1.

Kinds of Mode of Discovery

KIND of MANNER & TO/BY WHOM

DISCOVERY TIME & PURPOSE
1) Deposition pending a) by leave of court after To any person whether a party
action upon oral or jurisdiction obtained over the or not at the instance of any
written interrogatories person or subject. party.

b) without leave after answer Purpose: to get oral or written

have been served. admissions from a witness.
2) Deposition before a) by a verified petition in the By any person who desires to
action court of the place of residence perpetuate his own testimony
of any expected adverse party/ or that of another.

Purpose: future action

3) Deposition pending By leave of court if an appeal By appelle or appellant
appeal has been taken or before
taking it before expiration Purpose: for appeal or future
period proceedings
4) Interrogatories a) by leave of court after By and to any party desiring to
jurisdiction obtained over the elicit material and relevant
person or subject facts

b) without leave after answer Purpose: to elicit material and

have been served
5) Request for Admission By a written request for
admission after issues have
been joined
relevant facts
By any party filed and served
upon adverse party
Purpose: for admission of:

a) Genuineness of any
material documents

b) Truth of material facts

6) Production or Upon motion to the court and By and to any party for
inspection of documents showing good cause with
or things notice to all Purposes:
a) Produce, inspect and copy
documents, objects or things
not privilege and material
evidence to a case

b) Entry and inspection of

place.
7) Physical and mental Upon motion to the court and By any party against the party
examination showing good cause with whose mental or physical
notice to all mental or physical condition is in controversy
condition of a party is in
controversy. Purposes: Ascertain the
physical or mental condition
of a party material to the
action
 2. RULE 25 Sec. 6. Effect of failure to serve written interrogatories.

Unless thereafter allowed by the court for good cause shown and to prevent a failure of
justice, a party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or to give a deposition pending appeal.

3. USE of DEPOSITION R23S4

At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules of evidence, may be used against any party who
was present or represented at the taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching
the testimony of deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition was an
officer,
director, or managing agent of a public or private corporation, partnership, or association
which is a party may be used by an adverse party for any purpose;

(c) The deposition of a witness, whether or not a party, may be used by any party for any
purpose if the court finds:
(1) that the witness is dead; or
(2) that the witness resides at a distance more than one hundred (100) kilometers
from the place of trial or hearing, or is out of the Philippines, unless it appears that his
absence was procured by the party offering the deposition; or
(3) that the witness is unable to attend to testify because of age, sickness, infirmity, or
imprisonment; or
(4) that the party offering the deposition has been unable to procure the attendance
of the witness by subpoena; or
(5) upon application and notice, that such exceptional circumstances exist as to make
it
desirable, in the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used; and

(d) If only part of a deposition is offered in evidence by a party, the adverse party may require
him to introduce all of it which is relevant to the part

4. Scope of Deposition R23S2

Unless otherwise ordered by the court as provided by section 16 or 18 of this Rule, the deponent
may be examined regarding any matter, not privileged, which is relevant to the subject of the
pending action, whether relating to the claim or defense of any other party, including the
existence, description, nature, custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons having knowledge of relevant facts.

5. Demurer to Evidence
a. Only ground: The plaintiff has shown no right to relief (i.e. evidence is
insufficient)

b.

c. It is invoked after the plaintiff has presented all the evidence available to him.

d.
 6. Judgment on the pleadings and summary judgment distinguished:

Judgment on the Pleadings Summary judgment

Proper when there is no genuine issue Proper even if there is an issue as to the
between the parties damages recoverable

Based not only on pleadings but also on

Based exclusively on the pleadings affidavits, depositions and admissions of
without introduction of evidence the parties

Proper only in actions to recover a debt,

Available in any action, except the 3 or for a liquidated sum of money, or for
exceptions declaratory relief

à Motions for summary judgment may be filed by the claimant or by the defending
party. The defending party may file such motion, pursuant to Rule 35, §2“at any time”, as
distinguished from §1 where the claimant may file the motion at any time after the answer is
filed.

7. Remedies when judgement not yet final

REMEDIES BEFORE FINALITY OF JUDGMENT
(a) Motion for Reconsideration
(b) Motion for New Trial
(c) Appeal
Since a judgment on compromise agreement is effectively a judgment on the case, proper
remedies against ordinary judgments may be used against judgments on a compromise
agreement. Provided these are availed on time and the appropriate grounds exist, remedies
may include the following: a) motion for reconsideration; b) motion for new trial; c) appeal;
d) petition for relief from judgment; e) petition for certiorari; and f) petition for annulment of
judgment
Rule 37 New Trial or Reconsideration
1. 1. Motion for new trial or reconsideration filed within 15 days from notice of
judgment and resolved by the court within 30 days from submission for resolution.
2. 2. Grounds: Motion for New Trial
1. Fraud, accident, mistake, or excusable negligence;
2. Newly discovered evidence

à Requisites:

1. Discovered after trial

2. Could not have been discovered and produced at trial despite the exercise of
reasonable diligence
3. If presented, could probably alter the result of the action

Grounds: Motion for Reconsideration

1. Damages awarded are excessive
2. Evidence is insufficient to justify the decision or final order
3. Decision is contrary to law
Motion for new trial shall be in writing, and supported by affidavits of merit if the ground is
FAME; for newly-discovered evidence, it must be supported by affidavits of witnesses by
whom such evidence is expected to be given, or by duly authenticated documents to be
introduced.

Motion for reconsideration shall specifically point out the findings or conclusions of the
judgment which are unsupported by evidence or contrary to law, with express reference to
the testimonial or documentary evidence or the provisions of law alleged to be contrary to
such findings.

Rule 41 Appeal may be taken from a judgment or final order that completely disposes of the
case or of a particular matter therein.

Rule 65 Certiorari, Prohibition and Mandamus

1. 1. Certiorari
1. Purpose – to correct an act performed by respondent;
2. Act sought to be controlled – discretionary acts;
3. Respondent – one who exercises judicial functions and acted with grave abuse of
discretion or in lack or excess of jurisdiction.
4. Generally directed against an interlocutory order of the court prior to appeal from the
judgment in the main case;
5. Need merely be filed seasonably (within 60 days), without undue delay and before the
act, order, or proceedings, sought to be reviewed or set aside has become fait
accompli such that any reversal thereof shall have become academic;
6. Unless a writ of preliminary injunction shall have issued, does NOT stay the challenged
order;
7. Parties are the aggrieved parties against the lower court or quasi-judicial agency and
the prevailing parties;
8. Motion for reconsideration is a condition precedent, subject to certain exceptions;
9. Higher court exercises original jurisdiction under its power of control and supervision
over the orders of lower courts.

8. Remedies when judgement is final

38 47 65

Rule 38 Relief From Judgments, Orders, or Other Proceedings

1. 1. Petition for relief from judgment filed within 60 days after learning of judgment
and not more than 6 months after such judgment

à Must be supported by affidavit showing the FAME and the facts constituting the
petitioner’s good or substantial cause of action or defense

1. 2. Party who has filed a timely motion for new trial cannot file a petition for relief
after the former is denied. The two remedies are exclusive of one another.
2. 3. Grounds:
1. Judgment or final order is rendered and party has been prevented by FAME from
taking an appeal
1. Judgment or final order entered against a party by FAME; or

à For fraud to be extrinsic, the losing party must never have had a chance to controvert the
adverse party’s evidence.
Rule 47 Annulment of Judgments or Final Orders and Resolutions
1. Grounds for annulment of judgment of RTC in civil cases:
1. Petition for annulment available only if ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies no longer available through no
fault of the Petitioner.
1. Extrinsic fraud – not available as a ground if availed of earlier in a motion for new trial
or petition for relief
2. Lack of jurisdiction.

3. Periods:

1. For extrinsic fraud – four years from discovery;

2. Lack of jurisdiction – must be filed before action barred by laches.

4. Effects of judgment of annulment – gives the CA authority to order the trial court on
motion to try the case if the ground for annulment is extrinsic fraud, but not if it is lack of
jurisdiction.

à Prescriptive period for refiling the original action is suspended unless the extrinsic fraud is
attributable to the plaintiff in the original action.

Rule 65 Certiorari, Prohibition and Mandamus

Prohibition
Prohibition is a preventive remedy. However, to
prevent the respondent from performing the act
sought to be prevented during the pendency of the
proceedings for the writ, the petitioner should obtain
a restraining order and/or writ of preliminary
injuction. [Regalado]

Mandamus
A writ of mandamus will not issue to control the
exercise of official discretion or judgment, or to alter
or review the action taken in the proper exercise of
the discretion of judgment, for the writ cannot be
used as a writ of error or other mode of direct review.

9. “Section 2. Modes of appeal. —

A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the
notice of appeal in due time. A party's appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the approval of the record
on appeal filed in due time.

(a) Ordinary appeal. — The appeal to the Court of Appeals in cases decided by the Regional
Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal
with the court which rendered the judgment or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals where the law or these Rules so
require. In such cases, the record on appeal shall be filed and served in like manner.
(b) Petition for review. — The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in
accordance with Rule 42.
(c) Appeal by certiorari. — In all cases where only questions of law are raised or involved,
the appeal shall be to the Supreme Court by petition for review on certiorari in accordance
with Rule 45” (emphasis supplied).

The first mode of appeal, the ordinary appeal under Rule 41 of the Rules of Court, is
brought to the CA from the RTC, in the exercise of its original jurisdiction, and resolves
questions of fact or mixed questions of fact and law. The second mode of appeal, the petition
for review under Rule 42 of the Rules of Court, is brought to the CA from the RTC, acting in
the exercise of its appellate jurisdiction, and resolves questions of fact or mixed questions of
fact and law. The third mode of appeal, the appeal by certiorari under Rule 45 of the Rules of
Court, is brought to the Supreme Court and resolves only questions of law

10. Rule 39
a. Under the Rule on Discretionary Execution (also called execution pending
appeal), the court rendering the judgment, if it still has jurisdiction, may
exercise discretion and order execution pending appeal (Asked in the 2002 Bar
Exam). It is the execution of a judgment or final order before it attains finality.
The court which rendered the decision can grant an execution pending appeal
if it still retains jurisdiction over the case and is in possession of the records at
the time of the filing of the motion; otherwise, the motion shall be acted upon
by the appellate court. To be valid, there should be a good reason to justify
the execution of the judgment pending appeal, the same to be stated in the
order granting it.
b. Sec. 3. Stay of discretionary execution.
Discretionary execution issued under the preceding section may be stayed upon
approval by the proper court of a sufficient supersede as bond filed by the party
against whom it is directed, conditioned upon the performance of the judgment
or order allowed to be executed in case it shall be finally sustained in whole or
in part. The bond thus given may be proceeded against on motion with notice
to the surety.
c. Judgments NOT stayed by appeal (immediately executory, unless court
provides otherwise)
d. 5. A final and executory judgment may be executed on motion within 5 years
from entry. May be revived and enforced by action after lapse of 5 years but
before 10 years from entry. Revived judgment may be enforced by motion
within 5 years from entry and thereafter by action before barred by statute of
limitations – file motion within 10 years from the finality of the revived
judgment.
6. Execution in case of party’s death:

1. Death of judgment obligee – application of his executor or administrator or successor-

in-interest
2. Death of judgment obligor –
 1. Against his executor, etc. if the judgment be for recovery of real or personal
property or the enforcement of a lien thereon.
2. If death after execution is actually levied upon his property, it may be sold for
satisfaction of the obligation.

à If the judgment obligor dies after the entry but before levy, execution will issue if it be for
the recovery of real or personal property. However, if judgment is for a sum of money, and
the judgment obligor dies before levy, such judgment cannot be enforced by writ of
execution but must be filed as a claim against his estate.

e. Sec. 9. Execution of judgments for money, how enforced.

(a) Immediate payment on demand. - The officer shall enforce an execution of a
judgment for money by demanding from the judgment obligor the immediate payment
of the full amount stated in the writ of execution and all lawful fees.
The judgment obligor shall pay in cash, certified bank check payable to the judgment
obligee or his authorized representative if present at the time of payment.
The lawful fees shall be handed under proper receipt to the executing sheriff who shall
turn over the said amount within the same day to the clerk of court of the court that
issued the writ.
If the judgment obligee or his authorized representative is not present to receive
payment, the judgment obligor shall deliver the aforesaid payment to the executing
sheriff.
The latter shall turn over all the amounts coming into his possession within the same day
to the clerk of court of the court that issued the writ, or if the same is not practicable,
deposit said amount to a fiduciary account in the nearest government depository bank
of the Regional Trial Court of the locality.
The clerk of court shall thereafter arrange for the remittance of the deposit to the
account of the court that issued the writ whose clerk of court shall then deliver said
payment to the judgment obligee in satisfaction of the judgment.
The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall
be retained by the clerk of court for disposition as provided by law. In no case shall the
executing sheriff demand that any payment by check be made payable to him.

(b) Satisfaction by levy. - If the judgment obligor cannot pay all or part of the obligation
in cash, certified bank check or other mode of payment acceptable to the judgment
obligee, the officer shall levy upon the properties of the judgment obligor of every kind
and nature whatsoever which may be disposed of for value and not otherwise exempt
from execution giving the latter the option to immediately choose which property or part
thereof may be levied upon, sufficient to satisfy the judgment.
If the judgment obligor does not exercise the option, the officer shall first levy on the
personal properties, if any, an then on the real properties if the personal properties are
insufficient to answer for the judgment.
The sheriff shall sell only a sufficient portion of the personal or real property of the
judgment obligor which has been levied upon.
When there is more property of the judgment obligor than is sufficient to satisfy the
judgment and lawful fees, he must sell only so much of the personal or real property as
is sufficient to satisfy the judgment and lawful fees.
Real property, stocks, shares, debts, credits, and other personal property, or any interest
in either real or persoanl property, may be levied upon in like manner and with like effect
as under a writ of attachment.
(c) Garnishment of debts and credits. - The officer may levy on debts due the judgment
obligor and other credits, including bank deposits, financial interests, royalties,
commissions and other personal property not capable of manual delivery in the
posssession or control of third parties.
Levy shall be made by serving notice upon the person owing such debts or having in his
possession or control such credits to which the judgment obligor is entitled. The
garnishment shall cover only such amount as will satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the court within five (5) days from service
of the notice of garnishment stating whether or not the judgment obligor has sufficient
funds or credits to satisfy the amount of the judgment. If not, the report shall state how
much funds or credits the garnishee holds for the judgment obligor.
The garnished amount in cash, or certified bank check issued in the name of the
judgment obligee, shall be delivered directly to the judgment obligee within ten (10)
working days from service of notice on said garnishing requiring such delivery, except the
lawful fees which shall be paid directly to the court.
In the event there are two or more garnishees holding deposits or credits sufficient to
satisfy the judgment, the judgment obligor, if available, shall have the right to indicate
the garnishee or garnishees who shall be required to deliver the amount due; otherwise,
the choice shall be made by the judgment obligee.
The executing sheriff shall observe the same procedure under paragraph (a) with respect
to delivery of payment to the judgment obligee.

f. Manner of executing writ for specific acts:

i. If judgment against property of the judgment obligor – out of real or
personal property with interest
ii. If against his real or personal property in the hands of the personal
representatives, heirs, devisees, legatees, tenants, or trustees of the
judgment obligor – out of that property, with interest
iii. If for sale of real or personal property – to sell property, describing it
and apply the proceeds in conformity with judgment.
iv. If for delivery of possession of property – deliver possession of the
same to the party entitled to it, describing it, and to satisfy any costs,
damages, rents, or profits covered by the judgment out of the personal
property of the person against whom it was rendered, and out of real
property if sufficient personal property cannot be found.
v. In all cases, writ of execution shall specifically state the amount of the
interest, costs, damages, rents, or profits due as of date of issuance of
writ, aside from principal obligation.
g. Property exempt from execution
i. Family home as provided by law, homestead in which he resides, and
land necessarily used in connection therewith;
ii. Tools and implements used in trade, employment, or livelihood;
iii. 3 horses, cows, or carabaos or other beasts of burden used in his
ordinary occupation;
iv. Necessary clothing and articles for ordinary personal use, excluding
jewelry;
v. Household furniture and utensils necessary for housekeeping not
exceeding P3,000;
vi. Professional libraries and equipment of judges, lawyers, physicians,
etc. not exceeding P300,000;
vii. One fishing boat and accessories not more than P100,000 owned by a
fisherman and by which he earns his living;
viii. Salaries, wages, or earnings for personal services within the 4 months
preceding the levy which are necessary for the support of the family;
 ix. Lettered gravestones;
x. Money, benefits, annuities accruing or in any manner growing out of
any life insurance;
xi. Right to receive legal support or any pension or gratuity from the
government;
xii. Properties especially exempted by law.

h. Third party claims:

IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND
REPLEVIN
Remedies of a Third-Party Claimant
(a) Summary hearing before the court which authorized the execution
(b) “Terceria” or third-party claim filed with the sheriff
(c) Action for damages on the bond posted by the judgment creditor (d) Independent
reivindicatory action The aforementioned are cumulative remedies and may be resorted to
by a third-party claimant independently of or separately from and without need of availing of
the others. [Sy v. Discaya (1990)]

i. Effect of foreign judgment

1. Judgment upon a specific thing, conclusive upon title to the thing;
2. If against a person, judgment is presumptive evidence of a right as between the parties
and their successors in interest;

When foreign judgment may be repelled

1. Evidence of want of jurisdiction
2. Want of notice to party
3. Collusion
4. Fraud
5. Clear mistake of law.

j. Requisites for res judicata

1. Final former judgment
2. Judgment is on the merits
3. Rendered by a court of competent jurisdiction
4. Between first and second actions, identity of subject matter, parties and cause of
action.

When quashal of writ of execution proper

1. Improperly issued
2. Defective in substance
3. Issued against the wrong party
4. Judgment was already satisfied
5. Issued without authority
6. Change of the situation of the parties renders execution inequitable
7. Controversy was never validly submitted to the court
8. Writ varies the terms of the judgment
9. Writ sought to be enforced against property exempt from execution
10. Ambiguity in the terms of the judgment

11. RULE 42
 PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS
Section 1. How appeal taken; time for filing.

A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of
its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying
at the same time to the clerk of said court the corresponding docket and other lawful fees,
depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the
adverse party with a copy of the petition. The petition shall be filed and served within fifteen
(15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s
motion for new trial or reconsideration filed in due time after judgment. Upon proper motion
and the payment of the full amount of the docket and other lawful fees and the deposit for costs
before the expiration of the reglementary period, the Court of Appeals may grant an additional
period of fifteen (15) days only within which to file the petition for review. No further extension
shall be granted except for the most compelling reason and in no case to exceed fifteen (15)
days.

The Doctrine of Residual Jurisdiction

- The residual jurisdiction of trial courts is available at a stage in which the court is normally deemed
to have lost jurisdiction over the case or the subject matter involved in the appeal. This stage is
reached upon the perfection of the appeals by the parties or upon the approval of the records on
appeal, but prior to the transmittal of the original records or the records on appeal. In either
instance, the trial court still retains its so-called residual jurisdiction to issue protective orders,
approve compromises, permit appeals of indigent litigants, order execution pending appeal, and
allow the withdrawal of the appeal.