e. case of adultery, impotence, etc)
 Third party who paid the support can ask for reimbursement
 Remedy is certiorari (Rule 65) it is not appealable because it is an
interlocutory order
 Support can be asked in criminal cases


 Initiated by complaint
 Initiated by petition
 File in MTC, RTC, CA, SC
 Govern by the general rules on venue unless otherwise provided

Rule 62

 Interpleader – if there is a conflicting claims between different parties over

the same subject
 Interpleader is an original special civil action different from intervention
which is only an ancillary action
 Court shall issue an order requiring the parties to interplead

Rule 63

 Any person may file a petition for declaratory relief

 No need for a cause of action
 There must be no breach or violation of the statue being complained of
 Purpose is for declaration of right
 File before the RTC, not SC
 Other similar remedies
o Action for reformation of instrument
o Action to quiet the title of the real property or remove the clouds
o Action to consolidate ownership under Art. 1607 of the Civil Code
 Subject matter
o Contract
 Deed
 Will
 Contract
 Other written agreement
o Law
 Statute
 EO
 Regulation
 Ordinance
 Issue
o Validity and Construction
 Relief
o To declare the rights and duties of the petitioner
 Requisite
o Subject matter must be the one mentioned
o Terms of document and validity is doubtful
o No breach
o Actual judicial controversy (ripe for judicial consideration)
o Adequate reliefs not available
 DR not available in unilateral actions like declaration of citizenship and
court decisions
 Ripening of seeds – there must be a threatened litigation in the immediate
issue which litigation is imminent unless prevented by the DR
 Parties
o All persons who have or claim
 Non-joinder of parties is not a jurisdictional defect
 Notice to SOLGEN is required
 First paragraph – discretionary to court to declare rights
 Second paragraph – mandatory to court to declare rights
 The judgment in DR does not essentially entail any executional process as
the only relief to be properly granted therein is declaration of right
 Third party complaint cannot be entertained in DR since no material relief is
 Intervention allowed
 Counterclaim allowed
 Petition for DR can be converted to Ordinary Civil Action

Rule 64

 COMELEC and COA only

 Applies only review of decisions, final order, resolutions of COMELEC and
COA only
 Interlocutory order not included
 Mode of review may be brought to SC under Rule 65
 Time to file is within 30 days from notice of judgment or final order or
resolution sought to be reviewed
 Filing of Motion for New Trial or Motion for Reconsideration (if allowed by
rules of the commissions concerned) shall interrupt the running of 30 days
 Neypes case (fresh 15-day period) does not apply
 If motion was denied, the remaining period of the 30 day period shall be
the remaining time for filing, but in no case it shall be not less than 5 days
(same as the motion for bill of particulars)
 Material Data Rule (timeliness of filing)
 Form of Petition and Fees
o Name of parties
o Implead the commission involved
o Facts, issues, argument
o Material dates
o Prayer
 Documents to be appended
o Certified true copy of the assailed decision
o Copies of relevant documents
o Certification of Non Forum Shopping
o Proof of Service to the COA/COMELEC and adverse party
o Pay the filing fee
 Subsequent Action
o SC issue Order to Comment which must be filed within 10 days from
the receipt of the order
o Aggrieved party will file a comment
o Public respondent will only file a comment if ordered by the SC
 Effect of filing
o Will not stay the judgment or abate the proceedings (remedy is to
seek for TRO/WPI)
 Findings of fact of COA/COMELEC is final and non-reviewable provided that
it is backed by a substantial evidence
 Neypes Ruling not applicable
 Petition must be verified and implead the commission concern
 Interlocutory orders and division orders are not reviewable

Rule 65

 Certiorari
o Original Special Civil Action (this is not a mode of appeal)
o Against any tribunal, board, officer exercising judicial or quasi-judicial
power and not ministerial duties (remedy-mandamus)
o There must be a grave abuse of discretion amounting to lack or
excess of jurisdiction over the subject matter
o There must be no appeal or any plain, speedy and adequate remedy
o Petition must be verified
o MR is required before a petition under Rule 65 is allowed
o Purpose is to annul the judgment
o There must be a certified true copies of the orders denying the MTD
and MR
o Append other relevant documents
o Get a TRO to stop the proceedings in the lower court because it will
not stop the proceedings in the lower court
o RTC, CA, SC concurrent jurisdiction
o Must be accompanied by Certificate of Non Forum Shopping
o Filing of petition under Rule 65 does not stop the running of
prescriptive period to file an answer (file an answer ad cautelam)
o Intended to correct an act performed by the respondent and extends
only to discretionary acts
o Judicial function – power to determine the legal rights of the parties
and undertakes to determine these questions and adjudicate upon
the rights of the parties
o Without jurisdiction – no legal right to determine the case
o In excess of jurisdiction – there is grave abuse of discretion where
respondent acts in a capricious, whimsical, arbitrary or despotic
manner in the exercise of his judgment
o It is an extra-ordinary remedy, if appeal is available, Rule 65 does not
lie (exception is if the appeal in not adequate or speedy remedy, or it
is for special consideration [novel issues])
o Not remedy for loss of appeal or error in judgment
o Pro forma rule not applied in MR or interlocutory orders
 Exceptions are patent nullity, urgent necessity, useless,
deprived of due process, relief from judgment of arrest in
criminal cases
o Questions of facts and law cannot be raised, only issue is whether
there is grave abuse of discretion or lack or excess of jurisdiction
 Prohibition
o To command the court a quo to desist from further proceedings in an
action or matter specified therein
o Preventive remedy, lies against judicial and ministerial acts
o Accompanied by TRO/WPI
o Administrative remedies must be exhausted in order to be availed
against officers in the executive department
o There must be no other plain, speedy, adequate remedy available
o MTD denied – remedy is Prohibition not Mandamus because the
court exercises judicial function not ministerial function
 Mandamus
o Commanding a tribunal, corporation, board, officer to perform an act
which it unlawfully neglect
o Exhaust administrative remedies
 Damages may be awarded in Rule 65
 When filed
o 60 days from notice of judgment, order, resolution
o 60 days from the denial of motion for new trial or reconsideration
 Where filed
o RTC – lower courts, corporations, officers, board
 No prior service of a copy thereof to the adverse party
o CA – quasi-judicial agencies
 Must have proof of service
o SC – novel issues
 Must have proof of service
 Parties
o Public respondent – nominal party
o Private respondent – indispensable party
o A party not party to the case may file a comment
 Respondent is required to submit memoranda
o In the RTC hearing on memorandum
o In CA and SC no hearing on memorandum
 Will not interrupt proceedings
 Petition for TRO/WPI
 Rule 65 can be availed in criminal cases but only to the civil aspects of the
case (order granting demurrer to evidence can be questioned via Rule 65)

Rule 66

 Quo Warranto proceedings can be instituted in the RTC, CA, SC

 Can be instituted by the SolGen, Relator, Individual Party
 Remedy to try disputes with respect to the public office
 Individual may file a quo warranto case on his own under Section 5, Rule
66, no need for SolGen or leave of court but must aver his entitlement to
the position
 Individual may ask the SolGen to file a case for quo warranto with the
permission of the court (Sec 3-4, Rule 66)
 Parties: usurper
 Venue: RTC (where the respondent resides if filed by the individual) (RTC of
Manila if filed by SolGEn) CA, SC
 Period: court may reduce period of filing
 Judgment
o If guilty
 the usurper is ousted
 damages can be recovered
 winner can demand accounting (contempt)
o If not guilty
 Limitations
o Commenced within 1 year after the cause of such ouster
o Damages may be brought only for 1 year after the entry of judgment
 Administrative remedies will not toll the running of 1 year period to file quo
 Time is of the essence

Rule 67

 Expropriation
 Deed of Absolute sale if no opposition from the private owner
 Expropriation Proceedings if there is opposition
 Venue of action is where the property lies or one of the properties lies
 Preliminary Deposit
o Plaintiff can enter in the property
o The assed value of the property for purposes of taxation
o Will form part of payment of just compensation
o Can stands as indemnity for damages
o Discretionary on the part of plaintiff, mandatory only in case the
plaintiff wants to take possession of the property
o Ministerial duty to the court to issue writ of possession after the
deposit (remedy if denied by court is MR then Mandamus)
o Depository bank is PNB, 10% of the compensation
o Mere notice, no need of hearing suffices for immediate entry to the
 Defenses and Objections
o No Objection
 Entitled to all notices
o Objection
 File answer
 No third party complaints
 Objections not raised is deemed waived but in the higher
interest of justice, amendment can be done within 10 days
o Non filing of answer in the issue of just compensation will not result
to declaration of default
 Order of Expropriation
o Lawful right to take the property sought to be expropriated
o Upon payment of just compensation to be determined as of the date
of the taking of the property or the filing of the complaint, whichever
comes first
o Final order sustaining the right to expropriate can be appealed
o Order on Just Compensation can also be appealed
o 30 Days to appeal
 Ascertainment of Just Compensation
o Appointment of not more than 3 commissioners
 Commissioner must take oath
 Can received evidence
 Can administer oath
o Formula
 Fair Market Value + Consequential Damages = JC
 Consequential Benefits > Consequential Damages = Fair
Market Value is JC
o Payment of legal interest from the time of taking of the property to
the time of actual payment
 No need for MR (discretionary)
 GR 56378 NPC v. CA
 Issue on conflicting claims may be decided by the court handling the
expropriation proceedings (RP v. CFI of Pampanga)
 It must be used for the public use describe in the property
 Entry not delayed by appeal
o If reversed on appeal, restoration of property
o Determine the damages suffered by defendant
 Recording of judgment and must be registered to the RD to bind third
 Notes
o Barangay cannot expropriate
o File in RTC
o Implead all owners
o Consignation if there are multiple claims
o No need of expropriation if the owner has agreed to the sale

Rule 68

 Complaint shall set forth

o Date of execution of the mortgage
o Name and residence of the mortgagor and mortgagee
o Description of the property
o Amount unpaid
o Names and residences of persons claiming interest in the property
 Filed in RTC where the land is situated
 May bring personal action for the amount due instead of foreclosure of
suit, deemed waiver to foreclosure proceeding
 Parties to be joined
o Mortgagor
o Occupant of the mortgaged property
o Transferee or grantee
o Junior encumbrancers (necessary party)
 If not joined unforeclosed rights remain to him
 Equity of redemption not less than 90 days but not more than 120 days
 Susceptible of multiple appeals, must be filed with record on appeal
 No right of redemption except if with banking institution
 Issuance of Writ of Possession is ministerial unless there are other adverse
claims or the property is in possession of a third person
 If there are other claims, trial on ownership
 Motion of Confirmation of Sale
o Must have hearing on motion
 Consequences of Confirmation
o Cut-off of equity of redemption
o Registration of Final Deed of Sale to the RD
o Cancellation of title in the name of the mortgagor and issuance of
new title to the mortgagee or redemptioner
 Deficiency Judgment
o Allege
 the judgment
 that No right of redemption/equity of redemption exercised
 Sale
 Amount realized in the sale
o When rendered
 Upon motion
 If the foreclosure sale did not satisfy the judgment
o If motion is denied
 MR
 Mandamus
 If only third person mortgaged the property, only accommodated the
debtor, but did not sign the promissory note or assume any liability to the
debt, then in case of deficiency judgment, the third person in not liable for
the deficiency
 No deficiency judgment in extra-judicial foreclosures, remedy is to file a
case for deficiency judgment

Rule 69

 Involve multiple appeals, hence 30 days + record of appeal

 Allegations
o Nature and extent of title
o Adequate description of the real estate of which petition is
o Defendants
 Personal property can be partition
 First order is order of partition
o If all parties agreed to partition, no need for a commissioner
o Reduce the agreement in writing of the partition and submit to the
court for approval
o Record the agreement of the parties and the order of the court to
Register of Deeds where the real property is located
 Kinds of partition
o Voluntary, no need to go to the court
o Compulsory under Rule 69
 Venue
o RTC where the property is located, or if several properties in several
places, in the RTC of any of the places where the properties
 Right to partition do not prescribe (no one can be compelled to be a co-
owner perpetually)
o Exception acquisitive prescription
 Procedure after judgment
o Parties agree
 Submit deed of conveyance (agreement of partition)
o Parties disagree
 Appoint no more than 3 competent and disinterested
commissioner who will propose the partition
 The nature of action is in REM, to bind the interest of other persons
 The nature of the order of partition
o It is definitive
o It is appealable judgment
 Court to appoint 3 competent and disinterest commissioners
 Commissioners required in expropriation and partition
 Commissioner may sell the property if it is the best for all the parties,
which sell must be in a public sale
 Commissioner must submit a report
 Taxes is divided among co-owners
 Registration to the RD is essential to bind third parties

Rule 70

 Forcible Entry
o Possession is unlawful from the beginning
o Issue: who between the contending parties has better possession of
the contested property
o Venue: Municipal Trial Court, Metropolitan Trial Court
o Rule on Summary Procedure
o Instituted within one year from dispossession or from discovery of
dispossession in case of stealth
o No need of prior demand to vacate
o Allege: (1) prior physical possession of the property by the plaintiff;
(2) deprivation of said possession by another by means of force,
intimidation, threat, strategy or stealth
 Unlawful Detainer
o Possession is lawful in the beginning and becomes illegal after the
expiration of contract of lease
o Issue: who between the contending parties has better possession of
the contested property
o Venue: Municipal Trial Court, Metropolitan Trial Court
o Rule on Summary Procedure
o Within one year after the last demand
o Need of prior demand to vacate
o Allege: (1) prior physical possession of the property by the plaintiff is
not a condition sine qua non; (2) there is a withholding of possession
or refusal to vacate the property by a defendant after the expiration
of the contract of lease
 Accion Publiciana
o Issue: who has the better and legal right to possess, independently of
the title
o Venue: RTC
o Ordinary Civil Procedure
o After the expiration of one year but within the period prescribed in
the statute of limitation
 Accion Reinvidicatoria
o Issue: possession and ownership
o Venue: RTC
o Ordinary Civil Procedure
o Allege: (1) identity of the property; (2) plaintiff’s title to it
 Who may institute proceedings?
o A person deprived of the possession of any land or building by force,
intimidation, threat, strategy or stealth (Forcible Entry)
o A lessor, vendor, vendee, or other person
 It may be instituted against all kinds of land except agricultural land
(agrarian court)
 Manner of dispossession must be alleged, or it may be dismissed for lack of
 Issue of possession
o Possession de facto only and not de jure
o No res judicata on the issue of ownership
o The mere raise of issue of ownership will not divest the jurisdiction of
the court
 Rule 70, Sec. 2 applies only to unlawful detainer
o To pay or comply and to vacate
 5 days to vacate in case of buildings
 15 days in case of land
 Filing of action will be within one year from the demand to vacate
 Counting of days is by Article 13 of the Civil Code (1 year = 365 days; 12
months = 360 days)
 Demand is not required if
o Expiration of lease
o Enforcement of terms of contract
o Defendant is intruder not lessee
o Month to month lease (better to send demand to vacate to avoid
tacit renewal after 15 days from the expiration of lease)
 When deemed accion publiciana or accion reinvidicatoria
o No allegation on how they were able to enter the land
o Defendant refuses to vacate the land on the ground that he is the
lessee of plaintiff’s predecessor-in-interest
 How demand is made
o Personally on the defendant
o Written notice
o Posting of notice
o Serve by registered mail
 Regardless of amount to be recovered, the MTC has exclusive original
 In case of failure of the defendant to file Answer, No motion to declare
defendant in default but motion to render judgment base on pleadings
submitted is the remedy
 Failure of plaintiff to appear in preliminary conference, cause of dismissal of
the complaint
 Dates:
o Filing of complaint,
o 10 days to file answer from the service of summons,
o preliminary conference not later than 30 days after the last answer
was filed,
o record of preliminary conference order within 5 days after the
termination of preliminary conference
o filing of affidavits and position papers within 10 days from the receipt
of order,
o Judgment will be rendered within 30 days from the issuance of
record of preliminary conference order
 No need of hearing for the receipt of testimonial evidence and adjudication
is based on the pleadings
 Matter of ownership if passed upon by court is only provisional and cannot
be barred by res judicata
 Writ of Preliminary Mandatory Injunction may be filed within 5 days from
the filing of complaint
o If the appeal of defendant is frivolous or dilatory
o If the appeal of plaintiff is meritorious
 Judgment
o Plaintiff’s allegation is true, restitution of property, damages (arrears,
rents, reasonable compensation) no moral and/or exemplary
o Defendant’s allegation is true, payment of costs
o Will not bind title or ownership
o Will not bar future actions between the same parties on ownership
o Appealable to RTC
o Primary relief is recovery of possession, awards of damages is
incidental only (can award amounts more than the limit of its
 Execution
o Immediate execution if rendered against defendant
o To stay execution, defendant must
 Perfect an appeal
 Within 15 days, RTC
 File a superseadeas bond to be approved by the MTC
 By cash or surety in the MTC to answer the rents
 Make monthly deposit to the RTC acting as appellate court of
monthly rental, or at the rate determined by MTC
 To ensure the payment of rental
 Amount determined by the inferior court
 Payed on the date of payment according to the contract
or in the absence therof on the 10th day of every month
o RTC to CA or SC – immediately executor, cannot be stayed even with
the paying of rents and superseadeas bond
o Failure to pay monthly deposit pending appeal will result to the
transfer of property to the plaintiff but will not prejudice the appeal
o Execution pending appeal is governed by Sec. 8 of Rule 70 and not by
Sec. 2 of Rule 39

Rule 71

 Direct Contempt (Contumacious Acts)

o Summary in nature, no need for hearing
o Committed in the presence of or so near a court as to obstruct or
interrupt the proceedings before the same
o Includes disrespect toward the court
o Offensive personalities to other
o Refusal to be sworn in
o Refusal to answer as a witness
o Refusal to subscribe to an affidavit or deposition when lawfully
required to do so
 Penalty for direct contempt
o P2,000.00 or imprisonment of not exceeding 10 days or both
o P200.00 or imprisonment of 1 day
 Indirect Contempt
o Is not committed in the presence of the court and can be punished
only after hearing
o Procedural requisite
 Charge in writing
 hearing
 In the nature of criminal action, proof beyond reasonable doubt is needed
 Remedy for Direct Contempt
o May not appeal
o Either Certiorari or Prohibition is the remedy
o File a bond condition to pay damages if adjudge liable for contempt
o Remedy of Habeas Corpus in extreme cases where the order is void
 A person cannot be punished for disobeying a writ because the writ is
directed to the sheriff
 Indirect contempt against SC shall be file before RTC, or the SC can take
cognizance if it only involve question of law