GENERAL

The Rules of Court shall govern cases brought after they

take effect, and also all further proceedings then pending,
EXCEPT to the extent that in the opinion of the Court their

PRINCIPLES application would not be feasible or would work injustice.

[Riano citing Rule 114]

CONCEPT OF REMEDIAL LAW SUBSTANTIVE LAW VIS-À-VIS REMEDIAL

Remedial law is that branch of law which prescribes the LAW
method of enforcing rights or obtaining redress for their
invasion (Bustos v. Lucero, 81 Phil. 640). Substantive Law - creates, defines and regulates rights
and duties regarding life, liberty or property which when
Remedial statute or statutes: violated gives rise to a cause of action (Bustos v. Lucero,
(1) Relating to remedies or modes of procedure; 81 Phil. 640)
(2) Do not take away or create vested rights;
(3) BUT operate in furtherance of rights already SUBSTANTIVE LAW REMEDIAL LAW
existing. (Riano citing Systems Factor Corporation It is that part of the law It refers to the legislation
v NLRC (2000)) which creates, defines, or providing means or
regulates rights, methods whereby causes
Source concerning life, liberty or of action may be
property or the powers of effectuated, wrongs
Remedial law is basically contained in the Rules of Court. agencies or redressed, and relief
Circulars of the Supreme Court implementing the Rules of instrumentalities for the obtained
Court (e.g. Rules on Summary Procedure) also contain administration of public It is also called Adjective
remedial law. affairs Law
It makes vested rights
It has no vested rights
The Rules of Court, promulgated by authority of law, have possible
the force and effect of law, if not in conflict with positive It governs acts and
It is prospective in
law (Inchausti & Co v de Leon (1913)]. The rule is transactions which took
application
subordinate to the statute, and in case of conflict, the place (retroactive)
statute will prevail. [Shioji v Harvey (1922)]. The SC is expressly
It cannot be enacted by
empowered to promulgate
the SC
Applicability procedural rules

The Rules of Court is applicable in ALL COURTS, EXCEPT
as otherwise provided by the SC [Rule 1, Sec. 2].
It governs the procedure to be observed in CIVIL or
CRIMINAL actions and SPECIAL proceedings [Rule 1, Sec.
3].
It does not apply to the following cases:
1. Election cases,
2. Land registration cases,
3. Cadastral cases
4. Naturalization cases,
5. Insolvency proceedings
6. Other cases not herein provided for
Except by analogy or in a suppletory character
and whenever practicable and convenient [Rule
4, Sec. 4]
Prospectivity/ Retroactivity
The Rules of Court are not penal statutes and cannot be
given retroactive effect [Bermejo v Barrios (1970)].
Rules of procedure may be made applicable to actions
pending and undetermined at the time of their passage,
and are deemed retroactive in that sense and to that
extent. [In the Matter to Declare in Contempt of Court Hon.
Simeon Datumanong (2006)].
1
RULE MAKING POWER OF THE SUPREME
COURT
Judicial Power includes the duty of the courts of justice to
settle actual controversies involving rights, which are
legally demandable and enforceable, and to determine
whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government (Sec. 1,
Art. VIII, 1987 Constitution)
The power of judicial review is the SC’s power to declare a
law, treaty, international or executive agreement,
presidential decree, proclamation, order, instruction,
ordinance, or regulation unconstitutional
Sec. 5(5), Art. VIII, of the 1987 Constitution provides that
that the Supreme Court shall have the power to:
1. promulgate rules concerning the protection and
enforcement of constitutional rights, pleading,
practice, and procedure in all courts;
2. admission to the practice of law;
3. the Integrated Bar;
4. and legal assistance to the underprivileged
Limitations on the rule-making power of the Supreme
Court

Sec 5(5) of Art. VIII of the Constitution sets forth the
limitations to the power:
1. That the rules shall provide a simplified and
inexpensive procedure for speedy disposition of
cases;
2. That the rules shall be uniform for courts of the
same grade; and
3. That the rules shall not diminish, increase or
modify substantive rights.
Power of the Supreme Court to Amend and Suspend
Procedural Rules
Power to Amend Remedial Laws
1. The constitutional faculty of the Court to
promulgate rules of practice and procedure
necessarily carries with it the power to overturn
judicial precedents on points of remedial law
through the amendment of the Rules of Court.
[Pinga v Heirs of Santiago (2006)].
2. The SC has the sole prerogative to amend, repeal,
or even establish new rules for a more simplified
and inexpensive process, and the speedy
disposition of case [Neypes v CA (2005)]
Power to Suspend Remedial Laws
1. It is within the inherent power of the Supreme
Court to suspend its own rules in a particular
case in order to do justice [De Guia v De Guia
(2001)].
2. When the operation of rules will lead to an
injustice or if their application tends to subvert
and defeat instead of promote and enhance
justice, their suspension is justified [Republic v
CA (1978)].
3. There is no absolute rule as to what constitutes
good and sufficient cause that will merit
suspension of the rules. The matter is
discretionary upon the Court [Republic v
Imperial Jr. (1999)].
4. The bare invocation of "the interest of substantial
justice" is not a magic wand that will
automatically compel this Court to suspend
procedural rules [Ramos v Sps Lavendia (2008)].
5. Procedural rules are not to be belittled or
dismissed simply because their non-observance
may have resulted in prejudice to a party's
substantive rights. Like all rules, they are
required to be followed except only for the most
persuasive of reasons when they may be relaxed
to relieve a litigant of an injustice not
commensurate with the degree of his
thoughtlessness in not complying with the
procedure prescribed. [Polanco v Cruz (2009)].
NATURE OF PHILIPPINE COURTS
Meaning of a Court
A court is an organ of the government belonging to the
judicial department, the function of which is the
2
application of the laws to controversies brought before it
(and) as well as the public administration of justice.
Generally, the term describes an organ of the government
consisting of one person or of several persons, called
upon and authorized to administer justice. It is also the
place where justice is administered. [Riano citing Black’s
and Am. Jur. and C. J. S.]
Court as Distinguished from a Judge
COURT JUDGE
A tribunal officially
assembled under An officer of such tribunal
authority of law
An organ of the
government with a The judge is the one who
personality separate from “sits” in court
the person or judge
A being in imagination
A physical and natural
comparable to a
person
corporation
May be considered an
A public officer
office
The circumstances of the court are not affected by the
circumstance that would affect the judge. The continuity of
a court and the efficacy of its proceedings are not affected
by the death, resignation, or cessation from the service of
the judge presiding over it. In other words, the judge may
resign, become incapacitated, or be disqualified to hold
office, but the court remains. The death of the judge does
not mean the death of the court [Riano citing ABC Davao
Auto Supply v. CA (1998)].
Classification of Philippine Courts
1. Courts of original and appellate jurisdiction
2. Courts of general and special jurisdiction
3. Constitutional and statutory courts
4. Courts of law and equity
5. Superior and Inferior Courts
6. Courts of record and not of record
Courts of original and appellate jurisdiction
Courts of original jurisdiction – Those courts in which,
under the law, actions or proceedings may be originally
commenced.
Courts of appellate jurisdiction – Courts which have the
power to review on appeal the decisions or orders of a
lower court. [Regalado]
Courts of general and special jurisdiction
Courts of general jurisdiction – Those competent to
decide their own jurisdiction and to take cognizance of all
kinds of cases, unless otherwise provided by the law or
Rules.
Courts of special or limited jurisdiction – Those which
have no power to decide their own jurisdiction and can
only try cases permitted by statute. [Regalado]
Constitutional and statutory courts
Constitutional courts – Those which owe their creation
and existence to the Constitution and, therefore cannot be
legislated out of existence or deprived by law of the
jurisdiction and powers unqualifiedly vested in them by
the Constitution. e.g. Supreme Court; Sandiganbayan is a
constitutionally-mandated court but created by statute.
Statutory courts – Those created, organized and with
jurisdiction exclusively determined by law. [Regalado]
Courts of law and equity
Courts of Law- Those courts which administer the law of
the land. They settle cases according to law.
Courts of Equity- Those courts which rules according to
the precepts of equity or justice. They settle cases
according to the principles of equity referring to
principles of justice, fainess and fair play.
Philippine courts are both courts of law and equity.
Hence, both legal and equitable jurisdiction is dispensed
with in the same tribunal [U.S. v. Tamparong (1998)]
Superior and Inferior Courts
Superior courts – Courts which have the power of review
or supervision over another and lower court.
Inferior courts – Those which, in relation to another
court, are lower in rank and subject to review and
supervision by the latter. [Regalado]
Courts of record and not of record
Courts of record – Those whose proceedings are enrolled
and which are bound to keep a written record of all trials
and proceedings handled by them. [Regalado] One
attribute of a court of record is the strong presumption as
to the veracity of its records that cannot be collaterally
attacked except for fraud. All Philippine courts, including
inferior courts, are now courts of record. [Riano]
Courts not of record – Courts which are not required to
keep a written record or transcript of proceedings held
therein.
Principle of Judicial Hierarchy
The judicial system follows a ladderized scheme which in
essence requires that lower courts initially decide on a
case before it is considered by a higher court. Specifically,
under the judicial policy recognizing hierarchy of courts, a
higher court will not entertain direct resort to it unless
the redress cannot be obtained in the appropriate courts.
[Riano citing Santiago v. Vasquez (1993)]
3
The principle is an established policy necessary to avoid
inordinate demands upon the Court’s time and attention
which are better devoted to those matters within its
exclusive jurisdiction, and to preclude the further
clogging of the Court’s docket [Lim v. Vianzon (2006)].
When the doctrine/principle may be disregarded: A direct
recourse of the Supreme Court’s original jurisdiction to
issue writs (referring to the writs of certiorari,
prohibition, or mandamus) should be allowed only when
there are special and important reasons therefor, clearly
and specifically set out in the petition. [Mangahas v.
Paredes (2007)]. The Supreme Court may disregard the
principle of hierarchy of courts if warranted by the nature
and importance of the issues raised in the interest of
speedy justice and avoid future litigations [Riano].
Doctrine of Non-Interference or Doctrine of Judicial
Stability
The principle holds that courts of equal and coordinate
jurisdiction cannot interfere with each other’s orders
[Lapu-lapu Development and Housing Corp. v. Group
Management Corp.(2002)] The principle also bars a court
from reviewing or interfering with the judgment of a co-
equal court over which it has no appellate jurisdiction or
power of review [Villamor v. Salas (1991)].
The doctrine of non-interference applies with equal force
to administrative bodies. When the law provides for an
appeal from the decision of an administrative body to the
SC or CA, it means that such body is co-equal with the RTC
in terms of rank and stature, and logically beyond the
control of the latter [Phil Sinter Corp. v. Cagayan Electric
Power (2002)].
General Rule: No court has the authority to interfere by
injunction with the judgment of another court of
coordinate jurisdiction or to pass upon or scrutinize and
much less declare as unjust a judgment of another court
Exception: The doctrine of judicial stability does not apply
where a third party claimant is involved
JURISDICTION JURISDICTION OVER THE SUBJECT MATTER

Jurisdiction over the subject matter is the power to deal

JURISDICTION IN GENERAL
Jurisdiction is defined as the authority to try, hear and
decide a case [Tolentino v. Leviste (2004)].
Judicial power includes the duty of the courts of justice:
[Art 8, Sec. 1, Constitution]
1. To settle actual controversies involving rights
which are legally demandable and enforceable;
2. To determine WON there has been a grave abuse
of discretion amounting to lack or excess of
jurisdiction on the part of any government
branch/ instrumentality.
All courts exercise judicial power. Only the Supreme
Court is the court created by the Constitution [Art 8, Sec.
1, Constitution]. The Sandiganbayan is a Constitutionally
mandated court, but it is created by statute. [PD 1486]
with the general subject involved in the action, and means
not simply jurisdiction of the particular case then
occupying the attention of the court but jurisdiction of the
class of cases to which the particular case belongs (Riano
citing CJS).
It is the power to hear and determine cases of the general
class to which the proceedings in question belong [Reyes
v. Diaz (1941)]
Jurisdiction versus the exercise of jurisdiction
Jurisdiction: the authority to hear and determine a cause
— the right to act in a case. [Arranza v. BF Homes (2000)].
‘Exercise of Jurisdiction.’: the exercise of this power or
authority

Jurisdiction is distinct from the exercise thereof.

REQUISITES FOR A VALID EXERCISE OF JURISDICTION
1. Court must have jurisdiction over the persons of
the parties
2. It must have jurisdiction over the subject matter
of the controversy
3. It must have jurisdiction over the res
4. It must have jurisdiction over the issues
JURISDICTION OVER THE PARTIES
Jurisdiction is the authority to decide a case and not the
decision rendered therein. When there is jurisdiction over
the subject matter, the decision on all other questions
arising in the case is but an exercise of jurisdiction.
[Herrera v. Baretto et al (1913)]
Error of Jurisdiction as distinguished from Error of
Judgment

The manner by which the court acquires jurisdiction over Error of jurisdiction Error of judgment
the parties depends on whether the party is the plaintiff
or the defendant. It is one which the court
may commit in the
The mode of acquisition of jurisdiction over the plaintiff exercise of its jurisdiction
It is one where the act
and the defendant applies both to ordinary and special [Cabrera v. Lapid (2006)].
complained of was issued
civil actions. It includes errors of
by the court without or in
procedure or mistakes in
excess of jurisdiction
How jurisdiction over the PLAINTIFF is acquired - the court’s mistakes in the
[Cabrera v. Lapid (2006)].
Jurisdiction over the plaintiff is acquired by filing of the court’s findings [Banco
complaint or petition. By doing so, he submits himself to Filipino Savings v. CA
the jurisdiction of the court [Davao Light & Power Co., Inc. (2000)]
v CA (1991)]. Correctible only by the
extraordinary writ of Correctible by appeal
How jurisdiction over the DEFENDANT is acquired - certiorari [Cabrera v Lapid [Cabrera v Lapid (2006)]
Acquired by the (2006)]
1. Voluntary appearance or submission by the Ground for reversal only if
defendant or respondent to the court or Renders a judgment void or it is shown that prejudice
2. By coercive process issued by the court to him, voidable [Rule 16 Sec. 1, has been caused [Banco
generally by the service of summons [de Joya v. Rule 65] Español-Filipino v Palanca
Marquez (2006), citing Regalado] (1918)]

NOTE: In an action in personam, jurisdiction over the

person is necessary for the court to validly try and decide
the case, while in a proceeding in rem or quasi in rem,
jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided
the latter has jurisdiction over the res [Alba v. CA (2005)].
How conferred and determined:
1. Jurisdiction being a matter of substantive law, the
statute in force at the time of the commencement
of the action determines the jurisdiction of the
court.

4
 2. It is conferred only by the Constitution or the law.
3. Jurisdiction CANNOT be:
a. Fixed by agreement of the parties;
b. Cannot be acquired through, or waived,
enlarged or diminished by, any act or
omission of the parties;
c. Neither can it be conferred by the
acquiescence of the court [Regalado citing De
Jesus v Garcia (1967)].
d. Cannot be subject to compromise [Civil Code,
Art 2035]
4. Jurisdiction over the subject matter is determined
by the allegations of the complaint and the reliefs
prayed for. [Gulfo v. Ancheta (2012)]
5. It is not affected by the pleas set up by the
defendant in the answer or in the answer or in a
motion to dismiss. [Sindico v. Diaz (2004)].
6. Once attached to a court, it cannot be ousted by
subsequent statute.
a. Exception: The statute itself conferring new
jurisdiction expressly provides for
retroactive effect. [Southern Food v. Salas
(1992)]
7. The filing of the complaint or appropriate
initiatory pleading and the payment of the
prescribed docket fee vest a trial court with
jurisdiction over the subject matter or the nature
of the action [CB v. CA (1992)](2008 Bar Exam).
a. Exception: Non-payment of docket fee does
not automatically cause the dismissal of the
case on the ground of lack of jurisdiction as
long as the fee is paid within the applicable
prescriptive or reglementary period, more so
when the party involved demonstrates a
willingness to abide by the rules prescribing
such payment. [Go v. Tong (2003)]
Doctrine of Primary Jurisdiction
Courts cannot and will not resolve a controversy
involving a question which is within the jurisdiction of an
administrative tribunal, especially where the question
demands the exercise of sound administrative discretion
requiring the special knowledge, experience and services
of the administrative tribunal to determine technical and
intricate matters of fact [Paloma v. Mora (2005)].
Objective is to guide a court in determining whether it
should refrain from exercising its jurisdiction until after
an administrative agency has determined some question
or some aspect of some question arising in the proceeding
before the court [Riano citing Omictin v. CA (2007)]
Doctrine of Adherence of Jurisdiction
Also known as doctrine of continuity of jurisdiction
5
The court, once jurisdiction has been acquired, retains
that jurisdiction until it finally disposes of the case
[Bantua v. Mercader (2001)].
As a consequence, jurisdiction is not affected by a new
law placing a proceeding under the jurisdiction of another
tribunal, EXCEPT:
1. Where there is an express provision in the
statute
2. The statute is clearly intended to apply to actions
pending before its enactment [Riano citing People
v. Cawaling (1998)].
Objections to Jurisdiction over the Subject Matter
When it appears from the pleadings or evidence on record
that the court has no jurisdiction over the subject matter,
the court shall dismiss the same. (Sec. 1, Rule 9)
The court may on its OWN INITIATIVE object to an
erroneous jurisdiction and may ex mero motu take
cognizance of lack of jurisdiction at any point in the case
and has a clearly recognized right to determine its own
jurisdiction [Fabian v. Desierto (1998)].
Earliest opportunity of a party to raise the issue of
jurisdiction is in a motion to dismiss filed before the filing
or service of an answer. Lack of jurisdiction over subject
matter is a ground for a motion to dismiss. If no motion is
filed, the defense of lack of jurisdiction may be raised as
an affirmative defense in the answer. [Riano citing Sec.
1(b) and 6 of Rule 16].
Jurisdiction over the subject matter may be raised at any
stage of the proceedings, even for the first time on appeal.
When the court dismisses the complaint for lack of
jurisdiction over the subject matter, it is common reason
that the court cannot remand the case to another court
with the proper jurisdiction. Its only power is to dismiss
and not to make any other order.
Effect of Estoppel on Objections to Jurisdiction
General Rule: Estoppel does not apply to confer
jurisdiction to a tribunal that has none over a cause of
action. Jurisdiction is conferred by law. Where there is
none, no agreement of the parties can provide one. Settled
is the rule that the decision of a tribunal not vested with
appropriate jurisdiction is null and void. [SEAFDEC-AQD v.
NLRC (1992)]
Exception: Participation in all stages of the case before the
trial court, that included invoking its authority in asking
for affirmative relief, effectively barred petitioner by
estoppel from challenging the court’s jurisdiction. [Soliven
v. Fastforms (2004)]
JURISDICTION OVER THE ISSUES
It is the power of the court to try and decide issues raised
in the pleadings of the parties.
An issue is a disputed point or question to which parties
to an action have narrowed down their several allegations
and upon which they are desirous of obtaining a decision.
Where there is no disputed point, there is no issue.
Exclusive Original Jurisdiction
Generally, jurisdiction over the issues is conferred and
determined by:
1. The pleadings of the parties. The pleadings
present the issues to be tried and determine
whether or not the issues are of fact or law.
2. Stipulation of the parties as when in the pre-trial,
the parties enter into stipulations of facts and
documents or enter into agreement simplifying
the issues of the case.
3. Waiver or failure to object to the presentation of
evidence on a matter not raised in the pleadings.
Here the parties try with their express or implied
consent or issues not raised by the pleadings. The
issues tried shall be treated in all respects as if
they had been raised in the pleadings.
JURISDICTION OVER THE RES OR PROPERTY IN
LITIGATION
Jurisdiction over the res refers to the court’s jurisdiction
over the thing or the property which is the subject of the
action.
Jurisdiction over the res may be acquired by the court
1. By placing the property or thing under its
custody (custodia legis)
a. The seizure of the thing under legal process
whereby it is brought into actual custody of
law
b. Example: attachment of property.
2. Through statutory authority conferring upon it
the power to deal with the property or thing
within the court’s territorial jurisdiction
a. Institution of a legal proceeding wherein the
power of the court over the thing is
recognized and made effective
b. Example: suits involving the status of the
parties or suits involving the property in the
Philippines of non-resident defendants.
Special Jurisdiction over petition for writ of habeas
corpus OR application for bail in criminal cases in the
absence of all RTC judges in the province or city
Delegated Jurisdiction to hear and decide cadastral and
land registration cases where:
6
JURISDICTION OF THE METROPOLITAN
TRIAL COURTS AND MUNICIPAL TRIAL
COURTS
JURISDICTION OF THE MTCs IN CIVIL CASES
1. If the amount involved does not exceed P300,000
outside Metro Manila or does not exceed
P400,000 in Metro Manila in the following cases:
a. Actions involving personal property
b. Probate Proceeding (testate and intestate)
based on gross value of the estate
c. Admiralty and maritime cases
d. Demand for money
NOTE: Do not include Interest, Damages of
whatever kind, Attorney’s fees, Litigation
Expenses, and Costs (IDALEC). However, in
cases where the claim for damages is the
main cause of action, or one of the causes of
action, the amount of such claim shall be
considered in determining the jurisdiction of
the court.
2. Actions involving title to, or possession of, real
property, or any interest therein where the
assessed value of the property or interest therein
does not exceed P20,000 outside Metro Manila or
does not exceed P50,000 in Metro Manila
3. Inclusion and exclusion of voters
4. Those governed by the Rules on Summary
Procedure
a. Forcible entry and unlawful detainer (FEUD)
(1) With jurisdiction to resolve issue of
ownership to determine ONLY issue of
possession (provisional only)
(2) Irrespective of the amount of damages or
unpaid rentals sought to be recover
(3) Where attorney’s fees are awarded, the
same shall not exceed P20,000
b. Other civil cases, except probate proceeding,
where the total amount of the plaintiff’s
claim does not exceed P200,000 in MM,
exclusive of interests and costs.
1. There is no controversy over the land
2. In case of contested lands, the value does not
exceed P100, 000:
a. The value is to be ascertained:
(1) By the claimant’s affidavit
(2) By agreement of the respective
claimants, if there are more than one
(3) From the corresponding tax declaration
of the real property

NOTE: MTC decisions in cadastral and land
registration cases are appealable in the same
maner as RTC decisions
1st level courts:
a. Metropolitan Trial Court – Metro Manila;
b. Municipal Trial Courts in Cities – situated in cities
c. Municipal Circuit Trial Court – composed of
multi-sala
d. Municipal Trial Courts – in one municipality
JURISDICTION OVER SMALL CLAIMS,
SUMMARY PROCEDURE, AND BARANGAY
CONCILIATION
JURISDICTION OVER SMALL CLAIMS
MTCs, MeTCs and MCTCs shall have jurisdiction over
actions for payment of money where the value of the
claim does not exceed P100,000 exclusive of interest and
costs (Sec. 2, AM 08-8-7-SC, Oct. 27, 2009).
Actions covered are
1. Purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or
reimbursement of sum of money, and
2. The civil aspect of criminal actions, either filed
before the institution of the criminal action, or
reserved upon the filing of the criminal action in
court, pursuant to Rule 111 (Sec. 4, AM 08-8-7-
SC).
These claims may be:
1. For money owed under the contracts of lease,
loan, services, sale, or mortgage;
2. For damages arising from fault or negligence,
quasi-contract, or contract; and
3. The enforcement of a barangay amicable
settlement or an arbitration award involving a
money claim pursuant to Sec. 417 of RA 7160
(LGC).
CASES COVERED BY RULES ON SUMMARY PROCEDURE
All cases of forcible entry and unlawful detainer (FEUD),
irrespective of the amount of damages or unpaid rentals
sought to be recovered. Where attorney‘s fees are
awarded, the same shall not exceed P20,000;
All other cases, except probate proceedings where the
total amount of the plaintiff‘s claim does not exceed
P100,000 (outside Metro Manila) or P200,000 (in Metro
Manila), exclusive of interest and costs.
Prohibited Pleadings:
1. Motion to dismiss the compliant except on the
ground of lack of jurisdiction;
2. Motion for a bill of particulars;
7
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits, or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions. [Sec. 14, Prohibited pleadings and
motions]
CASES COVERED BY THE RULES ON BARANGAY
CONCILIATION
The Lupon of each barangay shall have the authority to
bring together the parties actually residing in the same
municipality or city for amicable settlement of all disputes
EXCEPT:
1. Where one party is the government or any
subdivision or instrumentality thereof
2. Where one party is a public officer or employee,
and the dispute relates to the performance of his
official functions
3. Offenses punishable by imprisonment exceeding
one (1) year or a fine exceeding P5,000
4. Offenses where there is no private offended party
5. Where the dispute involves real properties
located in different cities or municipalities unless
the parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon
6. Disputes involving parties who actually reside in
barangays of different cities or municipalities,
except where such barangay units adjoin each
other and the parties thereto agree to submit
their differences to amicable settlement by an
appropriate lupon
7. Such other classes of disputes which the
President may determine in the interest of justice
or upon the recommendation of the Secretary of
Justice
8. Any complaint by or against corporations,
partnerships, or juridical entities. The reason is
that only individuals shall be parties to barangay
conciliation proceedings either as complainants
or respondents
9. Disputes where urgent legal action is necessary
to prevent injustice from being committed or
further continued, specifically:
a. A criminal case where the accused is under
police custody or detention
b. A petition for habeas corpus by a person
illegally detained or deprived of his liberty or
one acting in his behalf
c. Actions coupled with provisional remedies,
such as preliminary injunction, attachment,
replevin and support pendente lite
 d.Where the action may be barred by statute of
limitation
10. Labor disputes or controversies arising from
employer-employee relationship
11. Where the dispute arises from the CARL
12. Actions to annul judgment upon a compromise
which can be directly filed in court.
action, or one of the causes of action, the
amount of such claim shall be considered in
determining the jurisdiction of the
court.[Admin Circ. 09-94]
4. All actions involving the contract of marriage and
family relations

NOTE: It is a condition precedent under Rule 16; can be
dismissed but without prejudice
JURISDICTION OF THE REGIONAL TRIAL
COURTS, FAMILY COURTS, AND SHARI’A
COURTS
JURISDICTION OF THE RTC IN CIVIL CASES
General Original Jurisdiction All cases not within the
exclusive jurisdiction of any court/tribunal/person/ body
exercising judicial or quasi-judicial functions
Exclusive Original Jurisdiction
1. The action is incapable of pecuniary estimation
a. Such as rescission of contract, action to
revive judgment, declaratory relief (1st part),
support, expropriation)
b. If the action is primarily for the recovery of a
sum of money, the claim is considered
capable of pecuniary estimation, and
jurisdiction over the action will depend on
the amount of the claim. [RCPI v. CA (2002)]
c. If the basic issue is something other than the
right to recover a sum of money, if the money
claim is purely incidental to, or a
consequence of, the principal relief sought,
the action is one where the subject of the
litigation may not be estimated in terms of
money. [Soliven v. Fastforms (1992)]
5.
2. Title to, possession of, or interest in, real
property with assessed value exceeding P20,000
outside Metro Manila, or exceeds P50,000 in
Metro Manila
a. Except: Forcible entry and unlawful detainer
cases
3. If the amount involved exceeds P300,000 outside
Metro Manila or exceeds P400,000 in Metro
Manila in the following cases:
a. Admiralty and maritime cases
b. Matters of Probate (testate and intestate)
c. Other actions involving personal property
d. Demand for money
NOTE: The exclusion of the term “damages of
whatever kind” in determining the
jurisdictional amount under Sec. 19(8) and
Sec. 33 (1) of BP 129, as amended by RA
7691, applies to cases where the damages
are merely incidental to or a consequence of
the main cause of action. However, if the
claim for damages is the main cause of
8
JURISDICTION OF FAMILY COURTS (RA 8369)
a. Petitions for guardianship, custody of
children and habeas corpus involving
children
b. Petitions for adoption of children and the
revocation thereof
c. Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to status and property relations of
husband and wife or those living together
under different status and agreements, and
petitions for dissolution of conjugal
partnership of gains
d. Petitions for support and/or
acknowledgment
e. Summary judicial proceedings brought under
the provisions of EO 209 (Family Code)
f. Petitions for declaration of status of children
as abandoned, dependent or neglected
children, petitions for voluntary or
involuntary commitment of children, the
suspension, termination or restoration of
parental authority and other cases
cognizable under PD 603, EO 56 (1986) and
other related laws
g. Petitions for the constitution of the family
home
NOTE: In areas where there are no Family Courts,
the above-enumerated cases shall be adjudicated
by the RTC (RA 8369)
To hear and decide intra-corporate
controversies, as per Sec. 52, Securities and
Regulations Code
a. Cases involving devises or schemes
employed by or any acts, of the board of
directors, business associates, its officers or
partnership, amounting to fraud and
misrepresentation which may be detrimental
to the interest of the public and/or of the
stockholders, partners, members of
associations or organizations registered with
the SEC
b. Controversies arising out of intra-corporate
or partnership relations, between and among
stockholders, members or associates;
between any or all of them and the
corporation, partnership or association of
which they are stockholders, members or
associates, respectively; and between such
corporation , partnership or association and
the state insofar as it concerns their
individual franchise or right to exist as such
entity
 c. Controversies in the election
appointments of directors, trustees, officers
or managers of such corporations,
partnerships or associations
d. Petitions of corporations, partnerships or
associations to be declared in the state of
suspension of payments in cases where the
corporation, partnership of association
possesses sufficient property to cover all its
debts but foresees the impossibility of
meeting them when they respectively fall due
or in cases where the corporation,
partnership of association has no sufficient
assets to cover its liabilities, but is under the
management of a Rehabilitation Receiver or
Management Committee.
Concurrent Jurisdiction
1. With the Supreme Court in actions affecting
ambassadors, other public ministers and consuls
2. With the SC and CA in petitions for certiorari,
prohibition and mandamus against lower courts
and bodies in petitions for quo warranto, habeas
corpus, and writ of continuing mandamus on
environmental cases
3. With the SC, CA and Sandigabayan in petitions for
writs of habeas data and amparo
4. With Insurance Commissioner – claims not
exceeding P100,000
Appellate Jurisdiction over cases decided by lower
courts in their respective territorial jurisdictions EXCEPT
decisions of lower courts in the exercise of delegated
jurisdiction.
Special Jurisdiction - SC may designate certain branches
of RTC to try exclusively criminal cases, juvenile and
domestic relations cases, agrarian cases, urban land
reform cases not falling within the jurisdiction of any
quasi-judicial body and other special cases in the interest
of justice.
JURISDICTION OF THE SHARI’A COURTS
Exclusive Jurisdiction
1. All cases involving custody, guardianship,
legitimacy, paternity and filiation arising under
the Code of Muslim Personal Laws;
2. All cases involving disposition, distribution and
settlement of estate of deceased Muslims,
probate of wills, issuance of letters of
administration of appointment administrators or
executors regardless of the nature or aggregate
value of the property;
3. Petitions for the declaration of absence and death
for the cancellation and correction of entries in
the Muslim Registries;
4. All actions arising from the customary contracts
in which the parties are Muslims, if they have not
specified which law shall govern their relations;
and
5. All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus and all other
or auxiliary writs and processes in aid of its
appellate jurisdiction
Concurrent Jurisdiction
1. Petitions of Muslim for the constitution of the
family home, change of name and commitment of
an insane person to an asylum
2. All other personal and legal actions not
mentioned in par 1 (d) wherein the parties
involved are Muslims except those for forcible
entry and unlawful detainer, which shall fall
under the exclusive jurisdiction of the MTC.
3. All special civil actions for interpleader or
declaratory relief wherein the parties are
Muslims or the property involved belongs
exclusively to Muslims
Cases Cognizable
1. Offenses defined and punished under PD 1083
2. Disputes relating to:
a. Marriage
b. Divorce
c. Betrothal or breach of contract to marry
d. Customary dowry (mahr)
e. Disposition and distribution of property
upon divorce
f. Maintenance and support and consolatory
gifts (mut’a)
g. Restitution of marital rights
3. Disputes relative to communal properties
NOTE: The Shari’a District Court or the Shari’a Circuit
Court may constitute an Agama Arbitration Council to
settle certain cases amicably and without formal trial.
The Council is composed of the Clerk of Court as
Chairperson and a representative of each of the
conflicting parties.
JURISDICTION OF THE SANDIGANBAYAN
Original Jurisdiction in all cases involving:
1. Violations of RA 3019 (Anti-Graft and Corrupt
Practices Act)
2. Violations of RA 1379 (Anti-Ill-Gotten Wealth
Act)
3. Sequestration cases (E.O. Nos. 1,2,14,14-A)
4. Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC)
where one or more of the principal accused are
occupying the following positions in the
government, whether in permanent, acting or
interim capacity at the time of the commission of
the offense:
a. Officials of the executive branch occupying
the positions of regional director and higher,
otherwise classified as Grade 27 and higher,
of the Compensation and Position
Classification Act of 1989 (RA 6758)
b. Members of Congress and officials thereof
classified as G-27 and up under RA 6758
c. Members of the Judiciary without prejudice
to the provisions of the Constitution
9
 d. Chairmen and Members of the Constitutional
Commissions without prejudice to the
provisions of the Constitution
e. All other national and local officials classified
as Grade 27 and higher under RA 6758
f. Other offenses or felonies committed by the
public officials and employees mentioned in
Sec. 4(a) of RA 7975 as amended by RA 8249
in relation to their office
g. Civil and criminal cases filed pursuant to and
in connection with EO Nos. 1, 2, 14-A (Sec. 4,
RA 8249)
NOTE: Without the office, the crime cannot
be committed.
Appellate Jurisdiction Over final judgments, resolutions
or orders of the RTC whether in the exercise of their
original or appellate jurisdiction over crimes and civil
cases falling within the original exclusive jurisdiction of
the Sandiganbayan but which were committed by public
officers below Salary Grade 27.
Concurrent Original Jurisdiction with SC, CA, and RTC
for petitions for writs of habeas data and amparo
NOTE: The requisites that the offender the offender
occupies salary Grade 27 and the offense must be
intimately connected with the official function must
concur for the SB to have jurisdiction
JURISDICTION OF THE COURT OF TAX
APPEALS
UNDER RA 9282 and RULE 5, AM 05-11-07 CTA
Exclusive Original or Appellate Jurisdiction to Review
by Appeal:
1. Decisions of CIR in cases involving disputed
assessments, refunds of internal revenue taxes,
fees or other charges, penalties in relation
thereto, or other matters arising under the NIRC
or other laws administered by BIR;
2. Inaction by CIR in cases involving disputed
assessments, refunds of IR taxes, fees or other
charges, penalties in relation thereto, or other
matters arising under the NIRC or other laws
administered by BIR, where the NIRC or other
applicable law provides a specific period of
action, in which case the inaction shall be deemed
an implied denial;
3. Decisions, orders or resolutions of the RTCs in
local taxes originally decided or resolved by them
in the exercise of their original or appellate
jurisdiction;
4. Decisions of the Commissioner of Customs
a. in cases involving liability for customs duties,
fees or other charges, seizure, detention or
release of property affected, fines, forfeitures
or other penalties in relation thereto, or
10
b. other matters arising under the Customs law
or other laws, part of laws or special laws
administered by BOC;
5. Decisions of the Central Board of Assessment
Appeals in the exercise of its appellate
jurisdiction over cases involving the assessment
and taxation of real property originally decided
by the provincial or city board of assessment
appeals;
6. Decision of the secretary of Finance on customs
cases elevated to him automatically for review
from decisions of the Commissioner of Customs
which are adverse to the government under Sec.
2315 of the Tariff and Customs Code;
7. Decisions of Secretary of Trade and Industry in
the case of non-agricultural product, commodity
or article, and the Secretary of Agriculture in the
case of agricultural product, commodity or
article, involving dumping duties and
counterveiling duties under Secs. 301 and 302,
respectively, of the Tariff and Customs Code, and
safeguard measures under RA 8800, where either
party may appeal the decision to impose or not to
impose said duties.
Exclusive Original Jurisdiction
1. Over all criminal cases arising from violation of
the NIRC and the TCC and other laws, part of
laws, or special laws administered by the BIR or
the BOC where the principal amount of taxes and
fees, exclusive of charges and penalties claimed is
less than P1M or where there is no specified
amount claimed (the offenses or penalties shall
be tried by the regular courts and the jurisdiction
of the CTA shall be appellate);
2. In tax collection cases involving final and
executory assessments for taxes, fees, charges
and penalties where the principal amount of
taxes and fees, exclusive of charges and penalties
claimed is less than P1M tried by the proper MTC,
MeTC and RTC.
Exclusive Appellate Jurisdiction
1. In criminal offenses
a. Over appeals from the judgment, resolutions
or orders of the RTC in tax cases originally
decided by them, in their respective
territorial jurisdiction, and
b. Over petitions for review of the judgments,
resolutions or orders of the RTC in the
exercise of their appellate jurisdiction over
tax cases originally decided by the MeTCs,
MTCs, and MCTCs in their respective
jurisdiction.
2. In tax collection cases
a. Over appeals from the judgments,
resolutions or orders of the RTC in tax
collection cases originally decided by them in
their respective territorial jurisdiction; and
b. Over petitions for review of the judgments,
resolutions or orders of the RTC in the
exercise of their appellate jurisdiction over
tax collection cases originally decided by the
 MeTCs, MTCs and MCTCs in their respective
jurisdiction.
JURISDICTION OF THE COURT OF APPEALS
JURISDICTION OF THE COURT OF APPEALS IN CIVIL
CASES
Exclusive Original Jurisdiction in actions for annulment
of judgments of the RTC
Concurrent Original Jurisdiction
1. With SC to issue writs of certiorari, prohibition
and mandamus against the RTC, CSC, CBAA, other
quasi-judicial agencies mentioned in Rule 43, and
the NLRC (however, this should be filed first with
the CA as per St. Martin Funeral Home case), and
writ of kalikasan.
2. With the SC and RTC to issue writs of certiorari,
prohibition and mandamus against lower courts
and bodies and writs of quo warranto, habeas
corpus, whether or not in aid of its appellate
jurisdiction, and writ of continuing mandamus on
environmental cases.
3. With SC, RTC and Sandiganbayan for petitions for
writs of amparo and habeas data where the
action involves public data or government office
Exclusive Appellate Jurisdiction
1. By way of ordinary appeal from the RTC and the
Family Courts.
2. By way of petition for review from the RTC
rendered by the RTC in the exercise of its
appellate jurisdiction.
3. By way of petition for review from the decisions,
resolutions, orders or awards of the CSC, CBAA
and other bodies mentioned in Rule 43 and of the
Office of the Ombudsman in administrative
disciplinary cases.
4. Over decisions of MTCs in cadastral or land
registration cases pursuant to its delegated
jurisdiction; this is because decisions of MTCs in
these cases are appealable in the same manner as
decisions of RTCs.
JURISDICTION OF THE SUPREME COURT
JURISDICTION OF THE SUPREME COURT IN CIVIL
CASES
Exclusive Original Jurisdiction in petitions for
certiorari, prohibition and mandamus against the CA,
COMELEC, COA, CTA, Sandiganbayan
Concurrent Original Jurisdiction
1. With Court of Appeals in petitions for certiorari,
prohibition and mandamus against the RTC, CSC,
Central Board of Assessment Appeals, NLRC,
Quasi-judicial agencies, and writ of kalikasan, all
subject to the doctrine of hierarchy of courts.
11
2. With the CA and RTC in petitions for certiorari,
prohibition and mandamus against lower courts
and bodies and in petitions for quo warranto, and
writs of habeas corpus, all subject to the doctrine
of hierarchy of courts.
3. With CA, RTC and Sandiganbayan for petitions for
writs of amparo and habeas data
4. Concurrent original jurisdiction with the RTC in
cases affecting ambassadors, public ministers and
consuls.
Appellate Jurisdiction
1. By way of petition for review on certiorari
(appeal by certiorari under Rule 45) against CA,
Sandiganbayan, RTC on pure questions of law
and CTA in its decisions rendered en banc.
2. In cases involving the constitutionality or validity
of a law or treaty, international or executive
agreement, law, presidential decree,
proclamation, order, instruction, ordinance or
regulation, legality of a tax, impost, assessment,
toll or penalty, jurisdiction of a lower court; and
3. All cases in which the jurisdiction of any court is
in issue;
4. All cases in which an error or question of law is
involved
5. The SC may resolve factual issues in certain
exceptional circumstances (Josefa v. Zhandong,
2003)
a. The conclusion is grounded on speculations/
surmises /conjectures
b. The inference is manifestly
mistaken/absurd/impossible;
c. There is grave abuse of discretion;
d. The judgment is based on a misapprehension
of facts;
e. The findings of fact are conflicting;
f. There is no citation of specific evidence on
which the factual findings are based;
g. The finding of absence of facts is
contradicted by the presence of evidence on
record;
h. The findings of the CA are contrary to those
of the trial court;
i. The CA manifestly overlooked certain
relevant and undisputed facts that, if
properly considered, would justify a different
conclusion;
j. The findings of the CA are beyond the issues
of the case;
k. Such findings are contrary to the admissions
of both parties.
TOTALITY RULE
Where there are several claims or causes of actions
between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the
totality of the claims in all the claims of action,
irrespective of whether the causes of action arose out of
the same or different transactions (Sec. 33[1], BP 129).
12
COMMENCEMENT OF
(3) As to cause or foundation
(a) Real, or
(b) Personal

ACTIONS TO TRIAL ORDINARY CIVIL ACTIONS: An ordinary civil action is

ACTIONS
ACTIONS IN GENERAL: An ordinary suit in a court of
justice by which one party prosecutes another for the
enforcement/ protection of a right or the
prevention/redress of a wrong [Santos v. Vda. De Caparas,
(1959)]
An action is a formal demand of one’s legal rights in a
court of justice in the manner prescribed by the court or
by the law. Determinative fact which converts a claim into
an action or suit is the filing of the same with a court of
justice. (Herrera)
Action v. Cause of Action
one that is governed by the rules for ordinary civil actions
[Rule 1, Sec. 3(a) par 2]
SPECIAL CIVIL ACTIONS: A special civil action is one that
is subject to the specific rules prescribed for a special civil
action; it is also governed by the rules for ordinary civil
actions [Rule 1, Sec. 3(a) par 2]
CRIMINAL ACTIONS: A criminal action is one by which
the State prosecutes a person for an act or omission
punishable by law. [Rule 1, Sec. 3(b)]
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or
redress of a wrong. [Rule 1, Sec. 3(a) par 1]

CAUSE OF ACTION ACTION A special proceeding is a remedy by which a party seeks to

establish a status, a right, or a particular fact. [Rule 1, Sec.
A cause of action is the 3 (c)]
basis of the action filed Ordinary suit in a court of
[Rule 2, Sec.1] justice, by which one party
prosecutes another for the Action Special Proceeding
Fact or combination of facts enforcement or protection
which affords a party a of a right, or the As to Parties
right to judicial prosecution or redress of a Involves at least 1 party
Involves 2 or more parties
interference in his wrong or 2 or more
behalf. [Into v. Valle parties in proper cases
(2005)] As to cause of action
Involves a right and a
May involve a right, but
Kinds of Action violation of such right by
there need not be a
the defendant which causes
violation of this right
1. Civil or Criminal some damage/prejudice
a. Civil – one by which a party sues another for upon the plaintiff
the enforcement or protection of a right, or As to formalities
the prevention or redress of a wrong Requires no such
b. Criminal – one by which the State prosecutes Requires the application of
formalities, as it
a person for an act or omission punishable by legal remedies in
may be granted upon
law accordance with the
application
prescribed rules
2. Ordinary or Special – both are governed by the As to governing rules
rules of ordinary civil actions, subject to the
specific rules prescribed for a special civil action Ordinary rules of procedure Special rules of procedure
a. Special As to appeal from an interlocutory
b. Ordinary – may be classified as: Order
(1) As to place
(a) Transitory – action founded on privity Cannot be directly and
of contract between parties; brought immediately appealed to Can be immediately and
in the place where the party resides the appellate court until directly appealed to the
(b) Local – action founded on privity of after final judgment on the appellate court
estate only and there is no privity of merits
contract; brought in a particular place
(2) As to object – or against which the action PERSONAL ACTIONS AND REAL ACTIONS
is directed, actions may be classified as:
(a) In personam; Real Actions: Actions affecting title to or possession of real
(b) In rem; or property, or interest therein. [Rule 4, Sec. 1 par 1]
(c) Quasi in rem

13
Personal Actions: All other actions are personal actions.
E.g. Action to recover real E.g. Action to recover sum
[Rule 4, Sec.2]
property of money
Importance of Distinction: For purposes of determining
venue of the action (Riano) If action is founded on privity of contract between parties,
1. Real actions shall be commenced and tried in the then the action is transitory
proper court which has jurisdiction over the area
wherein the real property involved, or a portion But if there is no privity of contract and the action is
thereof, is situated. [Rule 4, Sec.1] founded on privity of estate only, such as a covenant that
2. Personal actions may be commenced and tried runs with the land in the hands of remote grantees, then
where the plaintiff or any of the principal the action is local and must be brought in the place where
plaintiffs resides, or where the defendant or any the land lies
of the principal defendants resides, or in the case
of a non-resident defendant, where he may be
found, at the election of the plaintiff. [Rule 4, ACTIONS IN REM, IN PERSONAM, AND QUASI IN REM
Sec.2]
ACTION IN ACTION
ACTION IN REM
NOTE: Not every action involving a real property is a PERSONAM QUASI IN REM
real action because the realty may only be incidental Directed
to the subject matter of the suit. To be a real action, it Directed against Directed against against
is not enough that the action must deal with real the thing itself particular persons particular
property. It is important that the matter in litigation persons
must also involve any of the following issues: title to, Jurisdiction
ownership, possession, paritition, foreclosure or over the
mortgage or any interest in real property. (Riano) person of
Jurisdiction over Jurisdiction over
defendant is
Personal the person of the the person of
Real action Mixed action not required
action defendant not defendant
as long as
required required
Personal jurisdiction
property is over the res is
sought to be required
Ownership or recovered or Both real and Proceeding to
possession of real damages for personal subject the
property is breach of properties are interest of a
involved Contract or the involved Proceeding to named
enforcement of a Action to impose a
determine the defendant
contract are responsibility or
state or over a
sought liability upon a
condition of a particular
person directly
Founded on Founded on thing property to an
Founded on both
privity of real privity of obligation or
estate contract lien burdening
Filed in the court Filed in the court it
where the where the The rules on Judgment is
Judgment
property (or any plaintiff or any of venue of real Judgment is binging only upon
binging upon
portion thereof) the defendants actions govern binding on the impleaded parties
particular
is situated resides, at the whole world or their successors
persons
plaintiff’s option in interest
E.g. Action for
E.g. Probate E.g. Specific
partition;
proceeding, performance,
LOCAL AND TRANSITORY ACTIONS foreclosure of
cadastral action for breach
real estate
proceeding of contract
Local action Transitory action mortgage
One that could be instituted One that could be
in one specific place prosecuted in any one of The question of whether the trial court has jurisdiction
[Manila Railroad v. several places [Manila depends on the nature of the action, i.e., whether the
Attorney-General (1911)] Railroad v. Attorney- action is in personam, in rem, or quasi in rem. [Riano citing
General (1911)] Biaco v. Philippine Countryside Rural Bank (2007)]
Venue depends upon the Its venue depends upon the
location of the property residence of the plaintiff or The distinction is important to determine whether or not
involved in the litigation the defendant at the option jurisdiction over the person of the defendant is required
(Riano) of the plaintiff (Riano) and consequently to determine the type of summons to be
employed. [Riano citing Gomez v. Court of Appeals (2004)]

14
INDEPENDENT CIVIL ACTIONS

Rule 111, Sec 3: When civil action may proceeded

independently. — In the cases provided for in Articles 32,
33, 34 and 2176 of the Civil Code of the Philippines, the
independent civil action may be brought by the offended
party. It shall proceed independently of the criminal
action and shall require only a preponderance of
evidence. In no case, however, may the offended party
recover damages twice for the same act or omission
charged in the criminal action.

15
 CAUSE OF ACTION
CAUSE OF ACTION: A cause of action is the act or
omission by which a party violates a right of another.
[Rule 2, Sec.2]
Every ordinary civil action must be based on a cause of
action [Rule 2, Sec. 1]
A failure to state a cause of action is not the same as an
absence or a lack of cause of action. The former refers to
an insufficiency in the allegations of the complaint while
the latter refers to the failure to prove or to establish by
evidence one’s stated cause of action. [Riano]

A cause of action stems from the sources of obligations
under Art. 1156, CC - Law, Contract, Quasi-contract, Acts
and omissions punishable by law and Quasi-delict.
[Sagrada Orden etc v. National Coconut Corporation
(1952)]
TEST OF THE SUFFICIENCY OF A CAUSE OF ACTION
Whether or not admitting the facts alleged, the court
could render a valid verdict in accordance with the prayer
of the complaint [Santos v. de Leo (2005)]

Elements of a Cause of Action:

1. Plaintiff’s legal right; SPLITTING A SINGLE CAUSE OF ACTION; EFFECTS
2. Defendant’s correlative obligation to respect
plaintiff’s right; Definition: The act of instituting two or more suits on the
3. Defendant’s act/omission in violation of basis of the same cause of action. [Rule 2, Sec.4]
plaintiff’s right [Ma-ao Sugar Central v. Barrios
(1947)] The act of dividing a single or indivisible cause of action
into several parts or claims and bringing several actions
thereon. (Regalado)
RIGHT OF ACTION vs. CAUSE OF ACTION (Regalado)
The test of singleness of cause of action lies in the
singleness of the delict or wrong violating the rights of
Right of action one person.
Cause of action
The remedial right or right For a single cause of action or violation of a right, the
The delict or wrongful act plaintiff may be entitled to several reliefs. It is the filing of
to relief granted by law to a
or omission committed by separate complaints for these several reliefs that
party to institute an action
the defendant in violation constitutes splitting up of the cause of action which is
against a person who has
of the primary rights of the proscribed by Rule 2, Sec. 3 and 4. [City of Bacolod v. SM
committed a delict or
plaintiff Brewery (1969)]
wrong against him
Right to sue as a
The delict or wrong Effects:
consequence of the delict
Determined by the 1. The filing of one or a judgment upon the merits in
Whether such acts give him averments in the pleading any one is available as a ground for the dismissal
right of action determined regarding the acts of the others. [Rule 2, Sec.4]
by substantive law committed by the 2. Filing of the 1st complaint may be pleaded in
defendant abatement of the 2nd complaint, on the ground of
litis pendentia; or
There can be no right of action without a cause of action 3. A judgment upon the merits in any of the
being first established [Regalado citing Español v. The complaints is available as ground for dismissal of
Chairman of PVA (1985)] the others based on res judicata.
4. A Motion to Dismiss under Rule 16 (litis
pendentia or res judicata) may be filed in order
FAILURE TO STATE CAUSE OF ACTION that the complaint may be dismissed.

There is a failure to state a cause of action if the pleading
asserting the claim states no cause of action. This is a
ground for a motion to dismiss. [Rule 16, Sec.1(g)]
It is submitted that the failure to state a cause of action
does not mean that the plaintiff has “no cause of action.” It
only means that the plaintiff’s allegations are insufficient
for the court to know that the rights of the plaintiff were
violated by the defendant. [Riano]
There is a failure to state a cause of action if allegations in
the complaint taken together, do not completely spell out
the elements of a particular cause of action. [Riano]
16
Ratio: A party may not institute more than one suit for a
single cause of action. [Rule 2, Sec. 3]
1. To prevent repeated litigation between the same
parties in regard to the same subject or
controversy;
2. To protect the defendant from unnecessary
vexation. Nemo debet vexare pro una et eadem
causa (No man shall be twice vexed for one and
the same cause);
3. To avoid the costs and expenses incident to
numerous suits. [City of Bacolod v. SM Brewery
(1969)]
 therein notwithstanding the misjoinder of the same. This
is because if the court has no jurisdiction to try the
JOINDER OF CAUSES OF ACTION misjoined action, then the same must be severed and if
not so severed, any adjudication rendered by the court
It is the assertion of as many causes of action as a party with respect to the same would be a nullity. [Ada v. Baylon
may have against another in one pleading alone. It is also (2012)]
the process of uniting 2 or more demands or rights of
action in one action. [Riano citing Rule 2, Sec. 5 and CJS] There is no sanction against non-joinder of separate
causes of action since a plaintiff needs only a single cause
By a joinder of actions, or more properly, a joinder of of action to maintain an action (Regalado).
causes of action is meant the uniting of two or more
demands or rights of action in one action, the statement of In case of misjoinder of causes of action, the cause of
more than one cause of action in a declaration [Ada v. action erroneously joined need only be separated and
Baylon (2012)] dismissed, without affecting the action with regard to
other causes of action (Regalado).
SPLITTING OF CAUSES JOINDER OF CAUSES
There is a single cause of Contemplates several
action causes of action
Prohibited Encouraged
It minimizes multiplicity
It causes multiplicity of
of suits and
suits and double vexation
inconvenience on the
on part of defendant
parties

Ratio: To avoid a multiplicity of suits and to expedite

disposition of litigation at minimum cost [Ada v. Baylon
(2012)]

The rule however is purely permissive as the plaintiff can

always file separate actions for each cause of action.
[Baldovi v. Sarte, (1917)]

Joinder shall not include special civil actions governed by

special rules. [Ada v. Baylon (2012)]

Requisites [Rule 2, Sec. 5]:

1. The party joining the causes of action must
comply with the rules on joinder of parties;
2. The joinder shall not include special civil actions
or actions governed by special rules;
3. Where causes of action are between the same
parties but pertain to different
venues/jurisdictions, the joinder may be allowed
in the RTC provided one of the causes of action
are within the RTC’s jurisdiction and the venue
lies therein;
4. TOTALITY RULE - Where the claims in all the
causes of action are principally for recovery of
money, the aggregate amount claimed shall be
the test of jurisdiction.

MISJOINDER OF CAUSES OF ACTION (Rule 2, Sec. 6)

Misjoinder of causes of action is not a ground for

dismissal of an action. A misjoined cause of action may, on
motion or motu propio, be severed and proceeded with
separately. However, if there is no objection to the
improper joinder or the court did not motu proprio direct
a severance, then there exists no bar in the simultaneous
adjudication of all the erroneously joined causes of action.
However, this rule exists only when the court trying the
case has jurisdiction over all of the causes of action

17
 PARTIES TO CIVIL ACTIONS
PARTIES TO A CIVIL ACTION
REQUIREMENTS FOR A PERSON TO BE A PARTY TO A
CIVIL ACTION: Plaintiff – one having an interest in the matter of the
action or in obtaining the relief demanded. The term may
For a Person to be a Party to a Civil Action: either refer to the claiming party, counter-claimant, cross-
1. He must be a natural or juridical person or an claimant, or third-party plaintiff
entity authorized by law
2. He must have legal capacity to sue; and Defendant – one claiming an interest in the controversy
3. He must be the real party-in-interest or the subject thereof adverse to the plaintiff. Term may
also include:
A party must be a natural or juridical person or an entity 1. An unwilling co-plaintiff or one who should be
authorized by law joined as plaintiff but refuses to give his consent
- Only natural and juridical persons may be parties thereto (Sec. 10, Rule 3)
- See Art. 44, NC 2. The original plaintiff becoming a defendant to the
- Entities authorized by law may also be parties, original counterclaim of defendant; and
e.g.: 3. One necessary to a complete determination or
a. Partnership has a juridical personality settlement of the questions involved therein
separate and distinct from that of each of the
partners, even in case of failure to comply
with the requirements in Art 1772 NCC (Art. REAL PARTIES IN INTEREST
1768 NCC)
b. Labor organizations organized in accordance Who is a real party-in-interest: (Rule 3, Sec. 2)
with law may file a complaint or petition in 1. The party who stands to be benefited/injured by
court in representation of its members (Art the judgment in the suit;
242 LC) 2. The party entitled to the avails of the suit.
c. As to properties of the Roman Catholic
Church, the Archbishop or diocese to which Rules:
they belong may be a party (Ponce v. Roman 1. Every action must be prosecuted or defended in
Catholic) the name of the real party in interest. [Rule 3,
Sec.2]
Legal Capacity to Sue 2. The party’s interest must be direct, substantial
and material [Sumalo v. Litton (2006)].
Legal capacity to sue or be sued means that the party is 3. Husband and wife shall sue and be sued jointly,
free from general disability (e.g. minority or insanity) or, except as provided by law [Rule 3, Sec. 4]
in case of juridical entities, that it must be duly registered 4. A minor or a person alleged to be incompetent
in accordance with law may sue or be sued, with the assistance of his
father, mother, guardian, or if he has none, a
Under Sec. 4, Rule 8, legal capacity to sue must be averred guardian ad litem. [Rule 3, Sec. 5]
5. Minors (represented by their parents) are real
Lack of legal personality to parties in interest under the principle of
Lack of legal capacity to sue intergenerational responsibility. [Oposa v.
sue
The plaintiff’s general Factoran (1993)]
disability to sue, such as on 6. If a party becomes incompetent/ incapacitated
account of minority, The plaintiff is not the real during the pendency of the action, the action
insanity, incompetence, party in interest survives and may be continued by/against the
lack of juridical personality incompetent/ incapacitated assisted by his legal
or any other general guardian or guardian ad litem [Rule 3, Sec. 18]
disqualifications
It can be used as ground for Failure to Name Real Party in Interest
It can be a ground for a a MTD based on the failure a. Effect: a motion to dismiss may be filed on the
MTD [Rule 16 (1) (d)] of complaint to state a ground that the complaint states no cause of
cause of action. [Rule 16 action
(1) (g)] (a) If a complaint is filed for and in behalf of a
plaintiff who is not authorized to do so, the
Real- Party in Interest complaint is not deemed filed
b. Remedies:
Interest within the meaning of the Rules of Court means (1) Amendment of pleadings (Alonso v. Villamor,
material interest or an interest in issue to be affected by 1910); or
the decree or judgment of the case, as distinguished from (2) Complaint may be deemed amended to
mere curiosity about the question involved. [Ang v. Sps. include the real party-in-interest (Balquidra
Ang (2012)] v. CFI Capiz, 1977)
c. Exception: A real litigant may be held bound as a
party even if not formally impleaded provided he
18
 had his day in court (Albert v. University joined. therein will not resolve the
Publishing Co., 1958) entire controversy if a
necessary party is not joined
INDISPENSABLE PARTIES They are those with such They are those whose
an interest in the presence is necessary to
Who: An indispensable party is a real party-in-interest controversy that a final adjudicate the whole
without whom no final determination can be had of an decree would necessarily controversy but whose
action. [Rule 3, Sec.7] affect their rights so that interests are so far
the court cannot proceed separable that a final decree
A party who has such an interest in the controversy or without their presence. can be made in their
subject matter that a final adjudication cannot be made, in absence without affecting
his absence, without injuring or affecting that interest. them.
[Riano]
Whenever in any pleading in which a claim is asserted a
The joinder of a party becomes compulsory when the one necessary party is not joined, the pleader is under
involved is an indispensable party. [Riano citing Rule 3, obligation to:
Sec.7] 1. Set forth the name of the necessary party, if
known, and
A person is NOT an indispensable party if his interest in 2. State the reason why the necessary party is
the controversy or subject matter is separable from the omitted. [Riano citing Rule 3, Sec. 9 par 1]
interest of the other parties, so that it will not necessarily
be directly or injuriously affected by a decree which does The non-inclusion of a necessary party does not prevent
not complrete justice between them. [Riano] the court from proceeding in the action, and the judgment
rendered therein shall be without prejudice to the rights
of such necessary party [Rule 3, Sec. 9 par 3]
REPRESENTATIVE AS PARTIES

Who: Those acting in fiduciary capacity, such as a INDIGENT PARTIES

trustee/guardian/executor/administrator or a party
authorized by law or ROC. (Rule 3, Sec. 3)
The beneficiary shall be included in the title of the case
and shall be deemed to be the real party in interest.
General Rule: An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be sued
without joining the principal.
Exception: If the contract involves things belonging to the
principal. [Art. 1883, CC]
NECESSARY PARTIES
Who: An indigent is one who has no money or property
sufficient and available for food, shelter, and basic
necessities (Rule 3, Sec. 21)
Authority to Litigate as Indigent Party
- May be granted upon an ex parte application and
hearing
- It shall include an exemption from payment of
docket and other lawful fees (e.g. fees for TSN)
NOTE: The amount of docket and other lawful
fees is a lien on any judgment rendered in favor
of indigent party, unless court otherwise
provides.

Who: One who is not indispensable but ought to be joined Adverse party may contest: Authority may be contested
as a party if complete relief is to be accorded as to those by the adverse party at any time before judgment is
already parties, or for a complete determination or rendered
settlement of the claim subject of the action (Rule 3, Sec. - If the court determines after hearing that the
8) party declared indigent has sufficient income or
property, the proper docket and other lawful fees
Indispensable parties v. Necessary parties shall be assessed and collected by the clerk of
court
Indispensable parties [Rule Necessary parties [Rule 3,
3, Sec. 7] Sec. 8]
Must be joined under any Should be joined whenever ALTERNATIVE DEFENDANTS
and all conditions, his possible; the action can
presence being a sine qua proceed even in their Where the plaintiff is uncertain against whom of several
non for the exercise of absence because their persons he is entitled to relief, he may join any or all of
judicial power interest is separable from them in the alternative, although a right to relief against
that of the indispensable one may be inconsistent with a right to relief against the
party other. (Rule 3, Sec. 13)
No valid judgment if The case may be determined
indispensable party is not in court but the judgment
COMPULSORY AND PERMISSIVE JOINDER OF PARTIES
19

Compulsory Joinder of Indispensable Parties (Rule 3, Sec.
7) - Parties in interest without whom no final
determination can be had of an action shall be joined
either as plaintiffs or defendants
Joinder of INDISPENSABLE PARTIES are mandatory
Effect of Absence of Indispensable Parties:
1. It is the duty of the court to stop the trial and to
order the inclusion of such party (Cortez v.
Avila). Such an order is unavoidable
2. Absence of an indispensable party renders all
subsequent actuations of the court null and void,
for want of authority to act, not only as to the
present parties but even as to those present
Permissive Joinder (Rule 3, Sec. 6) - Parties can be joined,
as plaintiffs or defendants, in one single complaint or may
themselves maintain or be sued in separate suits.
Requisites of Permissive Joinder:
1. Right to relief arises out of the same transaction
or series of transactions
a. Transaction - not only a stipulation or
agreement but any event resulting in wrong,
without regard to whether the wrong has
been done by violence, neglect, or breach of
contract
b. Series of transaction – transactions
connected with the same subject of the action
2. There is a question of law or fact common to all
the plaintiffs or defendants
3. Such joinder is not otherwise proscribed by the
rules on jurisdiction and venue
Distinguished from Joinder of Causes of Action
- In joinder of causes of action, it is enough if the
cause of action arises out of the same contract
- Unlike permissive joinder of parties, in joinder of
causes of action, there is no need for a common
question of fact or law
MISJOINDER AND NON-JOINDER OF PARTIES
A party is misjoined when he is made a party to the action
although he should not be impleaded.
A party is not joined when he is supposed to be joined but
is not impleaded in the action. (Riano)
Effect:
1. Neither misjoinder nor non-joinder of parties is a
ground for dismissal of an action. [Rule 3, Sec. 11]
a. Non-joinder of an indispensable party is not
a ground for outright dismissal. Reasonable
opportunity must be given for his inclusion
by amendment of the complaint [Cortez v
Avila (1957)].
b. In case of non-joinder of a necessary party, if
the court should find the reason for such
20
omission unmeritorious, it may order the
inclusion of such omitted necessary party
2. Parties may be dropped or added by order of the
court on motion of any party or on its own
initiative at any stage of the action and on such
terms as are just. [Rule 3, Sec.11]
Objections to defects in parties: Objections to defects in
parties should be made at the earliest opportunity.
- The moment such defect becomes apparent, a
motion to strike the names of the parties must be
made.
- Objections to misjoinder cannot be raised for the
first time on appeal [Lapanday Agricultural &
Development Corporation v. Estita (2005)]
CLASS SUIT
Requisites: (Rule 3, Sec. 12)
1. Subject matter of the controversy is one of
common/general interest to many persons;
2. The persons are so numerous that it is
impracticable to join them all as parties (i.e.
impracticable to bring them all before the court);
3. Parties bringing the class suit are sufficiently
numerous and representative of the class and can
fully protect the interests of all concerned;
4. The representative sues/defends for the benefit
of all.
Any party in interest shall have the right to intervene to
protect his individual interest. [Rule 3, Sec. 12]
If a class suit is improperly brought, the action is subject
to dismissal regardless of the cause of action [Rule 16, Sec
1 (d)].
A taxpayer's suit or a stockholder's derivative suit is in
the nature of a class suit, although subject to the other
requisites of the corresponding governing law especially
on the issue of locus standi. [Regalado]
There is no class suit in an action filed by associations of
sugar planters to recover damages in behalf of individual
sugar planters for an allegedly libelous article in an
international magazine. There is no common or general
interest in reputation of a specific individual. Each of the
sugar planters has a separate and distinct reputation in
the community not shared by the others. [Riano citing
Newsweek, Inc. v. Intermediate Appellate court (1986)]
A class suit does not require a commonality of interest in
the questions involved in the suit. What is required by the
Rules is a common or general interest in the subject
matter of the litigation. [Riano citing Mathay v.
Consolidated Bank &Trust Company (1974)]
Class Suit Permissive Joinder of Parties
There is a single cause of There are multiple causes
action pertaining to of action separately
numerous persons. belonging to several
persons.

Class Suit
When the subject matter of
the controversy is one of
common or general
interest to many persons,
and the parties are so
numerous that it is
impracticable to bring
them all before the court,
one or more may sue or
defend for the benefit of all.
[Rule 3, Sec. 12]
Derivative Suit
An action brought by
minority shareholders in
the name of the
corporation to redress
wrongs committed against
it, for which the directors
refuse to sue.
It is a remedy designed by
equity and has been the
principal defense of the
minority shareholders
against abuses by the
majority.
In a derivative action, the
real party in interest is the
corporation itself, not the
shareholders who actually
instituted it [Lim v. Lim Yu
(2001))
c. E.g. actions to recover real and personal
property or to enforce liens thereon
Substitution of Parties: For causes of action that survive
the death of the party, there is substitution of parties
Counsel’s duty:
1. Inform court within 30 days after such death of
the fact thereof;
2. Give the name and address of the legal
representatives.
NOTE: Failure to comply with this duty is a
ground for disciplinary action.
Court’s duty: in case of death, the court if the action
survives, shall order, upon proper notice, the legal
representative of the deceased to appear and to be
substituted for the deceased within a period of 30 days or
within such time as may be granted.
- If there is notice of death, court should await
appointment of legal representative; otherwise,
subsequent proceedings are void. Period of filing
of brief is suspended.

If no legal representative is named or if the one so name

SUITS AGAINST ENTITES WITHOUT JURIDICAL shall fail to appear within the specified period, the court
PERSONALITY may order the opposing party to procure the appointment
of an executor or administrator for the estate.
Requisites: (Rule 3, Sec. 15)
1. There are 2 or more persons not organized as a The substitute defendant need not be summoned. The
juridical entity; order of substitution shall be served upon the parties
2. They enter into a transaction; substituted for the court to acquire jurisdiction over the
3. A wrong is committed against a 3rd person in the substitute party [Ferreria v Vda de Gonzales (1986)].
course of such transaction.

Effect: Persons associated in an entity without juridical
personality may be sued under the name by which they
are generally/commonly known, but they cannot sue
under such name. [Rule 3, Sec. 15]
The service of summons may be effected upon all the
defendants by serving upon any of them, or upon the
person in charge of the office or place of business
maintained under such name. [Rule 14, Sec. 8]
EFFECT OF DEATH OF PARTY LITIGANT
Survival or Death of Action
The question as to whether an action survives or not
depends on the nature of the action and the damage sued
for
1. Causes of Action that SURVIVE the decedent
a. The wrong complained of affects primarily
and principally property and property rights
b. Injuries to the person are merely incidental
c. E.g. Purely personal actions like support
3. Causes of Action which DO NOT SURVIVE
a. The injury complained of is to the person
b. Property and property rights affected are
incidental
21
Death or separation of a party who is a public officer
[Rule 3, Sec. 17]
Requisites:
1. Public officer is a party to an action in his official
capacity;
2. During the pendency of the action, he either
dies/resigns or otherwise ceases to hold office;
3. It is satisfactorily shown to the court by any
party, within 30 days after the successor takes
office, that there is a substantial need to
continue/maintain the action and
4. The successor adopts/continues (or threatens to
do so) his predecessor’s action
5. The party or officer affected was given
reasonable notice of the application therefore
and accorded an opportunity to be heard.
Action on Contractual Money Claims [Rule 3, Sec. 20]
Requisites:
1. The action must primarily be for recovery of
money/debt or interest thereon;
2. The claim arose from express/implied contract;
3. Defendant dies before the entry of final judgment
in the court in which the action was pending.
 4. The defendant’s death will not result in the
dismissal of the action.

The deceased shall be substituted by his legal

representatives in the manner provided for in Rule 3, Sec.
16, and the action will continue until the entry of final
judgment.

However, execution shall not issue in favor of the winning

plaintiff. It should be filed as a claim against the
decedent’s estate without need of proving the claim.

Transfer of Interest During Pendency of Action [Rule 3,

Sec. 19]

General rule: The rule does not consider the transferee an

indispensable party. Hence, the action may proceed
without the need to implead him.

Exception: When the substitution by or joinder of the

transferee is ordered by court.

The case will be dismissed if the plaintiff’s interest is

transferred to defendant unless there are several
plaintiffs, in which case the remaining plaintiffs can
proceed with their own cause of action.

22
 VENUE
Venue is the place, or the geographical area where an
action is to be filed and tried. In civil cases, it relates only
to the place of the suit and not to the jurisdiction of the
court. [Riano citing Manila Railroad Company v. Attorney
General (1911)]
Choosing the venue of an action is not left to a plaintiff’s
caprice; the matter is regulated by the Rules of Court.
[Ang v. Sps. Ang (2012)]
VENUE VERSUS JURISDICTION
Venue Jurisdiction
b. If they are the objects of 2 distinct
transactions, separate actions should be filed
in each place unless properly joined.
VENUE OF PERSONAL ACTIONS
At the plaintiff’s election: [Rule 4, Sec. 2]
1. Where the plaintiff or any of the principal
plaintiffs resides;
2. Where the defendant or any of the principal
defendants resides;
3. In case of a non-resident-defendant, where he
may be found.
NOTE: The plaintiff or the defendant must be residents of
the place where the action has been instituted at the time
the action is commenced. [Ang v. Sps. Ang (2012)]

Place where the action is Power of the court to hear The residence of a person is his personal, actual or
instituted and decide a case physical habitation or his actual residence or place of
Jurisdiction over the abode, which may not necessarily be his legal residence
subject matter and over or domicile provided he resides therein with continuity
May be waived the nature of the action is and consistency. [Boleyley v. Villanueva]
conferred by law and
cannot-be waived A corporation cannot be allowed to file personal actions
Procedural Substantive in a place other than its principal place of business unless
May be changed by the Is fixed by law and cannot such place is aso the residence of a co-plaintiff or
written agreement of the be the subject of the defendant. [Clavecilla Radio v. Antillon]
parties agreement of the parties
Establishes a relation
Establishes a relation VENUE OF ACTIONS AGAINST NON-RESIDENTS (Rule 5,
between plaintiff and
between the court and the Sec. 3)
defendant, or petitioner and
subject matter
respondent
Non-resident FOUND in the Philippines:
Not a ground for a motu
Lack of jurisdiction over 1. For personal actions – Where the plaintiff resides
propio dismissal (except in
the subject matter is a 2. For real actions – Where the property is located
cases of summary
ground for a motu proprio
procedure; Rule 4, Rule on
dismissal. NOTE: The alternative venues granted to
Summary Procedure)
plaintiffs in Sec. 2, Rule 4 is not available to a
non-resident
VENUE OF REAL ACTIONS
Non-resident NOT FOUND in the Philippines: An action
may be filed ONLY when the case involves:
1. Shall be commenced and tried in the proper court
1. Personal status of plaintiff – File at the place
which has jurisdiction over the area wherein the
where plaintiff resides
real property involved, or a portion thereof is
2. Any property of said defendant located in the
situated. [Rule 4, Sec. 1(1)]
Philippines – File at the place where the property
(or any portion thereof) is situated/found
2. Forcible entry and detainer actions shall be
commenced and tried in the municipal court of
NOTE: When there is more than one defendant or
the municipality or city wherein the real property
plaintiff, the residences of the PRINCIPAL parties should
involved, or a portion thereof, is situated. [Rule 4,
be the basis for determining proper venue (Herrera)
Sec. 1(2)]

3. If the property is located at the boundaries of 2

WHEN THE RULES ON VENUE DO NOT APPLY (Rule 4,
places, file the case in either place (at the
Sec. 4)
plaintiff’s option).
Rules on Venue DO NOT apply:
4. If the case involves 2 properties located in 2
1. If a specific rule/law provides otherwise (e.g.
different places:
action for damages arising from libel);
a. If the properties are the object of the same
2. If there is a stipulation as to venue which is
transaction, file it in any of the 2 places;
permitted if the parties have validly agreed
(1) in writing
(2) before the filing of the action
23
 (3) on the exclusive venue

EFFECTS OF STIPULATIONS ON VENUE

To be binding, the parties must have agreed on the

exclusive nature of the venue of any prospective action
between them. The agreement of parties must be
restrictive and not permissive. [Regalado]

In the absence of qualifying restrictive words (e.g.

“only/solely/exclusively in such court”), venue stipulation
is merely permissive; that is, the stipulated venue is in
addition to the venue provided for in the rules. [Polytrade
Corp. v. Blanco (1969)]

The mere stipulation on the venue of an action, however,

is not enough to preclude parties from bringing a case in
other venues. The parties must be able to show that such
stipulation is EXCLUSIVE. In the absence of qualifying or
restrictive words, the stipulation should be deemed as
merely an agreement on an additional forum, not as
limiting venue to the specified place. [Riano citing Spouse
Lantin v. Lantion, (2006)]

The court may declare agreements on venue as contrary

to public policy if such stipulation unjustly denies a party
a fair opportunity to file suit in the place designated by
the Rules [Regalado, citing Hoechst Philippines v Torres
(1978)].

OTHER RULES ON VENUE

Improper Venue - The Court may not motu propio dismiss

an action on the ground of improper venue. [Dacoycoy v.
IAC (1991)]

EXCEPTION: In summary procedures

Change of Venue - The SC has the power to change the

venue to prevent a miscarriage of justice. [Art. 8, Sec. 5,
1987 Constitution]

Waiver of Venue - Until and unless the defendant objects

to the venue in a motion to dismiss prior to a responsive
pleading, the venue cannot truly be said to have been
improperly laid since for all intents and purposes, the
venue though technically wrong may yet be considered
acceptable to the parties for whose convenience the rules
on venue had been devised. Although venue is mandatory,
it is waivable. [Diaz v. Adiong (1993)]

Means of waiving venue:

1. Where parties validly agreed in writing before
the filing of the action on the exclusive venue
thereof [Rule 4, Sec 4 (b)]; and
2. Failure to raise improper venue as affirmative
defense or in motion to dismiss

24
 PLEADINGS
DEFINITION Ultimate Facts - Essential facts constituting the plaintiff’s
cause of action. A fact is essential if it cannot be stricken
Pleadings are the written statements of the respective out without leaving the statement of the cause of action
claims and defenses of the parties, submitted to the court insufficient. [Remitere v. Montinola (1966)]
for appropriate judgment [Rule 6, Sec. 1]
Non-Ultimate Facts:
Pleading v. Motion 1. Evidentiary or immaterial facts;
2. Legal conclusions, conclusions or inferences of
PLEADING MOTION facts from facts not stated, or incorrect inferences
Purpose: to submit a claim Purpose: to apply for an or conclusions from facts stated;
or defense for appropriate order not included in the 3. Conclusions of law alleged in the complaint are
judgment judgment not binding on the court.
Cannot be initiatory as 4. The details of probative matter or particulars of
May be initiatory they are always made in a evidence, statements of law, inferences and
case already filed in court arguments.
Always filed before May be filed even after
judgment judgment Test of Sufficiency of the Facts alleged in the Complaint:
Any application for relief WON upon the averment of facts, a valid judgment may be
Only 9 kinds of pleading properly rendered [Pamintan v. Costales (1914)].
not by a pleading is a
are allowed by the rules
motion
May be oral when made in
ANSWER (Rule 6, Sec. 4)
Must be written open court or in the course
of a hearing or trial
Definition - The pleading where the defendant sets forth
his affirmative/negative defenses. It may also be the
response to a counterclaim or a cross-claim.
KINDS OF PLEADINGS
Two kinds of Defenses that may be set forth in the Answer
Kinds of Pleadings Allowed (Rule 6, Sec. 2)
(Rule 6, Sec. 5) –
1. Complaint
2. Answer
1. Negative Defenses - Specific denials of the
3. Counterclaim
material facts alleged in the pleading of the
4. Cross-claim
claimant essential to his cause of action.
5. 3rd-party Complaint
 A denial is not specific just because it is so
6. Complaint-in-intervention
qualified (Agton v. CA)
7. Reply
 A general denial will be deemed an
admission of the averments in the complaint;
COMPLAINT(Rule 6, Sec. 3) it has to be specific
 Modes of Denial (Sec. 10, Rule 8)
Definition - The pleading alleging the plaintiff’s cause/s of a. Defendant must specify each material
action. It should contain a concise statement of the allegation of fact the truth of which he
ultimate facts constituting the plaintiff’s cause/s of action, does not admit
not evidentiary facts or legal conclusions. b. If pleader decides to deny only a part or
a qualification of an averment, he shall
Contents – Statement of ultimate facts on which the specify so much of it as true and deny the
plaintiff relies for his claim: remainder
1. It must be in a methodical and logical form c. If pleader is without knowledge or
2. Plain, concise, and direct information sufficient to form a belief as
3. Statement of mere evidentiary facts are omitted to the truth of a material averment, he
(Rule 8, Sec. 1) shall so state

Function 2. Affirmative Defenses - Allegations of new matters

1. Its function is to inform the defendant clearly and
definitely of claims made against him so that he
may be prepared to meet the issues at trial.
2. It should inform the defendant of all material
facts on which the plaintiff relies to support his
demand.
3. It should state the theory of a cause of action
which forms the bases of plaintiff’s claim of
liability. [Tantuico v. Republic (1991)]
25
which, while hypothetically admitting the
material allegations in the claimant’s pleading,
would nevertheless prevent/bar recovery by
him. It includes fraud, prescription, release,
payment and any other matter by way of
confession and avoidance.
Negative Pregnant - Denial pregnant with an admission. It
is a denial pregnant with the admission of the substantial
facts in the pleading responded to which are not squarely
denied. It is in effect an admission of the averment it is
directed to. [Philamgen v. Sweet Lines (1993)]
Compulsory counterclaim
Permissive counterclaim
While it is a denial in the form its substance actually has
the effect of an admission because of a too literal denial of One which arises out of or
the allegation sough to be denied. This arises when the is necessarily connected It does not arise out of nor
pleader merely repeats the allegations in a negative form. with the transaction or is it necessarily connected
occurrence -that is the with the subject matter of
Insufficient denial or denial amounting to admissions: subject matter of the the opposing party's claim.
1. General denial; and opposing party's claim.
2. Denial in the form of a negative pregnant Does not require for its May require for its
adjudication the presence adjudication the presence
of third parties of whom of third parties over whom
COUNTERCLAIM the court cannot acquire the court cannot acquire
jurisdiction. jurisdiction.
Definition - Any claim which a defending party may have Barred if not set up in the Not barred even if not set
against an opposing party. action. up in the action.
1. A counterclaim is in the nature of a cross- Must be answered,
complaint. Although it may be alleged in the Need not be answered; no
otherwise, the defendant
answer, it is not part of the answer. default.
can be declared in default.
2. Upon its filing, the same proceedings are had as Since permissive, it
in the original complaint. No need for separate requires the payment of
3. For this reason, it must be answered 10 days docket fees docket fees (Sun Insurance
from service [Rule 11, Sec 4] v. Asuncion, 1989)

How to Raise Counterclaims Compulsory Counterclaim

1. By including it in the Answer 1. Requisites:
a. A compulsory counterclaim or a cross-claim a. It must arise out of, or be necessarily
that a defending party has AT THE TIME he connected with, the transaction/occurrence
files his answer shall be contained therein. that is the subject matter of the opposing
[Rule 11, Sec. 8] party's claim;
b. Exception: Pleadings may be amended under b. It does not require for its adjudication the
Rule 11, Sec. 10: presence of 3rd parties of whom the court
(1) By leave of court; cannot acquire jurisdiction;
(2) Before judgment; c. It must be within the court’s jurisdiction both
(3) On the grounds of: as to the amount and the nature. [Regalado,
(4) Oversight; citing Quintanilla v CA (1997)]
(5) Inadvertence;
(6) Excusable neglect; 2. General Rule: A compulsory counterclaim not set
(7) When justice requires. up in the answer is deemed barred.
a. Exceptions:
2. By filing after the Answer (Rule 11, Sec. 9) (1) If it is a counterclaim which either
a. Counterclaims/cross-claims arising AFTER matured or was acquired by a party after
the answer, serving his answer. In this case, it may be
b. How done: pleaded by filing a supplemental answer
(1) By filing a supplemental pleading before or pleading before judgment. [Rule 11,
judgment Sec. 9]
(2) WITH court’s permission (2) When a pleader fails to set up a
counterclaim through oversight,
Rules on Counterclaims inadvertence, excusable negligence, or
1. In an original action before the RTC, the when justice so requires. He may, by
counterclaim may be considered compulsory leave of court, set-up the counterclaim
regardless of the amount. [Rule 6, Sec. 7] by amendment of the pleading (Rule 11,
2. In the case of Agustin v. Bacalan (1985), if a Sec. 10)
counterclaim is filed in the MTC in excess of its
jurisdictional amount, the excess is considered 3. A plaintiff who fails or chooses not to answer a
waived. compulsory counterclaim may not be declared in
3. But in Calo v. Ajax (1968), the remedy where a default, principally because the issues raised in
counterclaim is beyond the jurisdiction of the the counterclaim are deemed automatically
MTC is to set off the claims and file a separate joined by the allegations in the complaint. [Gojo
action to collect the balance. v. Goyala (1970)]
Kinds of Counterclaims
26
 4. The filing of a MTD and the setting up of a
compulsory counterclaim are incompatible
remedies.
a. In the event that a defending party has a
ground for dismissal and a compulsory
counterclaim at the same time, he must
choose only one remedy.
b. If he decides to file a MTD, he will lose his
counterclaim. But if he opts to set up his
counterclaim, he may still plead his ground
for dismissal as an affirmative defense in his
answer.
c. If any of the grounds to dismiss under Rule
17, Sec. 3 arise, the proper recourse for a
defendant who desires to pursue his
compulsory counterclaim in the same
proceeding is not a MTD.
d. Instead, he should only move to have the
plaintiff declared non-suited on the
complaint so that the latter can no longer
present his evidence thereon, and
simultaneously move that he be declared as
in default on the compulsory counterclaim,
and reserve the right to present evidence ex
parte on his compulsory counterclaim. [BA
Finance v. Co (1993)]
Permissive Counterclaim
1. Counterclaim is permissive if it does not arise out
of, nor is necessarily connected with, the subject
matter of the opposing party’s claim
a. This is not barred even if not set up in the
action
b. Must have independent jurisdictional ground
(Herrera). Hence, the filing of a separate
docket fee.
2. Test to determine whether a counterclaim is
compulsory or permissive: LOGICAL
RELATIONSHIP TEST
a. Where conducting separate trials of the
respective claims would entail substantial
duplication of effort and time and involves
many of the same factual and legal issues.
[Meliton v. CA (1992)]
3. NOTE: If the counterclaim matures AFTER the
Answer, it is merely PERMISSIVE
3. The cross-claimant is prejudiced by the claim
against him by the opposing party.
General Rule: A cross-claim is always compulsory. A cross-
claim not set up shall be barred. [Rule 9, Sec. 2]
Exceptions: Permissive Cross-Claims
1. When it is outside the court’s jurisdiction;
2. If the court cannot acquire jurisdiction over 3rd
parties whose presence is necessary for the
adjudication of said cross-claim. In this case, the
cross-claim is considered permissive.
3. Cross claim that may mature or may be acquired
AFTER service of Answer
Effect on Cross-Claim when Complaint is Dismissed - The
dismissal of the complaint carries with it the dismissal of
a cross-claim which is purely defensive, but not a cross-
claim seeking an affirmative relief. [Torres v. CA (1973)]
Improper Cross-Claims
1. Where the cross-claim is improper, the remedy is
certiorari (Malinao v. Luzon Surety, 1964)
2. The dismissal of a cross-claim is unappealable
when the order dismissing the complaint
becomes final and executory (Ruiz, Jr. v. CA, 1993)
3. A cross-claim is not allowed after declaration of
default of cross-claimant (Tan v. Dimayuga, 1962)
It would be tantamount to setting aside the order
of default because then the cross-claimant would
re-obtain a standing in court as party litigant
Counter-Counterclaims and Counter-Cross-Claims (Rule 6,
Sec. 9)
1. Counter-Counterclaim - A claim asserted against
an original counter-claimant.
2. Counter-Cross-claim - A claim filed against an
original cross-claimant.
THIRD (FOURTH, ETC.) PARTY COMPLAINTS (Rule 6, Sec.
11)
Definition - It is a claim that a defending party may, with
leave of court, file against a person not a party to the
action for contribution, indemnity, subrogation or any
other relief, in respect of his opponent's claim.
There could also be a 4th/etc.-party complaint with the
same purpose and function.

Effect on Counterclaim when Complaint is Dismissed - 3rd Party

Cross-claim Counterclaim
Under Section 3, Rule 17, dismissal of action due to complaint
plaintiff’s fault shall be without prejudice to the Against a person
defendant’s right to prosecute his counterclaim in the Against a co- Against an opposing
not a party to
same/separate action. party party
the action
Must arise out May arise out of or
of the be necessarily Must be in
CROSS-CLAIM transaction connected with the respect of the
that is the transaction or the opponent’s
Requisites: subject matter subject matter of the (plaintiff’s)
1. A claim by one party against a co-party; of the original opposing party’s claim
2. It must arise out of the subject matter of the action or of a claim (compulsory
complaint or of the counterclaim;
27
counterclaim counterclaim), or it 3. Where the trial court has jurisdiction over the
therein may not (permissive main case, it also has jurisdiction over the 3rd-
counterclaim) party complaint, regardless of the amount
No need for a No need for leave of Leave of court is involved as a 3rd-party complaint is merely
leave of court court needed auxiliary to and is a continuation of the main
action. [Republic v. Central Surety (1968)]
4. A 3rd-party complaint is not proper in an action
3rd-party complaint for declaratory relief.
Complaint in intervention
Brings into the action a 3rd
person who was not Same COMPLAINT-IN-INTERVENTION
originally a party
Initiative is with a non- Pleadings-in-Intervention (Rule 19, Sec. 3)
Initiative is with the person 1. Complaint-in-intervention – If intervenor asserts
party who seeks to join the
already a party to the action a claim against either or all of the original parties.
action
2. Answer-in-intervention – If intervenor unites
with the defending party in resisting a claim
3rd-party complaint Counterclaim against the latter.

Need not be within the Must be within the Definition - INTERVENTION is a remedy by which a third
jurisdiction of the court jurisdiction of the court party, not originally impleaded in a proceeding, becomes
trying the main case trying the main case a litigant therein to enable him to protect or preserve a
right or interest which may be affected by such
Diminishes/defeats the Need not diminish/defeat
recovery sought by the the recovery sought by the proceeding.
opposing party opposing party
Its purpose is "to settle in one action and by a single
Cannot exceed the amount May exceed in amount or
judgment the whole controversy (among) the persons
stated in the original be different in kind from
involved." [First Philippine Holdings v. Sandiganbayan
complaint that sought in the original
(1996); Rule 19]
complaint
When Allowed - Intervention shall be allowed when a
Basis of Third-Party Complaint - Under this Rule, a person
person has:
not party to an action may be impleaded by the defendant
1. A legal interest in the matter in litigation;
either:
2. Or in the success of any of the parties;
1. On allegation of liability to the latter
3. Or an interest against the parties; and
2. On the ground of direct liability to the plaintiff; or
4. When he is so situated as to be adversely affected
3. Both (1) and (2)
by a distribution or disposition of property in the
custody of the court or of an officer thereof. [First
Situation in (1) is covered by the phrase
Philippine Holdings v. Sandiganbayan (1996)]
“contribution, indemnity or subrogation”, while
(2) and (3) are subsumed under the catch-all
Not an Independent Action - Intervention is not an
phrase (Samala v. Victor, 1989)
independent action, but is ancillary and supplemental to
an existing litigation. [First Philippine Holdings v.
Sandiganbayan (1996)]
Tests to Determine Whether the 3rd-Party Complaint is in
1. It is neither compulsory nor mandatory but only
Respect of Plaintiff’s Claim (Capayas v. CFI, 1946)
optional and permissive. [Mabayo v. CA (2002)]
1. WON it arises out of the same transaction on
2. The Court has full discretion in permitting or
which the plaintiff's claim is based, or although
disallowing intervention, which must be
arising out of another/different transaction, is
exercised judiciously and only after
connected with the plaintiff’s claim;
consideration of all the circumstances obtaining
2. WON the 3rd-party defendant would be liable to
in the case. [Mago v. CA (1999)]
the plaintiff or to the defendant for all/part of the
3. It is not an absolute right as it can be secured
plaintiff’s claim against the original defendant;
only in accordance with the terms of applicable
3. WON the 3rd-party defendant may assert any
statute or rule. [Office of Ombudsman v.
defenses which the 3rd-party plaintiff has or may
Samaniego (2010)]
have to the plaintiff’s claim.
Meaning of Legal Interest - Interest must be of a direct and
Additional Rules
immediate character so that the intervenor will either
1. Leave of court to file a 3rd-party complaint may
gain or lose by the direct legal operation of the judgment.
be obtained by motion under Rule 15.
The interest must be actual and material, a concern which
2. Summons on 3rd (4th/etc.) – party defendant
is more than mere curiosity, or academic or sentimental
must be served for the court to obtain
desire; it must not be indirect and contingent, indirect
jurisdiction over his person, since he is not an
and remote, conjectural, consequential or collateral.
original party.
[Virra Mall Tenants v. Virra Mall (2011)]
28

Requisites for Valid Intervention
1. There must be a motion for intervention filed
before rendition of judgment by the trial court.
2. Movant must show in his motion that he has a:
a. Legal interest in (1) the matter of litigation,
(2) the success of either of the parties in the
action or (3) against both parties.
b. That the movant is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the
court or an officer thereof
c. That the intervention must not unduly delay
or prejudice the adjudication of the rights of
the original parties and that the intervenor’s
rights may not be fully protected in a
separate proceeding.
How to Intervene
1. With leave of court, the court shall consider the 2
factors
2. Motion to intervene may be filed at any time
before rendition of judgment by trial court
3. Copy of the pleadings-in-intervention shall be
attached to the motion and served on the original
parties
Time to Intervene: (Rule 19, Sec. 2)
1. General Rule: The motion to intervene must be
filed at any time before the rendition of judgment
by the trial court
2. Exceptions:
a. With respect to indispensable parties,
intervention may be allowed even on appeal
(Falcasantos v. Falcasantos)
b. When the intervenor is the Republic (Lim v.
Pacquing)
c. Intervention may be allowed after judgment
where necessary to protect some interest
which cannot otherwise be protected, and for
the purpose of preserving the intervenor’s
right to appeal (Pinlac v. CA)
Remedy for Denial of Motion for Intervention
1. The movant may file a motion for reconsideration
since the denial of a motion for intervention is an
interlocutory order.
2. Alleging grave abuse of discretion, movant can
also file a certiorari case.
REPLY
Definition - The plaintiff’s response to the defendant's
answer. The function of which is to deny or allege facts in
denial or in avoidance of new matters alleged by way of
defense in the answer and thereby join or make issue as
to such new matters. (Rule 6, Sec. 10)
Effect of Failure to Reply
1. General Rule - Filing a reply is merely optional.
New facts that were alleged in the answer are
deemed controverted should a party fail to reply
thereto.
29
2. Exception – When a Reply is necessary
a. To set up affirmative defenses on the
counterclaim (Rosario v. Martinez)
b. Where the answer alleges the defense of
usury in which case a reply under oath
should be made; otherwise, the allegation of
usurious interest shall be deemed admitted
[Rule 8, Sec. 8; Sun Bros. v. Caluntad]
c. Where the defense in the answer is based on
an actionable document, a reply under oath
must be made; otherwise, the genuineness
and due execution of the document shall be
deemed admitted. [Rule 8, Sec. 11; Toribio v.
Bidin]
PLEADINGS ALLOWED IN SMALL CLAIM CASES AND
CASES COVERED BY THE RULES OF SUMMARY
PROCEDURE
Under the Revised Rules on Summary Procedure – The
only pleadings allowed to be filed are: (Sec. 3)
1. Complaints
2. Compulsory counterclaims and cross-claims
pleaded in the Answer; and
3. Answers thereto
Prohibited Pleadings, Motions, or Petitions (Sec. 19)
1. Motion to dismiss the complaint or to quash the
complaint or information except on the ground of
lack of jurisdiction over the subject matter, or
failure to comply with required barangay
conciliation proceedings;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for opening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
7. Motion to declare the defendant in default;
8. Dilatory motions for postponement;
9. Reply;
10. Third party complaints; and
11. Interventions.
Forms Used Under the Rule of Procedure under Small
Claims Cases
1. Instead of filing complaint, a Statement of Claim
using Form 1-SCC shall be filed [Sec. 5]
2. Answer shall be filed by way of a Response using
Form 3-SCC [Sec. 10]
3. Defendant may file counterclaim if he possesses a
claim against the plaintiff that
a. Is within the coverage of this Rule, exclusive
of interest and costs;
b. Arises out of the same transaction or event
that is the subject matter of the plaintiff’s
claim;
c. Does not require for its adjudication the
joinder of third parties; and
 d. Is not the subject of another pending action,
the claim shall be filed as a counterclaim in
the Response; otherwise, the defendant shall
be barred from suit on the counterclaim.
The defendant may also elect to file a counterclaim
against the plaintiff that does not arise out of the same
transaction or occurrence, provided that the amount and
nature thereof are within the coverage of this Rule and
the prescribed docket and other legal fees are paid.
NOTE: Courts decision shall be contained in Form 13-SCC
Prohibited Pleadings and Motions in Small Claims
1. Motion to dismiss the complaint except on the
ground of lack of jurisdiction;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits, or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions.
PARTS OF A PLEADING (Rule 7, Sec. 1 to 3)
CAPTION
Caption - Court’s name, action’s title (i.e. parties’ names)
and docket number.
Body - Pleading’s designation, allegations of party's
claims/defenses, relief prayed for and pleading’s date.
1. Paragraphs must be numbered, and each
paragraph number must contain a single set of
circumstances
2. Headings: if more than one cause of action, use
"1st cause of action," 2nd cause of action," etc.
3. Specify relief sought, but it may add a general
prayer for such further/other relief as may be
deemed just/equitable.
4. Every pleading shall be dated.
SIGNATURE AND ADDRESS
Every pleading must be signed by the party or counsel
representing him.
The address must be stated and such address must not be
a post office box
Effect of Signature of Counsel in a Pleading - Signature of
counsel constitutes a certificate by him that:
1. He has read the pleading
30
2. That to the best of his knowledge, information,
and belief there is good ground to support it; and
3. That it is not interposed for delay
Unsigned Pleadings
1. No legal effect
2. Court may, in its discretion, allow such remedy to
be remedied if it appears that:
a. It was due to mere inadvertence; and
b. It was not intended for delay
VERIFICATION AND CERTIFICATION AGAINST FORUM
SHOPPING (Rule 7, Sec. 4)
Verification - Pleadings need not be verified, unless
otherwise provided by the law/rules
Verification is Required in the following:
1. Pleadings filed in the inferior courts in cases
covered by the Rules on Summary Procedure are
all required to be verified
2. Petition for relief from judgment or order (Sec. 3,
Rule 38)
3. Petition for review from RTC to the CA (Sec. 1,
Rule 42)
4. Petition for review from quasi-judicial agencies
to the CA (Sec. 5, Rule 43)
5. Appeal by certiorari from the CTA to the SC (Sec.
12, RA 9282 amending Sec. 19, RA 1125)
6. Appeal by certiorari from CA to the SC (Sec. 1,
Rule 45)
7. Petition for annulment of judgments or final
orders and resolutions (Sec. 1, Rule 47)
8. Complaint for injunction (Sec. 4, Rule 58)
9. Application for appointment of receiver (Sec. 1,
Rule 59)
10. Application for support pendente lite (Sec. 1, Rule
69)
11. Petition for certiorari against judgments, final
orders, or resolutions of constitutional
commissions (Sec. 2, Rule 64)
12. Petition for certiorari (Sec. 1, Rule 65)
13. Petition for prohibition (Sec. 2, Rule 65)
14. Petition for mandamus (Sec. 3, Rule 65)
15. Petition for quo warranto (Sec. 1, Rule 66)
16. Complaint for expropriation (Sec. 1, Rule 67)
17. Complaint for forcible entry or unlawful detainer
(Sec. 4, Rule 70)
18. Petition for indirect contempt (Sec. 4, Rule 71)
19. Petition for appointment of a general guardian
(Sec. 2, Rule 93)
20. Petition for leave to sell or encumber property of
the ward by a guardian (Sec. 1, Rule 95)
21. Petition for declaration of competency of a ward
(Sec. 1, Rule 97)
22. Petition for habeas corpus (Sec. 3, Rule 102)
23. Petition for change of name (Sec. 2, Rule 103)
24. Petition for voluntary judicial dissolution of a
corporation (Sec. 1, Rule 104)
25. Petition for cancellation or correction of entries
in the civil registry (Sec. 1, Rule 108)
How a pleading is verified: By an affidavit
 1. That the affiant read the pleading;
2. That the allegations therein are true and correct
of his personal knowledge or based on authentic
documents.
Forum Shopping - The filing of multiple suits in different
courts, simultaneously or successively, involving the same
parties, to ask the courts to rule on the same/related
causes and/or to grant the same or substantially the same
relief. [T'Boli Agro-Industrial Development, Inc. (TADI) v.
Solidapsi (2002)] (Asked in the 2006 Bar Exam)
Test to Determine WON there is forum shopping: WON in
the 2 or more cases pending, there is identity of:
1. Parties
2. Rights or causes of action
3. Relief sought
Certificate of Non-Forum Shopping (CNFS) (Rule 7, Sec. 5)
1. The CNFS is to be executed by the petitioner, not
by the counsel.
2. CNFS is required only for complaints or initiatory
pleadings (e.g. permissive counterclaim, cross-
claim etc.).
3. CNFS is not required in a compulsory
counterclaim. A counterclaim is not an initiatory
pleading. [UST Hospital v. Surla (1998)]
a. However, a certification is needed in
permissive counterclaims (Korea Exchange
Bank v. Gonzales)
4. The lack of certification against forum shopping
is not curable by mere amendment of a
complaint, but shall be a cause for the dismissal
of the case without prejudice. The general rule is
that subsequent compliance with the
requirements will not excuse a party's failure to
comply in the first instance. [Ramirez v. Mar
Fishing (2012)]
Who Executes the Certification - Certification against
forum shopping ordained by the Rules is to be executed
by the petitioner, not his counsel. The petitioner is in the
best position to know whether he filed or caused the filing
of a petition in the case.
Certification by counsel is defective certification. In Santos
v. CA, the Court held that a special power of attorney was
insufficient.
Effect of Submission of False CNFS or Non-Submission:
1. Indirect contempt
2. Administrative and criminal actions
Effect of Willful and Deliberate Forum Shopping
1. Ground for summary dismissal of the case with
prejudice;
2. Direct contempt and administrative sanctions.
NOTE: the CNFS is mandatory but NOT
jurisdictional.
Requirement of a Corporation executing the verification/
CNFS - Only individuals vested with authority by a valid
board resolution may sign the certificate of non-forum
31
shopping in behalf of a corporation. In addition, the Court
has required that proof of said authority must be attached.
Failure to provide a certificate of non-forum shopping is
sufficient ground to dismiss the petition. Likewise, the
petition is subject to dismissal if a certification was
submitted unaccompanied by proof of the signatory’s
authority. [PAL v. FASAP (2006)]
ALLEGATIONS IN A PLEADING (Rule 8)
MANNER OF MAKING ALLEGATIONS
In General – (Rule 8, Sec. 1)
1. Every pleading shall contain a statement of the
ultimate facts on which the party pleading relies
for his claim or defense
a. In a methodical and logical form
b. A plain, concise and direct statement
c. Statement of mere evidentiary facts omitted
2. If a defense relief is based on law, state in a clear
and concise manner:
a. Pertinent provisions of the law
b. Applicability of the law to him
Facts that must be averred PARTICULARLY -
Circumstances showing fraud/mistake in all averments of
fraud/mistake [Rule 8, Sec. 5]
Facts that may be averred GENERALLY:
1. Conditions precedent; but there must still be an
allegation that the specific condition precedent
has been complied with, otherwise it will be
dismissed for lack of cause of action; [Rule 8, Sec.
3]
2. Capacity to sue or be sued;
3. Capacity to sue or be sued in a representative
capacity; [Rule 8, Sec. 4]
4. Legal existence of an organization; A party
desiring to raise an issue as to the legal existence
or capacity of any party to sue or be sued in a
representative capacity shall do so by specific
denial which shall include supporting particulars
within the pleader's knowledge. [Rule 8, Sec 4]
5. Malice/intent/knowledge or other condition of
the mind; [Rule 8, Sec. 5]
6. Judgments of domestic/foreign courts, tribunals,
boards or officers (without need to show
jurisdiction); [Rule 8, Sec. 6]
7. Official documents/acts. [Rule 8, Sec. 9]
Condition Precedent – If the cause of action depends upon
a condition precedent, its fulfillment or legal excuse for
non-fulfillment must be averred.
A general averment of the performance or occurrence of
all conditions precedent shall be sufficient [Rule 8, Sec. 3]
All valid conditions precedent to the institution of a
particular action, whether prescribed by statute, fixed by
agreement of the parties, or implied by law must be
performed or complied with before commencing the
action. Such fact must be pleaded.
Failure to comply with a condition precedent is a ground
for a motion to dismiss (Rule 16, Sec. 1(j))
Examples of Conditions Precedent:
1. Exhaustion of administrative remedies
2. Investigation by a fiscal is a prerequisite to
annulment of marriage when defendant defaults
(Tolentino v. Villanueva)
3. No suit shall be filed or maintained between
members of the same family unless it should
appear that earnest efforts at compromise have
been made but that the same have failed. (Art.
222; Versoza v. Versoza)
4. Arbitration; Barangay Conciliation
Capacity – What must be averred:
1. Facts showing the capacity of a party to sue or be
sued; or
2. The authority to sue or be sued in a
representative capacity;
3. Or the legal existence of an organized association
of persons that is made a party (Rule 8, Sec. 4)
Fraud, Mistake, Malice, Intent, Knowledge and Other
Condition of the Mind, Judgments, official documents, or
acts - Circumstances constituting fraud or mistake must
be stated with particularity while malice, intent,
knowledge or other condition of the mind of a person may
be averred generally [Rule 8, Sec. 5]
Judgment - In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-judicial
tribunal, or of a board or officer, it is sufficient to aver the
judgment or decision without setting forth matter
showing jurisdiction to render it. (Rule 8, Sec. 6)
PLEADING AN ACTIONABLE DOCUMENT (Rule 8, Sec. 7)
Actionable Document - The written instrument upon
which the action or defense is based. Where a pleader
relies upon a document, its substance must be set out in
the pleading either by its terms or by its legal effects
Pleading the actionable document:
1. The substance of such instrument or document
shall be set forth in the pleading; and
2. The original or copy thereof shall be attached to
the pleading as an exhibit, which shall be deemed
to be part of the pleading; or
3. Said copy may with like effect be set forth in the
pleading
A variance in the substance of the document set forth in
the pleading and the document annexed thereto does not
warrant dismissal of the action (Convets Inc. v. National
Dev. Co.)
How to Contest an Actionable Document (Rule 8, Sec. 8)
1. By specific denial under oath; and
2. By setting forth what is claimed to be the facts
32
NOTE: The genuineness and due execution of the
document must be denied SPECIFICALLY
- Due Execution - That the party whose signature it
bears admits that he voluntarily signed it; or that
it was signed by another for him with his
authority
- Genuineness - That the party whose signature it
bears admits that at the time it was signed it was
in words and figures exactly as set out; and that
the formalities, such as swearing and
acknowledgement, or revenue stamps which are
required by law are waived by him
Failure to Deny Under Oath the Actionable Document:
1. The genuineness and due execution is deemed
admitted
2. The document need not be formally offered in
evidence
SPECIFIC DENIALS (Rule 8, Sec. 10)
The purpose of requiring the defendant to make a specific
denial is to make him disclose the matters alleged in the
complaint which he sincerely intends to disprove at the
trial, together with matters which he relies upon to
support the denial (Herrera).
Modes of Denial:
1. Specific Absolute Denial - Defendant must specify
each material allegation of fact the truth of which
he does not admit
a. Whenever applicable, he shall set forth the
substance of the matters which he will rely
upon to support the denial
2. Partial Specific Denial - If pleader decides to deny
only a part or a qualification of an averment:
a. He shall specify so much of it as is true and
material
b. He shall deny the remainder
3. Disavowal of Knowledge - If defendant is without
knowledge or information sufficient to form a
belief as to the truth of a material averment made
in the complaint:
a. He shall so state
b. This shall have the effect of a denial
Effect of Failure to make Specific Denials:
1. General Rule: Allegations not specifically denied
are deemed admitted (Rule 8, Sec. 11)
2. Exceptions: Averments not deemed admitted
even if not specifically denied
a. Allegations as to the amount of unliquidated
damages;
b. Allegations immaterial to the cause of action
c. Allegations of merely evidentiary or
immaterial facts may be expunged from the
pleading or may be stricken out on motion.
[Rule 8, Sec. 12]
 d. Conclusion of law.
When a specific denial requires an OATH – When the
genuineness and due execution of an actionable
document is contested or denied, the specific denial must
be under oath. (Rule 8, Sec. 8)
EFFECT OF FAILURE TO PLEAD (Rule 9)
FAILURE TO PLEAS DEFENSES AND OBJECTIONS
General Rule: Defenses and objections not pleaded in
answer or motion to dismiss are deemed waived.
(Omnibus Motion Rule)
Exceptions:
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia between same parties for the
same cause
3. Res judicata
4. Action barred by statute of limitations.
FAILURE TO PLEAD COMPULSORY COUNTERCLAIM AND
CROSS-CLAIM
General Rule: A compulsory counterclaim not set up is
considered barred. [Rule 9, Sec. 2]
Exception: If due to oversight, inadvertence, excusable
neglect, etc. the compulsory counterclaim, with leave of
court, may be set up by amendment before judgment.
[Rule 11, Sec. 10]
For Cross-Claims: A cross-claim is always compulsory. A
cross-claim not set up shall be barred. [Rule 9, Sec. 2]
DEFAULT (Rule 9, Sec. 3)
Definition: Failure of the defendant to answer within the
proper period. It is not his failure to appear nor his failure
to present evidence
Dual stages of default:
1. Declaration of Order of Default – when defendant
fails to answer within the time specified in the
rules, the court shall, upon motion of the plaintiff
and proof of such failure, declare defendant in
default
2. Rendition of Judgment by Default – thereafter, on
the basis of the allegation of the complaint or
after receiving plaintiff’s evidence, the court shall
render judgment granting him such relief as the
complaint and the facts proven may warrant
Judgment by default
Order of default
33
Issued by the court on
Rendered by the court
plaintiff’s motion, for
following a default order or
failure of the defendant to
after it received ex parte
file his responsive pleading
plaintiff’s evidence
seasonably
Interlocutory -Not
Final – Appealable
appealable
When a Declaration of Default is Proper:
There is only one instance when a party defendant can
properly be declared in default and that is when he fails to
file his answer within the reglementary period, or within
such extended time as he is allowed by the court, under
Sec. 1, Rule 18
Elements of a Valid Order of Default
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
4. There must be notice to the defendant by serving
upon him a copy of such motion
5. There must be proof of such failure to answer
6. There must be a hearing to declare defendant in
default
Effect of Order of Default:
1. The court shall proceed to render judgment
granting the claimant such relief as his pleading
may warrant; or in its discretion
2. Shall require the claimant to submit evidence;
3. Loss of standing in court of the defaulting party –
meaning he cannot appear therein, adduce
evidence and be heard nor take part in the trial
4. Defendant is still entitled to notices of
subsequent proceedings
a. A defendant declared in default cannot take
part in the trial, but he cannot be disqualified
from testifying as a witness in favor of non-
defaulting defendants. [Cavili v. Florendo
(1987)]
b. A party in default is entitled to notice of:
(1) Motion to declare him in default;
(2) Order declaring him in default;
(3) Subsequent proceedings;
(4) Service of final orders and judgments.
5. A defending party declared in default retains the
right to appeal from the judgment by default.
However, the grounds that may be raised in such
an appeal are restricted to any of the following:
a. The failure of the plaintiff to prove the
material allegations of the complaint;
b. The decision is contrary to law; and
 c. The amount of judgment is excessive or
different in kind from that prayed for.
[Ortero v. Tan (2012)]

Relief from an Order of Default (Lina v. CA)

1. The defendant in default may file a motion, under
oath, to set aside the order of default
 At any time after discovery thereof (from
Notice) and before judgment,

2. If the judgment has already been rendered, he

may file for new trial under Sec. 1 (a) Rule 37
 When the defendant discovered the default,
but before the same has become final and
executory

3. If defendant discovered the default after

judgment had 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 to the
law, even if no petition to set aside the order of
default has been presented by him

Partial Default - When the complaint states a common

cause of action against several defendants some of whom
answers and some of them do not, the court should
declare defaulting defendants in default, and proceed to
trial on answers of others

If the defense is personal to the one who answered, it will

not benefit those who did not answer.

Extent of Relief to be Awarded

1. A judgment rendered against a party in default
shall not exceed the amount or be different in
kind from that prayed for nor award unliquidated
damages
2. If the claim is not proved, the case should be
dismissed
3. As held in Datu Samad Mangelen v. CA (1992):
a. In a judgment based on evidence presented
ex parte, judgment should not exceed the
amount or be different in kind from that
prayed for.
b. On the other hand, in a judgment where an
answer was filed but defendant did not
appear at the hearing, the award may exceed
the amount or be different in kind from that
prayed for.

Actions Where Default is NOT allowed:

1. An action for annulment or declaration of nullity
of marriage
2. For legal separation
3. Special civil actions of certiorari, prohibition and
mandamus where comment instead of an answer
is required to be filed
4. Summary procedure

34
 DEFAULT IN ORDINARY PROCEDURE

After the lapse of time to file If motion denied:

an answer, the plaintiff may Defendant allowed to file an
move to declare the defendant answer
in default

If motion granted:
Court issues order of default
and renders judgment or
require plaintiff to submit
evidence ex parte

Before judgment by default is

rendered, defendant may:
(1) Move to set aside order of
Court maintains order of
default upon showing of FAME
default
and that he has a meritorious
defense;
(2) Avail of Rule 65 in proper
cases

Court sets aside order of

default and defendant is
allowed to file an answer
Presentation of plaintiff’s
evidence ex-parte

Case set for pre-trial

If plaintiff proves his If plaintiff fails proves his

allegations: allegations:
Judgment by default Case is dismissed

35
FILING AND SERVICE OF PLEADINGS Service - The act of providing a party or his counsel with a
copy of the pleading or paper concerned. [Rule 13, Sec. 2]
PAYMENT OF DOCKET FEES
Papers required to be filed and served: (Rule 13, Sec. 4)
As a rule, the court acquires jurisdiction over the case 1. Pleading subsequent to the complaint;
only upon payment of prescribed fees 2. Appearance;
3. Written Motion;
General rule: Without payment, case is considered not 4. Notice;
filed. Payment of docket fees is mandatory and 5. Order;
jurisdictional. 6. Judgment;
7. Demand;
It is not simply the filing of the complaint or appropriate 8. Offer of Judgment;
initiatory pleading but the payment of the prescribed 9. Resolution;
docket fee, that vests a trial court with jurisdiction over 10. Similar papers.
the subject matter or nature of the action [Proton Pilipinas
v. Banque National de Paris (2005)]
PERIODS OF FILING OF PLEADINGS
Effect of Failure to Pay Docket Fees at Filing
PERIOD
PLEADING PERIOD
1. The Manchester Rule: Manchester v. CA (1987) COUNTED FROM
a. Automatic Dismissal Service of
b. Any defect in the original pleading resulting summons, unless
in underpayment of the docket fees cannot a different period
be cured by amendment, such as by the Within 15 days
is fixed by the
reduction of the claim as, for all legal court (Rule 11,
purposes, there is no original complaint over Sec. 1
which the court has acquired jurisdiction Within 30 days if the
defendant is a foreign
2. Relaxation of the Manchester Rule by Sun Answer to Receipt of
private juridical
Insurance v. Asuncion (1989) the summons (Rule
entity and service of
a. NOT automatic dismissal Complaint 11, Sec. 2)
summons is made on
b. Court may allow payment of fees within government official
reasonable period of time. Note that payment At least 60 days
should always be within the prescriptive In case of non- Service of
period of the action filed. resident defendant extrajudicial
on whom summons (Sec.
3. Further modification by Heirs of Hinog v. Melicor extrajudicial service 15, Rule 14)
(2005) is made
a. Fees as lien Answer to
b. Where the trial court acquires jurisdiction Within 15 days Service of a copy
AMENDED
over a claim by the filing of the pleading and (if amendment was a of the amended
Complaint
the payment of the prescribed filing fee, BUT matter of right) complaint
(amended
SUBSEQUENTLY, the judgment awards a counterclaim,
claim not specified in the pleading, or cannot cross-claim, Notice of the
then be estimated, or a claim left for 3rd party Within 10 days
order admitting
determination by the court, then the (if amendment was
complaint, the same (Rule
additional filing fee shall constitute a lien on complaint in not a matter of right)
11, Sec. 3)
the judgment intervention)
Answer to
4. Exception to the Sun Insurance doctrine: Gochan Counterclaim From service
v. Gochan Within 10 days
or Cross- (Rule 11, Sec. 4)
a. The Sun Insurance rule allowing payment of Claim
deficiency does not apply where plaintiff Answer to Same rule as
never demonstrated any willingness to abide third (4th, Within 15 days answer to the
by the rules to pay the docket fee but etc)- party complaint (Rule
stubbornly insisted that the case filed was complaint 11, Sec. 5)
one for specific performance and damages. From service of
the pleading
Reply Within 10 days
responded to
FILING VERSUS SERVICE OF PLEADINGS (Rule 11, Sec. 6)
Answer to From notice of
Filing - The act of presenting the pleading or other paper supplemental Within 10 days the order
to the clerk of court. [Rule 13, Sec. 2] complaint admitting the
36
 same, unless a a. Date of filing is determinable from 2 sources:
different period (1) From the post office stamp on the
is fixed by the envelope
court (2) From the registry receipt

NOTE: Upon motion and on such terms as may be just, the b. It is done by depositing in the post office:
court may extend the time to plead provided in these (1) In a sealed envelope
Rules. The court may also, upon like terms, allow an (2) Plainly addressed to the party or his
answer or other pleading to be filed after the time fixed counsel
by these Rules. [Rule 11, Sec. 11] (a) At his office if known
(b) Otherwise, at his residence if known
(3) Postage fully pre-paid
MANNER OF FILING (4) With instructions to the postmaster to
return the mail to the sender after 10
As per Rule 13, Sec. 3: days if undelivered
1. Personally
a. By By personally presenting the original to Substituted Service (Rule 13, Sec. 8)
the clerk of court. 1. Done by delivery of the copy to the clerk of court
b. The pleading is deemed filed upon the with proof of failure of both personal and service
receipt of the same by the clerk of court who by mail
shall endorse on it the date and hour of filing. 2. Proper only when:
c. If a party avails of a private carrier, the date a. Service cannot be made personally or by mail
of the court’s actual receipt of the pleading b. Office and place of residence of the party of
(not the date of delivery to the private his counsel being unknown
carrier) is deemed to be the date of the filing 3. Service is complete at the time of such delivery
of that pleading. [Benguet Electric
Cooperative v. NLRC (1992)]
SERVICE OF JUDGMENTS, FINAL ORDERS, OR
2. By Registered Mail RESOLUTIONS (Rule 13, Sec. 9)
a. Filing by mail should be through the registry
service (i.e. by depositing the pleading in the Service is done either:
post office). 1. Personally
b. The pleading is deemed filed on the date it 2. By registered mail
was deposited with the post office. 3. By publication ONLY IF:
a. Party is summoned by publication AND
Filing a pleading by facsimile is not sanctioned. But fax b. He failed to appear in the action
was allowed in an extradition case (Justice Cuevas v. Juan
Antonio Munoz) NOTE: There is NO substituted service of
judgments and final orders

MODES OF SERVICE
Personal Service (Rule 13, Sec. 6)
1. Delivering personally a copy to the party, who is
not represented by a counsel, or to his counsel; or
2. Leaving a copy in counsel’s office with his clerk
or with a person having charge thereof; or
3. Leaving the copy between 8am and 6pm at the
party’s or counsel’s residence, if known, with a
person of sufficient age and discretion then
residing thereon – if not person is found in his
office, or if his office is unknown, or if he has no
office
PRIORITIES IN MODES OF SERVICE AND FILING
General rule: Personal filing and service is preferred.
(Rule 13, Sec. 11)
Resort to other modes of filing and service must be
accompanied by an explanation why the service/filing
was not done personally. If there is no written
explanation, the paper is considered not filed.
Exception: Papers emanating from the court.

Service by Mail (Rule 13, Sec. 7) WHEN SERVICE IS DEEMED COMPLETE

1. Ordinary Mail - it does not constitute filing until
the papers are actually delivered into the custody Completeness of service Proof of service
of clerk or judge (Rule 13 Sec. 10) (Rule 13 Sec. 13)
a. Service may be done by ordinary mail if no Personal service
registry service is available in the locality of Written admission of the
either sender or addressee party served, OR
Upon actual delivery
Official return of the server
2. Registered Mail - The date of mailing is the date OR
of filing
37
 Affidavit of the party serving, Upon receipt of the Written/stamped
with a full statement of the pleading by the clerk of acknowledgment by the
date/place/manner of court clerk of court
service. By registered mail
Service by ordinary mail Registry receipt, and
Affidavit of the person affidavit of the person who
10 days after mailing, did the mailing with:
mailing of facts showing
unless otherwise (a) Full statement of
compliance with Sec. 7 of
provided by the court the date/place of
Rule 13.
Service by registered mail depositing the
Affidavit of the person mail in the post
Whichever is earlier: On the date the pleading office in a sealed
mailing of facts showing
compliance with Sec. 7 of was deposited with the envelope
Actual receipt by the post office addressed to the
Rule 13
addressee court
OR (b) Postage fully paid
AND
5 days after the (c) Instructions to the
addressee received 1st postmaster to
Registry receipt issued by
postmaster's notice return the mail to
the post office
(Constructive) the sender after 10
days if undelivered
Substituted Service
At the time of delivery of the copy to the clerk of court
together with proof of failure of both personal service and
service by mail PROOF OF SERVICE (Rule 13, Sec. 13)

Purpose of the rule on completeness of service for service by MODE PROOF OF SERVICE
registered mail: A written admission of the
party served, OR
To make sure that the party being served with the The official return of the
pleading, order or judgment is duly informed of the same server; OR
so that such party can take steps to protect the interests, Personal Service Affidavit of the party
i.e., enable to file an appeal or apply for other appropriate serving containing a full
reliefs before the decision becomes final. [MINTERBRO statement of the date,
v,CA (2012)] place, and manner of
service
Service to the lawyer binds the party. But service to the Affidavit of the person
party does not bind the lawyer, unless ordered by the mailing stating the facts
court in the following circumstances: Service by ordinary mail
showing compliance with
1. When it is doubtful who the attorney for such Rule 13, Sec. 7
party is; or Affidavit of person mailing
2. When the lawyer cannot be located; or containing facts showing
3. When the party is directed to do something compliance with Rule 13,
personally, as when he is ordered to show cause. Sec. 7, AND
[Retoni, Jr. v. CA]
Registry receipt issued by
mailing office; OR
Notice to the lawyer who appears to have been
The registry return card
unconscionably irresponsible cannot be considered as
which shall be filed
notice to his client, as it would then be easy for the lawyer Service by registered mail
immediately upon its
to prejudice the interests of his client by just alleging that
receipt by the sender, or in
he just forgot every process of the court affecting his
lieu thereof of the
clients, because he was so busy. [Bayog v. Natino]
unclaimed letter together
with the certified or sworn
copy of the notice given by
PROOF OF FILING
the postmaster to the
addressee.
1. Filing is proved by its existence in the record of
the case (Rule 13, Sec. 12)
AMENDMENT AND SUPPLEMENTAL PLEADINGS
2. If it is not in the record:
HOW TO AMEND PLEADINGS (Rule 10, Sec. 1)
When pleading is deemed
Proof of filing 1. Adding an allegation of a party;
filed
2. Adding the name of a party;
Personally
38
 3. Striking out an allegation of a party;
4. Striking out the name of a party;
5. Correcting a mistake in the name of a party; and
6. Correcting a mistaken or inadequate allegation or
description in any other respect
A new copy of the entire pleading, incorporating
the amendments, which shall be indicated by
appropriate marks, shall be filed. (Rule 10, Sec. 7)
Purpose: That the actual merits of the controversy may
speedily be determined, without regard to technicalities,
and in the most expeditious and inexpensive manner.
As a general policy, liberality in allowing amendments is
greatest in the early stages of a law suit, decreases as it
progresses and changes at times to a strictness
amounting to a prohibition. This is further restricted by
the condition that the amendment should not prejudice
the adverse party or place him at a disadvantage. (Barfel
Development v. CA, 1993)
Types of Amendments:
1. Amendment as a matter of right
2. Amendment as a matter of judicial discretion
AMENDMENTS AS A MATTER OF RIGHT (Rule 10, Sec. 2)
When amendment is allowed as a matter of right:
1. Once as a matter of course
a. A 2nd or subsequent amendment must now
be with leave of court, not a matter of right
anymore
2. Instances:
a. Substantial amendment – before responsive
pleading is filed
(1) Amendment of complaint before an
answer is filed.
(2) Amendment of answer before a reply is
filed or before the period for filing a
reply expires
(3) Amendment of reply any time within 10
days after it is served
b. Formal amendment
AMENDMENTS BY LEAVE OF COURT (Rule 10, Sec. 3)
When leave of court is necessary before amendment is
allowed:
1. All substantial amendments (unless it falls under
Rule 10, Sec. 2 as a matter of right)
2. When a responsive pleading has already been
served
Requisites:
1. A motion for leave of court to amend pleading is
filed
a. Amended pleading should be attached to the
motion (see Sec. 9, Rule 15)
2. Notice is given to the adverse party
3. Parties are given opportunity to be heard
39
Grounds for allowance of the amendment
1. If it appears to the court that the motion was
made to delay the action, leave of court is not
given
2. There must be some reasonable grounds
justifying its exercise of discretion to allow
amendment
When amendment by leave of court may not be allowed
1. If the cause of action, defense or theory of the
case is changed.
2. If amendment is intended to confer jurisdiction
to the court.
a. If the court has no jurisdiction in the subject
matter of the case, the amendment of the
complaint cannot be allowed so as to confer
jurisdiction on the court over the property.
[PNB v. Florendo (1992)]
3. If amendment is for curing a premature or non-
existing cause of action.
4. If amendment is for purposes of delay.
FORMAL AMENDMENTS (Rule 10, Sec. 4)
When an amendment is formal:
1. When there is a mere defect in the designation of
the parties;
2. Other clearly clerical or typographical errors
How formal amendments are effected
1. It may be summarily corrected by the court at
any stage of the action
2. A party may, by motion, call for the formal
amendment
NOTE: The formal amendment must NOT cause prejudice
to the adverse party
AMENDMENTS TO CONFORM TO OR AUTHORIZE
PRESENTATION OF EVIDENCE (Rule 10, Sec. 5)
Applicability of Sec. 5 - This is an instance wherein the
court acquires jurisdiction over the issues even if the
same are not alleged in the original pleadings of the
parties where the trial of said issues is with the express or
implied consent of the parties
What Sec. 5 contemplates:
1. It allows a complaint which states no cause of
action to be cured either by:
a. Evidence presented without objection or
b. In the event of an objection sustained by the
court, by an amendment of the complaint
with leave of court
2. It also allows the admission of evidence:
a. On a defense not raised in a motion or
answer if no objection is made thereto;
b. In the event of such objection, court may
allow amendment of the answer in order to
raise said defense
NOTE: Remember, however, that where the plaintiff has When an amended A supplemental pleading
no valid cause of action at the time of the filing of the pleading is filed, a new does not require the filing
complaint, this defect cannot be cured or remedied by the copy of the entire pleading of a new copy of the entire
acquisition or accrual of one while the action is pending must be filed pleading

Two Scenarios: Limitations:

1. When evidence is NOT objected to
 When issues not raised by pleadings are tried
by express or implied consent of the parties,
they shall be treated in all respected as if
they had been raised in the pleadings
 Such amendments of pleadings as may be
necessary to cause them to conform to the
evidence and raise these issues may be made
upon motion of any party at any time, even
after judgment
 But failure to amend does not affect the
result of the trial of those issues
2. When evidence IS objected to:
 Objection on the ground that it is not within
the issues made by the pleadings
 Court may allow the pleadings to be
amended and shall do so freely when the
presentation of the merits of the action will
be subserved
 As safeguard, the court may grant a
continuance to enable the objecting party to
meet such evidence
1. Claims or defenses which have matured after the
filing of the original pleadings cannot be averred
in a supplemental pleading (it may be the subject
of an amendment)
2. Supplemental pleadings are not allowed on
separate and distinct causes of action
a. A supplemental pleading may raise a new
cause of action as long as it has some relation
to the original cause of action set forth in the
original complaint. [Ada v. Baylon (2012)]
3. The admission or non-admission of a
supplemental pleading is not a matter of right but
is discretionary on the court
EFFECT OF AMENDED PLEADING (Rule 10, Sec. 8)
1. An amended pleading supersedes the pleading
that it amends
2. Admissions in the superseded pleading can still
be received in evidence against the pleader
3. Claims or defenses alleged therein but not
incorporated or reiterated in the amended
pleading are deemed waived

SUPPLEMENTAL PLEADINGS

Definition: One which sets forth transactions, occurrences

or events which have happened since the date of the
pleading sought to be supplemented. [Rule 10, Sec. 6]

Purpose: To bring into the records new facts which will

enlarge or change the kind of relief to which the plaintiff
is entitled [Ada v. Baylon (2012), citing Young v. Spouses
Yu]

A supplemental complaint/pleading supplies deficiencies

in aid of an original pleading, not to entirely substitute the
latter.

How Made: It is made upon motion of a party with

reasonable notice and upon terms as are just.

Difference with Amended Pleading

Amendments Supplemental pleadings

Grounds for the

Reason for the amendment
supplemental pleading
is available at time of the
arose after the 1st pleading
1st pleading
was filed
Either as a matter of right Always a matter of
or a matter of discretion discretion
Merely supplements the
original (i.e. Exists side by
Supersedes the original
side with the original
pleading)
40
 SUMMONS
Definition: A coercive force issued by the court to acquire
jurisdiction over the person of the defendant
NATURE AND PURPOSE OF SUMMONS IN RELATION TO
ACTIONS IN PERSONAM, IN REM, AND QUASI IN REM
Purposes of Summons
1. For Actions in Personam
a. To acquire jurisdiction over the person of the
defendant in a civil case;
b. To give notice to the defendant that an action
has been commenced against him.
2. For Actions in Rem and Quasi In Rem
a. Not to acquire jurisdiction over the
defendant but mainly to satisfy the
constitutional requirement of due process
b. Jurisdiction over the defendant is not
required and the court acquires jurisdiction
over an action as long as it acquires
jurisdiction over the res
Issuance of Summons - Upon the filing of the complaint
and the payment of legal fees, the clerk of court shall issue
the corresponding summons to the defendants. [Rule 14,
Sec. 1]
Contents of Summons (Rule 14, Sec. 2) –
1. Summons shall be:
a. Directed to the defendant
b. Signed by clerk of court under seal
2. Summons shall contain:
a. Name of the court and the names of the
parties to the action
b. A direction that the defendant answer within
the time fixed by the Rules
c. A notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief applied
for
3. The following shall be attached to the original
and each copy of the summons:
a. A copy of the complaint
b. Order for appointment of guardian ad litem
(if any)
Effect of Invalid Summons
1. The trial court does not acquire jurisdiction and
renders null and void all subsequent proceedings
and issuances (Syjuco v. Castro)
2. Any judgment without service of summons in the
absence of a valid waiver is null and void
(Filmerco Commercial Co. v. IAC)
VOLUNTARY APPEARANCE
41
Any form of appearance in court, by the defendant, by his
agent authorized to do so, or by attorney, is equivalent to
service except where such appearance is precisely to
object the jurisdiction of the court over the person of the
defendant (Carballo v. Encarnacion)
General Rule: Defendant's voluntary appearance in the
action shall be equivalent to service of summons;
Exception: Special appearance to file a MTD.
BUT inclusion in the MTD of grounds other than LOJ over
the defendant’s person, is not deemed a voluntary
appearance.
Any mode of appearance in court by a defendant or his
lawyer is equivalent to service of summons, absent any
indication that the appearance of counsel for petitioner is
precisely to protest the jurisdiction of the court over the
person of the defendant. [Delos Santos v. Montesa (1993)]
WHO MAY SERVE SUMMONS
Who May Serve Summons (Rule 14, Sec. 3)
1. The sheriff
2. His deputy
3. Other proper court officer
4. Any suitable person authorized by the court (for
justifiable reasons)
NOTE: The enumeration in Sec. 3 of the persons
who may validly serve summons is EXCLUSIVE
(Herrera)
RETURN OF SUMMONS
Return When Service has been Completed (Rule 14, Sec. 4)
1. The server shall serve a copy of the return to the
plaintiff’s counsel
a. Within 5 days therefrom
b. Personally or by registered mail
2. The server shall return the summons
a. To the clerk who issue it
b. Accompanied by proof of service
It is required to be given to the plaintiff’s counsel in order
to enable him:
1. To move for a default order should the defendant
fail to answer on time, or
2. In case of non-service, so that alias summons may
be sought
In either of the 2 cases, server must serve a copy
of the return on plaintiff’s counsel within 5 days
from completion or failure of service
ALIAS SUMMONS (Rule 14, Sec. 5)
Upon plaintiff’s demand, the clerk may issue an alias
summons if either:
 1. Summons is returned without being served on 1. By leaving copies of the summons at the
any/all of the defendants. defendant’s residence with some person of
2. Summons was lost. suitable age and discretion residing therein; or
2. By leaving the copies at defendant’s office or
The server shall also serve a copy of the return on the regular place of business with some competent
plaintiff's counsel within 5 days therefrom, stating the person in charge thereof
reasons for the failure of service
Necessary Requisite: For substituted service of summons
to be valid, it is necessary to establish the following:
MODES OF SERVICE OF SUMMONS 1. The impossibility of the personal service of
summons within a reasonable time
Modes: 2. The efforts exerted to locate the person to be
1. Personal Service (Rule 14, Sec. 6) served; and
2. Substituted Service (Rule 14, Sec. 7) 3. Service upon:
3. Service by Publication (Rule 14, Sec. 14, 15, 16) a. A person of sufficient age and discretion
residing in the same place as defendant or
NOTE: Summons cannot be served by mail b. Some competent person in charge of his
- Where service is made by publication, a copy of office or regular place of business (Spouses
the summons and order of the court shall be sent Ventura v. CA, 1987)
by registered mail to last known address of
defendant (Sec. 15) Meaning of RESIDENCE
 Resort to registered mail is only 1. For a substituted service to be valid, summons
complementary to the service of summons by served at the defendant’s residence must be
publication served at his residence AT THE TIME OF
 But it does not mean that service by SERVICE; not his former place of residence
registered mail alone would suffice 2. “dwelling house” or “residence” refers to the
dwelling house at the time of service
3. They refer to the place where the person named
PERSONAL SERVICE OF SUMMONS (Rule 14, Sec. 6) in the summons is living at the time of when the
service is made, even though he may be
How Done: temporarily out of the country at that time
1. By handing a copy of summons to him; or (Venturanza v. CA)
2. If he refuses to receive it, by tendering it to him
Meaning of Defendant’s Office or Regular Place of Business
Personal Service of Personal Service of 1. “Office” or “regular place of business” refers to
Pleadings Summons on Defendant the office or place of business of defendant at the
Rule 13, Sec. 6 Rule 14, Sec. 6 time of service
Personal service includes: Service is only made on 2. The rule specifically designates the persons to
1. Service on the defendant himself whom copies of the process should be left
party or his 3. “To be in charge” means to have care an custody
counsel; or of, under control of, or entrusted to the
2. By leaving a copy management or direction of (Sandoval II v. House
with the clerk or of Representatives)
person having
charge of his office; Proof of Substituted Service MUST:
or 1. Indicate the impossibility of service of summons
3. Leaving it with a within a reasonable time;
person of sufficient 2. Specify the efforts exerted to locate the
age and discretion defendant; and
at the party’s or 3. State that the summons was served upon a
counsel’s person of sufficient age and discretion who is
residence residing in the address, or who is in charge of the
office or regular place of business, of the
defendant.
SUBSTITUTED SERVICE OF SUMMONS (Rule 14, Sec. 7) 4. It is likewise required that the pertinent facts
proving these circumstances be stated in the
It is only when the defendant cannot be served personally proof of service or in the officer’s return. [Sps. Tiu
within a reasonable time and for justifiable reasons that a v. Villar (2012)]
substituted service may be made.

How Done: CONSTRUCTIVE SERVICE (BY PUBLICATION)

Three Situations were Summons by Publication may be

allowed under Rule 14 (Baltazar v. CA)
42
 1. First is the situation of an Unknown Defendant –
governed by Sec. 14
2. Second is the situation were Extraterritorial
service is proper – governed by Sec. 15
3. Third, is that of a resident who is temporarily out
of the Philippines – governed by Sec. 16
The Rule on Unknown Defendants (Rule 14, Sec. 14)
If a defendant is a resident and plaintiff cannot determine
the correct address of respondent, petitioner only needs
to show that:
1. Respondent’s address is unknown and
2. Cannot be ascertained by diligent inquiry
The Rule on Residents Temporarily Outside of the
Philippines (Rule 14, Sec. 16)
How done:
1. Always by leave of court
2. Modes:
a. Where the defendant is residing in the
Philippines, jurisdiction over his person may
be acquired by substituted service of
summons under Sec. 7
b. Extra-territorial service is also allowed (also
by leave of court) according to Sec. 16

Upon compliance with this requirement, it can
validly serve summons by publication in a
newspaper of general circulation. (United
Coconut Planters Bank v. Ongpin)
NOTE: Under this Section, summons by publication can be
made in ANY action (personam, in rem, quasi in rem)
unlike in cases of Non-Resident Defendants.
The Rule on Non-Resident Defendants (Extra-territorial
Service); Rule 14, Sec. 15
NOTE: In other words, a resident defendant in an action
personam, who cannot be personally served with
summons, may be summoned either by:
1. Substituted service in accordance with Sec. 7,
Rule 14
2. Or by service by publication under Sec. 16, Rule
14
When the action is in rem or quasi in rem, extra-
territorial service may be effected provided that Sec. 16
requirements are met.

Extra-territorial service is allowed IF: SERVICE UPON PRISONERS AND MINORS

1. The defendant
a. Does not reside in the Philippines Service of Summons on Different Entities:
b. And is not found in the Philippines
2. And the action (in rem and quasi in rem) DEFENDANT SERVICE OF SUMMONS
a. Affects the personal status of the plaintiff, or Entity without
b. Relates to or the subject of which is property Upon any or all the defendants being
juridical
within the Philippines sued under common name; or person
personality
(1) In which defendant has or claims a lien in charge of the office
(Sec. 8)
or interest, actual or contingent; or In case of minors: by serving upon:
(2) In which the relief demanded consists, 1. The minor, regardless of age,
wholly or in part, in excluding the AND
defendant from any interest therein, or 2. Upon his legal guardian, or
(3) Property of defendant has been attached also upon either of his
within the Philippines parents
In case of incompetents: by serving
NOTE: Always remember that extra-territorial Minors and on:
service, when allowed, covers only action in rem incompetents 1. Him personally AND
and quasi in rem. (Sec. 10) 2. Upon his legal guardian, but
not upon his parents, unless
How Extra-territorial service is done: they are his legal guardians
1. Always by leave of court In any event: if the minor or
2. Modes: incompetent has no legal guardian,
a. Personal service as under Sec. 6, Rule 14 the plaintiff must obtain the
b. Publication in a newspaper of general appointment of a guardian ad litem
circulation in such places and for such time for him
as court may order Serve to either: (Exclusive
(1) A copy of the summons and order of the enumeration)
court shall be sent by registered mail to Domestic 1. The president,
the last known address of defendant private 2. Managing partner,
c. In any other manner the court may deem juridical entity 3. General manager,
sufficient (Sec. 11) 4. Corporate secretary,
5. Treasurer, or
NOTE: Any order granting such leave shall specify a 6. In- house counsel
reasonable time within which defendant must answer Foreign Service may be done on:
BUT the time shall not be less than 60 days after notice
43
 private 1. The resident agent;
juridical entity 2. If no resident agent;
(Sec. 12) a. The government official
designated by law; or
b. Any officer or agent of the
corporation within the
Philippines
In case defendant is the Republic, by
serving upon the Solicitor General
In case of a province, city or
Public
municipality, or like public
corporations
corporations, by serving on its
(Sec. 13)
executive head or on such other
officer or officers as the law or the
court may direct

PROOF OF SERVICE

The proof of service of summons (Rule 14, Sec. 18):

1. Shall be made in writing
2. It shall:
a. Set forth the manner, place, date of service
b. Specify any papers which may have been
served with the process and the name of the
person who received the same
c. Shall be sworn to when made by a person,
other than the sheriff or his deputy

If service has been made by publication, service may be

proved by: (Rule 14, Sec. 19)
1. The affidavit of the printer, his foreman, or
principal clerk; or of the editor, business or
advertising manager
 Copy of the publication shall be attached

2. AND an affidavit showing:

a. The deposit of a copy of the summons; and
b. Order of publication in the post office,
postage prepaid, directed to defendant by
registered mail to his last known address

Effect of Defect of Proof of Service:

1. Where sheriff’s return is defective, presumption
of regularity in the performance of official
functions will not lie
2. Defective return is insufficient and incompetent
to prove that summons was indeed served
3. Party alleging valid summons will now prove that
summons was indeed served
4. If there is no valid summons, court did not
acquire jurisdiction which renders null and void
all subsequent proceedings and issuances

44
 MOTIONS
2. Hearing on the motion set by the applicant
MOTIONS IN GENERAL
Motion Day (Rule 15, Sec. 7) - Except for urgent
DEFINITION OF A MOTION motions, motions are scheduled for hearing:
a. On Friday afternoons;
A motion is an application for relief other than by a b. Afternoon of the next working day, if Friday
pleading. (1a) is a non-working day.

3. Notice of hearing shall be addressed to all parties,

MOTIONS VERSUS PLEADINGS and shall specify the time and date of the hearing
which shall not be later than 10 days from the
filing of the motion. [Rule 15, Sec. 5]
Motion Pleading
Notice must be addressed to the counsels. A
Contains allegations of Contains allegations of the notice of hearing addressed to the clerk of court,
facts ultimate facts and not to the parties, is no notice at all.
Prays for a relief Prays for a relief Accordingly, a motion that does not contain a
Grant of the relief does not Grant of relief extinguishes notice of hearing to the adverse party is nothing
extinguish the action the action (final relief) but a mere scrap of paper, as if it were not filed;
(interlocutory relief) hence, it did not suspend the running of the
Generally in writing (with Always in writing period to appeal. [Provident International
some exceptions) Resources v. CA (1996)]

- Effect of Want of Notice: A motion that does not

General Rule: A motion cannot pray for judgment
contain a notice of hearing is but a mere scrap of
paper. A court has no jurisdiction to issue an
Exceptions:
order in consideration of a motion for correction
1. Motion for judgment on the pleadings.
of judgment which does not have a proper notice
2. Motion for summary judgment.
of hearing (Fajardo v. CA)
3. Motion for judgment on demurrer to evidence.

4. Motion and notice of hearing must be served at

CONTENTS AND FORM OF MOTIONS
least 3 days before the date of hearing; [Rule 15,
Sec. 4]
Contents (Rule 15, Sec. 3)
1. Relief sought to be obtained
Purpose: To prevent surprise upon the adverse
2. Grounds upon which it is based
party and to enable the latter to study and meet
3. Accompanied by supporting affidavits and other
the arguments of the motion.
papers if:
a. Required by the Rules, or
Exceptions:
b. Necessary to prove facts alleged therein
a. Ex parte motions;
b. Urgent motions;
Form (Rule 15, Sec. 2)
c. Motions agreed upon by the parties to be
heard on shorter notice, or jointly submitted
General Rule: In writing.
by the parties;
d. Motions for summary judgment which must
Exception: Oral motions:
be served at least 10 days before its hearing.
1. Motions for continuance made in the presence of
the adverse party or those made in the course of
5. Proof of Service
the hearing or trial
2. Those made in open court even in the absence of
Proof of Service (Rule 15, Sec. 6)
the adverse party or those made in the course of
a hearing or trial
General Rule: A written motion set for hearing will not be
acted upon by the court if there is no proof of service
thereof.
NOTICE OF HEARING AND HEARING OF MOTIONS
What may be proof:
Requisites of motions (not made in open court or in the
1. If by registered mail: Affidavit or registry receipt
course of hearing/trial)
or postmark on envelope or return card, with an
explanation.
1. It must be in writing; [Rule 15, Sec. 2]
2. If by personal service: Affidavit or
acknowledgment of receipt by the other party.
Exception: Oral motions
45
Exceptions:
1. If the motion is one which the court can hear ex
parte.
2. If the court is satisfied that the rights of the
adverse parties are not affected by the motion.
3. If the party is in default because such a party is
not entitled to notice.
OMNIBUS MOTION RULE
Definition: A motion attacking a pleading/ order/
judgment/ proceeding must include all objections then
available. All objections not included in the motion are
deemed waived.
Purpose: To require the movant to raise all available
exceptions for relief during a single opportunity so that
multiple and piece-meal objections may be avoided
Exception: When the court’s jurisdiction is in issue:
1. Lack of jurisdiction over subject-matter;
2. Litis pendentia;
3. Res judicata;
4. Prescription.
LITIGATED AND EX PARTE MOTIONS
Kinds of Motion
1. Motion Ex Parte - Made without notification to
the other party because the question generally
presented is not debatable.
2. Litigated Motion - Made with notice to the
adverse party so that an opposition thereto may
be made.
3. Motion Of Course - Motion for a kind of
relief/remedy to which the movant is entitled to
as a matter of right, Allegations contained in such
motion do not have to be investigated/verified.
4. Special Motion - Discretion of the court is
involved. An investigation of the facts alleged is
required.
PRO FORMA MOTIONS
Definition - A motion failing to indicate time and date of
the hearing
46
MOTIONS FOR BILL OF PARTICULARS
DEFINTION
It is a detailed explanation respecting any matter which is
not averred with sufficient definiteness/particularity in
the complaint as to enable a party to properly prepare his
responsive pleading or to prepare for trial. [Rule 12, Sec.
1]
PURPOSE AND WHEN APPLIED FOR
It is filed by the plaintiff pursuant to a court order issued
upon granting a motion for Bill of Particulars filed by the
defendant before the latter files an answer.
- In said motion, the defendant prays for a more
definite statement of matters which are not
averred with sufficient definiteness in the
complaint.
- An action cannot be dismissed on the ground that
the complaint is vague/indefinite. The remedy of
the defendant is to move for a Bill of Particulars
or avail of the proper mode of discovery. [Galeon
v. Galeon (1973)]
Purpose: to define/ clarify/ particularize/ limit/
circumscribe the issues in the case to expedite the trial
and assist the court.
- The only question to be resolved in a motion for a
Bill of Particulars is WON the allegations in the
complaint are averred with sufficient
definiteness/ particularity to enable the movant
to properly prepare his responsive pleading and
to prepare for trial. [Tantuico, Jr. v. Republic
(1991)]
- A Bill of Particulars becomes part of the pleading
for which it was intended. [Rule 12, Sec. 6]
When Applied For: [Rule 12, Sec. 1]
1. Before responding to a pleading
2. If the pleading is a reply, within 10 days from
service thereof
What a Motion for a Bill of Particulars should point out:
(Rule 12, Sec. 1)
1. The defects complained of;
2. The paragraph wherein they are contained;
3. The details desired.
What cannot be done in a Bill of Particulars:
- To supply material allegations necessary to the
validity of a pleading
- To change a cause of action or defense stated in
the pleading
- To state a cause of action or defense other than
that one stated
- To set forth the pleader’s theory of his cause of
action or a rule of evidence on which he intends
to reply
- To furnish evidentiary information
ACTIONS OF THE COURT
Upon the filing of the motion, the clerk must immediately details about matters right or interest in such
bring it to the attention of the court. which are alleged generally action, the opportunity to
or which are indefinite and appear and be joined
The court may: (Rule 12, Sec. 2) vague,
1. Deny so he could assert or
2. Grant the motion outright so as to properly guide protect such right or
3. Allow the parties the opportunity to be heard such party in answering interest
the pleading and to avoid
surprise in the trial of the
COMPLIANCE WITH THE ORDER AND EFFECT OF case
NONCOMPLIANCE Available to any person not
yet a party to the action at
Compliance with Order (Rule 12, Sec. 3) – If motion is any time after the
granted wholly/partially: Available to the defendant
commencement of an
1. Within 10 days from notice of order, Bill of before he files his
action, even during the
Particulars or a more definite statement should responsive pleading
proceeding, but not after
be submitted (unless court fixes a different the trial has been
period). concluded
2. Bill of Particulars or definite statement filed
either as a separate pleading or as an amended Effect of Motion:
pleading, a copy of which must be served on the 1. If the motion is granted, in whole or in part,
adverse party. a. The movant can wait until the bill of
particulars is served on him by opposing
Effect of Non-Compliance (Rule 12, Sec. 4) – party
1. In case of non-compliance or insufficient b. Then he will have the balance of the
compliance with the order for Bill of Particulars, reglementary period within which to file his
the court: responsive pleading
a. May order the striking out of the pleading (or 2. If the motion is denied
portion thereof) to which the order is a. He will still have such balance of the
directed; OR reglementary period to file his responsive
b. Make such order as it may deem just. pleading, counted from service of the order
denying his motion
2. If a party fails to obey:
a. If the plaintiff fails to obey, his complaint IN ANY CASE: The party will have at least 5 days
may be dismissed with prejudice unless to file his responsive pleading
otherwise ordered by the court. [Rule 12,
Sec. 4; Rule 17, Sec. 3]
b. If defendant fails to obey, his answer will be
stricken off and his counterclaim dismissed,
and he will be declared in default upon
motion of the plaintiff. [Rule 9, Sec. 3; Rule
12, Sec. 4; Rule 17, Sec. 4]

EFFECT ON THE PERIOD TO FILE PLEADING (Rule 12,

Sec. 5)

A Motion for Bill of Particulars interrupts the period to

file a responsive pleading.
BUT only if it is sufficient in the form and
substance.

The period to which the movant is entitled at the time of

filing of the motion, which shall not be less than 5 days in
any event.

NOTE the following distinctions:

Bill of Particulars
Intervention
Purpose is to enable a Purpose is to enable a
party bound to respond to person not yet a party to an
a pleading to get more action, yet having a certain
47
MOTION TO DISMISS
IN GENERAL
Definition – A remedy of the defendant, or the responding
party in general, which attacks the entire pleading and
seeks its dismissal based on:
1. Grounds which are patent on the face of the
complaint;
2. Defenses available to the defendant at the time of
the filing of the complaint
It hypothetically admits the facts stated in the complaint.
It is not a responsive pleading. It is not a pleading at all. It
is subject to the omnibus motion rule since it is a motion
that attacks a pleading. Hence, it must raise all objections
available at the time of the filing thereof.
Types of Dismissal of Action:
1. MTD before answer under Rule 16;
2. MTD under Rule 17:
a. Upon notice by plaintiff;
b. Upon motion by plaintiff;
c. Due to fault of plaintiff.
3. Demurrer to evidence after plaintiff has
completed the presentation of his evidence under
Rule 33;
4. Dismissal of an appeal.
Period to File: Within the time for, but before filing of, the
answer to the complaint or pleading asserting a claim
Exceptions:
a. For special reasons which may be allowed
even after trial has begun, a motion to
dismiss may be filed
b. The court has allowed the filing of a motion
to dismiss where the evidence that would
constitute a ground for dismissal was
discovered during trial
General Rule: A court may NOT motu propio dismiss a
case, unless a motion to that effect is filed by a party.
Exceptions:
1. Cases where the court may dismiss a case motu
propio; [Rule 9, Sec. 1]
2. Failure to prosecute; [Rule 17, Sec. 3]
3. Sec. 4, Revised Rule on Summary Procedure.
GROUNDS: Rule 16, Sec. 1
1. Lack of jurisdiction over the defendant’s person
2. Lack of jurisdiction over the subject matter of the
claim
3. Improper venue
4. Plaintiff’s lack of legal capacity to sue
5. Litis pendentia
6. Res judicata
7. Prescription
8. Failure to state a cause of action
9. Extinguished claim
10. Unenforceable claim under the Statute of Frauds
48
11. Non-compliance with a condition precedent for
filing claim
NOTE: Complaints cannot be dismissed on ground not
alleged in a motion to dismiss. The motion may be based
on only one of the grounds enumerated in Sec. 1, Rule 16
Lack of Jurisdiction (LOJ) over the Defendant’s Person
The objection of LOJ over the person on account of lack of
service or defective service of summons, must be raised:
1. At the very first opportunity;
2. Before any voluntary appearance is made.
In La Naval Drug Corp. v. CA, et al. the Court held that
while lack of jurisdiction over the person of defendant
may be duly and seasonably raised, his voluntary
appearance in court without qualification is a waiver of
such defense.
Appearance of counsel is equivalent to summons, unless
such is made to protest the jurisdiction of the court over
the person of the defendant. If grounds other than invalid
service of summons are raised, it cannot be considered as
a special appearance. [De los Santos v. Montesa (1993)]
NOTE: Sec. 20, Rule 14 makes a categorical statement that
the inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the
defendant shall not be deemed voluntary appearance on
his part.
Lack of Jurisdiction over the Subject Matter of the Claim
If the complaint shows on its face LOJ, the court may
dismiss the case outright instead of hearing the motion.
A MTD on the ground of LOJ over the subject matter may
be raised either:
1. Before answer;
2. After answer is filed;
3. After hearing had commenced;
4. At any stage of the proceeding, even for the first
time on appeal and even if no such defense is
raised in the answer.
NOTE: The rule refers to the subject matter of each
particular claim and not only to that of the suit. Hence.
other initiatory pleadings included.
Where a party invokes the jurisdiction of a court to obtain
affirmative relief and fails, he cannot thereafter repudiate
such jurisdiction. While the issue of jurisdiction may be
raised at any time, he is estopped as it is tantamount to
speculating on the fortunes of litigation (Crisostomo, et al.
v. CA)
Improper Venue
Unless and until the defendant objects to the venue in a
MTD prior to a responsive pleading, the venue cannot
truly be said to have been improperly laid since, for all
practical intents and purposes, the venue though
technically wrong may yet be considered acceptable to
the parties for whose convenience the rules on venue had
been devised. Improper venue may be waived and such
waiver may occur by laches. [Diaz v. Adiong (1993)]
Where a motion to dismiss for improper venue is
erroneously denied, the remedy is prohibition (Enriquez
v. Macadaeg)
Where the plaintiffs filed the action in a court of improper
venue and thereafter submitted to its jurisdiction, the
issue of venue was thereby waived and they are in
estoppel to repudiate or question the proceedings in said
court (Vda. De Suan, et al. v. Cusi, et al.)
Objection to venue is also impliedly waived where the
party enters into trial, cross-examines the witnesses of
the adverse party and adduces evidence (Paper Industries
Corp of the Philippines v. Samson et al.)
Plaintiff’s Lack of Legal Capacity to Sue:
The plaintiff lacks legal capacity to sue:
1. When he does not possess the necessary
qualification to appear at the trial (e.g. when he
plaintiff is not in the full exercise of his civil
rights);
2. When he does not have the character which he
claims, which is a matter of evidence (e.g. when
he is not really a duly appointed administrator of
an estate).
Lack of legal capacity to sue refers to plaintiff’s disability;
while lack of legal personality to sue refers to the fact that
the plaintiff is not a real party in interest, in which case
the ground for dismissal would be that the complaint
states no cause of action.
The issue of plaintiff’s lack of legal capacity to sue cannot
be raised for the first time on appeal where the defendant
dealt with the former as a party in the proceedings below
(Univ. of Pangasinan Faculty Union v. Univ. of Pangasinan)
Litis pendentia
Requisites: (Anderson Group v. CA, 1997)
1. Identity of parties;
2. identity of rights asserted and relief prayed for;
3. Relief founded on the same facts and the same
basis;
4. Identity in the 2 proceedings should be such that
any judgment which may be rendered in the
other action will amount to res judicata on the
action under consideration.
It is not required to allege that there be a prior pending
case. It is sufficient to allege and prove the pendency of
another case, even if same had been brought later.
49
It does not require that the later case be dismissed in
favor of the earlier case. To determine which case should
be abated, apply:
1. The More Appropriate Action Test;
2. The Interest of Justice Test, taking into account:
a. Nature of the controversy;
b. Comparative accessibility of the court to the
parties;
c. Other similar factors.
In both tests, the parties’ good faith shall be taken into
consideration.
The 1st case shall be abated if it is merely an anticipatory
action or defense against an expected suit. The 2nd case
will not be abated if it is not brought to harass. [Vitrionics
Computers v. RTC (1993)]
Res Judicata
Requisites:
1. Former judgment rendered by a court having
jurisdiction over the subject matter and over the
parties;
2. Judgment must be a final judgment;
3. Judgment must be on the merits;
a. There can be res judicata without a trial, such
as in a judgment on the pleadings (Rule 34);
a summary judgment (Rule 35); or an order
of dismissal under Rule 17, Sec. 3.
4. There must be identity of parties, of subject
matter and of the causes of action.
For res judicata to apply, absolute identity of parties is
not required because substantial identity is sufficient.
Inclusion of additional parties will not affect the
application of the principle of res judicata.
The test of identity of cause of action lies not in the form
of the action but on WON the same evidence would
support and establish the former and the present causes
of action. [DBP v. Pundogar (1993)]
Rationale: The sum and substance of the whole doctrine is
that a matter once judicially decided is finally decided
because of:
1. Public policy and necessity makes it the interest
of the State that there should be an end to
litigation;
2. The hardship on the individual that he should be
vexed twice for the same cause. [Nabus v. CA
(1991)]
Two concepts of res judicata [Abalos v. CA 1993)
1. Bar by prior judgment – Judgment on the merits
in the 1st case constitutes an absolute bar to the
subsequent action not only as to every matter
which was offered and received to sustain or
defeat the claim/demand, but also to any other
admissible matter which might have been offered
for that purpose and to all matters that could
 have been adjudged in that case. (Asked in the
2002 Bar Exam)
2. Conclusiveness of judgment – Where the 2nd
action between the parties is upon a different
claim/demand, the judgment in the 1st case
operates as an estoppel only with regard to those
issues directly controverted, upon the
determination of which the judgment was
rendered.
Statute of Limitations
is insufficiency in the allegations in the pleading. The
latter means that there is insufficiency in the factual basis
of the action.
The failure to state a cause of action must be evident on
the face of the complaint itself.
Test: Assuming the allegations and statements to be true,
does the plaintiff have a valid cause of action?
A MTD based upon the ground of failure to state a cause
of action imports a hypothetical admission by the
defendant of the facts alleged in the complaint.

Prescription applies only when the complaint on its face
shows that indeed the action has already prescribed.
If the fact of prescription is not indicated on the face of
the complaint and the same may be brought out later, the
court must defer decision on the motion until such time as
proof may be presented on such fact of prescription.
If the court finds the allegations of the complaint to be
sufficient but doubts their veracity, it must deny the MTD
and require the defendant to answer and then proceed to
try the case on its merits.
A complaint containing a premature cause of action may
be dismissed for failure to state a cause of action.

If the suit is not brought against the real party-in-interest,

Prescription Laches a motion to dismiss may be filed on the ground that the
complaint states no cause of action. [Tanpinco v. IAC
Concerned with the fact of Concerned with the effect (1992)]
delay of delay
A matter of time A matter of equity Complaint states no cause of
No cause of action
Statutory Not statutory action
Applies in law Applies in equity Insufficiency of allegations Insufficiency of factual
Based on fixed time Not based on fixed time in the pleading basis for the action
May be raised in a Motion
Defense of prescription is waived and cannot be to Dismiss at any time but
considered on appeal if not raised in the trial court before the filing the answer may be raised at any time
(Ramos v. Osorio) to the complaint or
pleading asserting a claim
However, if the allegations of the complaint, or evidence dismissal due to lack of
presented, clearly indicate that the action has prescribed, Dismissal due to failure to cause of action is made
or where there is no issue in fact as to prescription, state a cause of action can after questions of fact have
defense of prescription is not deemed waived by failure be made at the earliest been resolved on the basis
to allege the same (Chua Lamko v. Dioso) stages of an action and of stipulations, admissions
without prejudice or evidence presented and
Estoppel and prescription cannot be invoked against the with prejudice
State (Republic v. CA)

A motion to dismiss on the ground of prescription will be Extinguished Claim

given due course only if the complaint shows on its face
that the action has already prescribed (Sison v. McQuaid)
If it is not apparent on its face, take note that Sec. 3
prohibits deferment of the resolution of the motion. Thus:
1. Evidence may be received in support of the
motion under Sec. 2, Rule 16; or
2. The motion to dismiss should be denied without
prejudice to the complaint’s dismissal if evidence
disclose that the action had already prescribed
(Sec. 1, Rule 9)
Complaint States No Cause of Action
Failure to state a cause of action (not lack of cause of
action) is the ground for a MTD. The former means there
50
That the claim/demand set forth in the plaintiff's pleading
has been paid, waived, abandoned or otherwise
extinguished.
Unenforceable Claim under the Statute of Frauds
Article 1403 (2) CC requires certain contracts to be
evidenced by some note or memorandum in order to be
enforceable, to wit:
1. An agreement that by its terms is not to be
performed within a year from the making
thereof;
2. A special promise to answer for the debt, default,
or miscarriage of another;
 3. An agreement made in consideration of marriage,
other than a mutual promise to marry;
4. An agreement for the sale of goods, chattels or
things in action, at a price not less than five
hundred pesos, unless the buyer accept and
receive part of such goods and chattels, or the
evidences, or some of them, of such things in
action, or pay at the time some part of the
purchase money; but when a sale is made by
auction and entry is made by the auctioneer in
his sales book, at the time of the sale, of the
amount and kind of property sold, terms of sale,
price, names of the purchasers and person on
whose account the sale is made, it is a sufficient
memorandum;
5. An agreement for the leasing for a longer period
than one year, or for the sale of real property or
of an interest therein;
6. A representation as to the credit of a third
person.
Unlike a motion to dismiss on the ground that the
complaint states no cause of action, a motion invoking the
Statute of Frauds may be filed even if the absence of a
cause of action does not appear on the face of the
complaint. Such absence may be proved during the
hearing of the motion to dismiss on said ground.
(Yuviengco et al. v. Dacuycuy, etc., et al.)
Non-Compliance with a Condition Precedent
Where the plaintiff has not exhausted all administrative
remedies, the complaint not having alleged the fact of
such exhaustion, the same may be dismissed for lack of
cause of action (Pineda v. CFI Davao, et al.)
Where the complaint does not state that it is one of the
excepted cases, or it does not allege prior availment of
conciliation process, or it does not have a certification
that no conciliation or settlement had been reached under
P 1508, case should be dismissed on motion (Morata v.
Go, et al.)
Where the defendant had participated in the trial court
without any invocation of PD 1508, and the judgment
therein had become final and executory, but said
defendant thereafter sought the annulment of the
decision for alleged lack of jurisdiction, the same was
denied under the doctrine of estoppel and laches (Royales,
et al., v. IAC)
RESOLUTION OF MOTION
During the hearing of the motion: Parties shall submit:
1. Their arguments on questions of law
2. Their evidence on questions of fact (Rule 16, Sec.
2)
a. Exception: Those not available at that time
Parties should be allowed to present evidence and the
evidence should be taken down
51
EXCEPT: when the motion is based on the ground of
insufficiency of cause of action which must generally
be determined on the basis of the facts alleged in the
complaint
Trial: If the case goes to trial, such evidence presented
shall automatically be part of the evidence of the party
presenting the same.
Lack of formal hearing of a motion to dismiss is not fatal
where the issues raised were fully discussed in the
motion and opposition. (Castillo v. CA)
After hearing: Court may either:
1. Dismiss the action/claim
2. Deny the MTD
3. Order amendment of the pleadings
The court cannot defer the resolution of the MTD for the
reason that the ground relied upon is not indubitable.
The court’s resolution on the MTD must clearly and
distinctly state the reasons therefor.
REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS
DISMISSED
If the motion is granted, the complaint is dismissed. Since
the dismissal is final and not interlocutory in character,
the plaintiff has several options:
1. Depending upon the ground for the dismissal of
the action, the plaintiff may REFILE the
complaint,
a. These are orders of dismissal which is not
tantamount to an adjudication on the merits
b. e.g when ground for dismissal is anchored on
improper venue.
2. He may APPEAL from the order of dismissal
where the ground relied upon is one which bars
refilling of complaint
a. The grounds which bar re-filing are:
(1) Res judicata
(2) Prescription
(3) Extinguishment of the obligation
(4) Violation of Statutes of Fraud
3. The plaintiff may also avail of a petition for
certiorari, alleging grave abuse of discretion.
[Riano]
REMEDIES OF THE DEFENDANT WHEN MOTION IS
DENIED
Appeal is NOT a remedy since denial of a motion to
dismiss is an interlocutory order. As a general rule,
defendant files his answer and then may appeal an
adverse judgment.
Remedies of Defendant:
 May be filed by any
May be filed only by the
1. The movant shall file his answer within the defending party against
defendant against the
balance of the period described in Rule 11 to whom a claim is asserted
complaint of the plaintiff
which he was entitled at the time of serving his in the action
motion, but not less than 5 days in any event. Should be filed within the May be filed for the
a. If pleading is ordered to be amended, he shall time for but prior to the dismissal of the case only
file his answer within the period prescribed filing of the answer of the after the plaintiff has
by Rule 11 counted from service of amended defending party to the completed the
pleading unless the court provides a longer pleading asserting the presentation of his
period claim against him evidence
If denied, defendant must
2. Another remedy is to file a certiorari, case under If denied, defendant may
file an answer, or else he
Rule 65 alleging grave abuse of discretion. present evidence
may be declared in default
[Riano] If granted, plaintiff appeals
If granted, plaintiff may
and the order of dismissal
appeal or if subsequent
is reversed, defendant
EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN case is not barred, he may
loses his right to present
GROUNDS re-file the case
evidence

General rule: The action/claim may be re-filed.

Exception: The action cannot be re-filed (although subject

to appeal) if it was dismissed on any of the following
grounds:
1. Res judicata;
2. Prescription;
3. Extinguishment of the claim/demand;
4. Unenforceability under the Statute of Frauds.
[Rule 16, Sec. 1 (f),(h),(i)]

WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES

If no motion to dismiss had been filed, any of the grounds

for dismissal may be pleaded as affirmative defenses and
a preliminary hearing may be had at court’s discretion.
(Rule 16, Sec. 6)

NOTE: The dismissal of the complaint under this section

shall be without prejudice to the prosecution in the same
or separate action of a counterclaim pleaded in the
answer.

If the defendant would not want to file a

counterclaim, he should not file a motion to dismiss
 Instead, he should allege the grounds of a
motion to dismiss as affirmative defenses in
his answer with a counterclaim
 A preliminary hearing may be had thereon,
and in the event the complaint is dismissed,
defendant can prosecute his counterclaim
(Herrera)

DISTINGUISHED FROM DEMURRER TO EVIDENCE

UNDER RULE 33

A motion to dismiss under this Rule differs from a motion

to dismiss under Rule 33 on demurrer to evidence:

MOTION TO DISMISS DEMURRER TO EVIDENCE

Grounded on preliminary Based on insufficiency of
objections evidence

52
 DISMISSAL OF ACTIONS
DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-
DISMISSAL RULE (Rule 17, Sec. 1)
Dismissal by plaintiff as a matter of right
Dismissal is effected not by motion but by mere notice of
dismissal which is a matter of right before the service of:
1. The answer; or
2. A motion for summary judgment
The dismissal as a matter of right ceases when an answer
or a motion for summary judgment is served on the
plaintiff and not when the answer or the motion is filed
with the court.
Dismissal NOT Automatic - It requires an order by the
court confirming the dismissal. Until confirmed, the
withdrawal does not take effect
Generally, Dismissal is Without Prejudice
General Rule: Dismissal is without prejudice
Exceptions:
1. Where the notice of dismissal so provides; or
2. Where the plaintiff has previously dismissed the
same case in a court of competent jurisdiction
(Two Dismissal Rule)
3. Even where the notice of dismissal does not
provide that it is with prejudice but it is premised
on the fact of payment by the defendant of the
claim involved (Serrano v. Cabrera)
the case and dismiss the case, then the
compulsory counterclaim, being ancillary to
the principal controversy must likewise be
dismissed (Metals Engineering Resources v.
CA)
- However, under this section, if a counterclaim
has been pleaded by a defendant PRIOR to the
service upon him of the plaintiff’s motion for
dismissal, the dismissal shall be limited to the
complaint.
Such dismissal shall be without prejudice to the right of
the defendant to either:
1. Prosecute his counterclaim in a separate action;
a. In this case, the court should render the
corresponding order granting and reserving
his right to prosecute his claim in a separate
complaint
2. OR to have the same resolved in the same action
a. In this case, defendant must manifest such
preference to the trial court within 15 days
from notice to him of plaintiff’s motion to
dismiss
NOTE: These alternative remedies of the
defendant are available to him regardless of
whether his counterclaim is compulsory or
permissive
DISMISSAL DUE TO FAULT OF PLAINTIFF (Rule 17, Sec.
3)

Two Dismissal Rule - when the same complaint had twice Distinction between Sec. 2 and Sec. 3 of Rule 17
been dismissed by the plaintiff without order of the court
by simply filing a notice of dismissal, the 2nd dismissal SECTION 2 SECTION 3
operates as an adjudication on the merits. Dismissal is not procured
Dismissal is at the by plaintiff though justified
instance of the plaintiff by causes imputable to
DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON him
EXISTING COUNTERCLAIM (Rule 17, Sec. 2) Dismissal is a matter of
procedure, without
Dismissal is a matter of
Under this section, dismissal of the complaint is subject to prejudice unless
evidence, an adjudication
the discretion of the court and upon such terms and otherwise stated in the
on the merits
conditions as may be just. court order or on motion
to dismiss
Generally, Dismissal is Without Prejudice Dismissal is without
General Rule: Dismissal is without prejudice prejudice to the right of
Exceptions: defendant to prosecute his
1. When otherwise stated in the motion to dismiss; counterclaim in a Dismissal is without
or separation action unless prejudice to the right of
2. When stated to be with prejudice in the order of within 15 days from defendant to prosecute his
the court notice of motion he counterclaim on the same
manifests his intention to or separate action
Effect on Counterclaim: have his counterclaim
resolved in the same
If counterclaim has been pleaded by defendant prior to action
service upon him of plaintiff’s motion for dismissal,
dismissal shall be limited to the complaint Dismissal under this Section
- Remember that if the civil case is dismissed, so
also is the counterclaim filed therein The case may be dismissed motu proprio or upon the
 It was held that if the court does not have defendant’s motion if, without justifiable cause, plaintiff
jurisdiction to entertain the main action of fails either:

53
1. To appear on the date of the presentation of his
evidence-in-chief on the complaint;
a. The plaintiff’s failure to appear at the trial
after he has presented his evidence and
rested his case does not warrant the
dismissal of the case on the ground of failure
to prosecute.
b. It is merely a waiver of his right to cross-
examine and to object to the admissibility of
evidence. [Jalover v. Ytoriaga (1977)]
c. Since plaintiff’s presence is now required
only during the presentation of his evidence
in chief, his absence during the presentation
of defendant or other parties’ evidence, or
even at rebuttal or subsequent stages, is not
a ground for dismissal.
2. To prosecute his action for an unreasonable
length of time (nolle prosequi);
a. The test for dismissal of a case due to failure
to prosecute is WON, under the
circumstances, the plaintiff is chargeable
with want of due diligence in failing to
proceed with reasonable promptitude.
[Calalang v. CA (1993)]
b. The dismissal of an action pursuant to this
rule rests upon the sound discretion of the
court ( Smith Bell and Co. v. American
President Lines Ltd.)
c. The action should never be dismissed on a
non-suit for want of prosecution when the
delay was caused by the parties looking
towards a settlement. (Goldloop Properties
Inc. v. CA)
3. To comply with the Rules or any court order.
a. The order must be valid
b. Failure to comply with order:
(1) Dismissal for failure to comply with
order to amend complaint to make
claims asserted more definite is ground
for dismissal (Santos v. General Wood
Craft)
(2) Failure to comply with an order to
include indispensable parties is ground
for dismissal (Aranico-Rubino v. Aquino)
(3) The failure to comply with order of new
judge to recall witness so he may
observe demeanor is sufficient ground
for dismissal (Castillo v. Torres)
c. Failure to comply with rules
(1) The failure of the parties to submit a
compromise agreement within period
granted to them by court is not a ground
for dismissal (Goldloop Properties Inc. v.
CA)
(2) Dismissal is improper where a 3rd party
complaint has been admitted and the 3rd
party defendant had not yet been
summoned (Sotto v. Valenzuela)
(3) A case may be dismissed for failure to
answer written interrogatories under
Rule 25 even without an order from the
54
court to answer. (Arellano v. CFI-
Sorsogon)
Effect of Dismissal:
General Rule: Dismissal of actions under Sec. 3 which do
not expressly state whether they are with or without
prejudice are held to be with prejudice on the merits
Exceptions:
1. The court declares otherwise, without prejudice
to the right of the defendant to prosecute his
counter-claim in the same or separate action
2. If court has not yet acquired jurisdiction over the
person of the defendant
Effect on Counterclaim:
Defendant is granted the choice to prosecute that
counterclaim in either the same or a separate action, just
like the grant of that remedy in Sec. 6, Rule 16
In this section (as well as in Sec. 6, Rule 16), defendant is
not required to manifest his preference within a 15-day
period as in Sec. 2
- The motions to dismiss in this section and in Sec.
6, Rule 16, are filed by defendant who perforce
has already deliberated upon the course of action
he intends to take on his counterclaim and which
he may even manifest right in his motion to
dismiss
- The dismissal in Sec. 2 is at the instance of
plaintiff, hence, defendant is granted the time and
duty to manifest preference within 15 days from
notice, after an opportunity to study the situation
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR
THIRD-PARTY COMPLAINT
Provisions of Rule 17 shall apply to the dismissal of any
counterclaim, cross-claim, or third-party complaint
Voluntary dismissal by claimant by notice as in Sec. 1,
shall be made:
1. Before a responsive pleading or motion for
summary judgment is served; or
2. If there is none, before introduction of evidence
at trial or hearing
Effect of Dismissals
1. Dismissal or continuance of an action operates to
annul orders, ruling, or judgments previously
made in the case
2. It also annuls all proceedings had in connection
therewith and renders all pleadings ineffective
3. Dismissal or non-suit leaves the situation as
though no suit had ever been brought
Where a counterclaim is made the subject of a separate
suit, it may be abated upon a plea of auter action
pendentia and/or dismissal on the ground of res judicata.
Res judicata, however, is not applicable since the court
held that it did not acquire jurisdiction due to non-
payment of docket fees.
Dismissal on the ground of LOJ does not constitute res
judicata, there being no consideration and adjudication of
the case on the merits. Neither is there litis pendentia.
[Meliton v. CA (1992)]

55
 PRE-TRIAL
CONCEPT OF PRE-TRIAL
Pre-Trial is a mandatory conference and personal
confrontation before the judge between the parties and
their respective counsel, called by the court after the
joinder of issues in a case or after the last pleading has
been filed and before trial, for the purpose of settling the
litigation expeditiously or simplifying the issues without
sacrificing the necessary demands of justice.
It is a procedural device by which the court is called upon,
after the filing of the last pleading, to compel the parties
and their lawyers to appear before it, and negotiate an
amicable settlement or otherwise make a formal
settlement and embody in a single document the issues of
fact and law involved in the action, and such other
matters as may aid in the prompt disposition in the case,
such as:
1. Number of witnesses
2. Tenor or character of their testimonies
3. Documentary evidence; nature and purpose of
each
4. Number of trial dates
NATURE AND PURPOSE
Purpose of pre-trial is to consider: (Rule 18, Sec. 2)
1. Possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
2. Simplification of the issues;
3. Necessity/desirability of amendments to the
pleadings;
4. Possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
5. Limitation of the number of witnesses;
6. Advisability of a preliminary reference of issues
to a commissioner;
7. Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist;
8. Advisability/necessity of suspending the
proceedings; and
9. Other matters that may aid in the prompt
disposition of the action.
Pre-trial is Mandatory
- Vital objective: the simplification, abbreviation,
and expedition of the trial, if not indeed its
dispensation
- Mandatory nature is addressed to both court and
parties:
 Court must set the case for pre-trial and
notify the parties as well as counsel to
appear
 Parties with their counsel are obliged to obey
the order of the court to that effect
56
Primary Objective
Pre-trial is primarily intended to make certain that all
issues necessary to the disposition of a case are properly
raised.
Thus, to obviate the element of surprise, parties are
expected to disclose at a pre-trial conference (PTC) all
issues of law and fact which they intend to raise at the
trial, except such as may involve privileged or impeaching
matters. The determination of issues at a pre-trial
conference bars the consideration of other questions on
appeal. [Caltex v. CA (1992)]
NOTICE OF PRE-TRIAL
When pre-trial conducted - After the last pleading has
been served and filed, it shall be the duty of the plaintiff to
promptly move ex parte that the case be set for pre-trial.
(Sec. 1, Rule 18)
1. Specifically, the motion is to be filed within 5
days after the last pleading joining the issues has
been served and filed (Admin Circ. No. 3-99, Jan
15, 1999)
2. Within 5 days from date of filing of the reply,
plaintiff must promptly move ex-parte that the
case be set for pre-trial conference. If the plaintiff
fails to file said motion within the given period,
the branch clerk shall issue a Notice of Pre-Trial
(AM No. 03-109-SC, July 13, 2004)
NOTE: Note: The “Last Pleading” need not be literally
construed as the actual filing of the last pleading. For
purpose of pre-trial, the expiration of the period for filing
the last pleading is sufficient (Sarmiento v. Juan)
Notice of Pre-trial: The notice shall be served on:
1. Counsel
2. Party, only if he has no counsel (Sec. 3, Rule 18)
The sufficiency of the written notice of pre-trial is
irrelevant where evidence shows that counsel and the
parties actually knew of the pre-trial (Bembo v. CA)
APPEARANCE OF PARTIES; EFFECT OF FAILURE TO
APPEAR
Duty to Appear: It is the duty of the parties and their
counsel to appear at the pre-trial. (Rule 18, Sec. 4)
- NOTE: BOTH parties AND their counsel
When non-appearance is excused: A party’s non-
appearance may be excused only if either:
1. Valid cause is shown for it;
2. A representative appears in his behalf, fully
authorized in writing:
a. To enter into an amicable settlement;
b. To submit to alternative modes of dispute
resolution;
c. To enter into stipulations/admissions of facts
and of documents.
 NOTE: The written special authority must be
in the form of an SPA (Sec. 23, Rule 38). If the
party is a corporation, the SPA must be
supported by a board resolution. PRE-TRIAL BRIEF; EFFECT OF FAILURE TO FILE

Effect of Failure to Appear; unexcused non-appearance: Rule 18, Sec. 6 makes it the MANDATORY duty of the
(Rule 18, Sec. 5) parties to seasonably file their pre-trial briefs under the
conditions and with the sanctions provided therein.
Order of Non-suit is issued to the party who failed to
appear at pre-trial. When to File Pre-Trial Brief: Parties shall file and serve
their respective pre-trial briefs, ensuring receipt by
Who fails to adverse party at least 3 days before the date of the pre-
Effect
appear trial.
Cause for dismissal of the action which
Plaintiff will be with prejudice, unless otherwise Contents of a Pre-Trial Brief
ordered by the court 1. Statement of their willingness to enter into
Cause to allow plaintiff to present amicable settlement or alternative modes of
Defendant evidence ex parte, and court to render dispute resolution, indicating the desired terms
judgment on the basis thereof thereof;
2. Summary of admitted facts and proposed
NOTE: The non-appearance of defendant in pre-trial is stipulation of facts;
not a ground to declare him in default. Thus, we 3. Issues to be tried/resolved;
distinguish: 4. Documents/exhibits to be presented, stating the
purpose thereof;
5. Manifestation of their having availed or their
intention to avail themselves of discovery
Default by defendant Failure to appear by procedures or referral to commissioners;
(Rule 9, Sec. 3) defendant (Rule 18, Sec. 5) 6. Number and names of the witnesses, and the
substance of their respective testimonies. [AM
Upon motion and notice to No. 03-1-09-SC]
Not required
defendant.
Requires proof of failure to Failure to File Pre-trial Brief: Failure to file the pre-trial
Not required brief shall have the same effect as failure to appear at the
answer
Court to allow plaintiff to pre-trial.
Court to render judgment,
present evidence ex parte,
unless it requires Remedy of defendant is to file a motion for
then the court shall render
submission of evidence reconsideration, showing that his failure to file a trial
judgment
Judgment by Default Judgment Ex Parte brief was due to fraud, accident, mistake, or excusable
Relief awarded must be the Relief awarded may be of negligence
same in nature and amount different nature and
as prayed for in the amount from the relief
complaint prayed for PROCEEDINGS AFTER TERMINATION OF PRE-TRIAL

When we say that a defendant is in “default” it speaks of Record of Pre-Trial: The pre-trial proceedings shall be
his failure to file responsive pleading and not his non- recorded. Upon termination of such proceedings, the
appearance at pre-trial. court shall issue the pre-trial order.

Remedy of Party who has been non-suited: Contents of Pre-Trial Order:

1. For a non-suited plaintiff:
a. Motion to set aside the order of non-suit
b. Affidavit of merit is not necessary in a simple
motion for reconsideration of the order of
non-suit EXCEPT as to show the cause of the
failure to appear at the pre-trial (Jonathan
Landoil International Inc. v. Mangudadatu)
1. Matters taken up in the conference;
2. Action taken thereon;
3. Amendments allowed on the pleadings;
4. Agreements/admissions made by the parties as
to any matters considered;
5. Should the action proceed to trial, the explicit
definition and limit of the issues to be tried.

2. For a non-suited defendant:
a. File a motion for reconsideration without
need for affidavits of merits regarding the
fraud, accident, mistake, or excusable
negligence (Lucero v. Dacayo)
57
Effect of Pre-Trial Order: The contents of the order shall
control the subsequent course of the action; UNLESS:
1. Modified before trial to prevent manifest
injustice (Rule 18, Sec. 7)
2. Issues impliedly included therein or may be
inferable therefrom by necessary implication
(Velasco v. Apostol)
 3. Amendment to conform to evidence (Rule 10, “Minutes of Preliminary
Sec. 5) Conference” to be
signed by both parties
and/or counsel.
On Compromise: (Note: either party or
- Upon manifestation of the parties of their his counsel is allowed
willingness to discuss a compromise, the TC to sign)
should order the suspension of the proceedings The sanctions for non- Sanctions are imposed
to allow them reasonable time to discuss and appearance are upon the counsel for
conclude an amicable settlement. imposed upon the the accused or the
- If despite all efforts exerted by the TC and the plaintiff and the prosecutor [Rule 118,
parties the settlement conference still fails, then defendant [Rule 18, Sec. Sec. 3]
the action should have continued as if no 4]
suspension had taken place. [Goldloop Properties A pre-trial brief is A pre-trial brief is not
v. CA (1992)] specifically required to specifically required.
- NOTE: AM 03-1-09-SC - No termination of pre- be submitted [Rule 18,
trial for failure to settle Sec. 6]

DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE ALTERNATIVE DISPUTE RESOLUTION (ADR)

AND PRE-TRIAL IN CRIMINAL CASE Special Rules of Court on ADR (AM No. 07-11-08-SC)

The parties may be submitted to ADR during pre-trial. If

Civil Case Criminal Case
Set when the plaintiff Ordered by the court
moves ex parte to set and no motion to set
the case for pre-trial the case for pre-trial is
[Rule 18, Sec. 1] required from either
the prosecution or the
defense [Rule 118, Sec.
1]
Made after the pleading Ordered by the court
has been served and after arraignment and
filed [Rule 18, Sec. 1] within 30 days from the
sate the court acquired
jurisdiction over the
person of the accused
[Rule 118, Sec. 1]
Considered the Does not include the
possibility of an considering of the
amicable settlement as possibility of amicable
an important objective settlement of one’s
[Rule 118, Sec. 2(a)] criminal liability as one
of its purposes [Rule
118, Sec. 1]
The arrangements and (Stricter procedure)
admissions in the pre- All agreements or
trial are not required to admissions made or
be signed by both entered during the pre-
parties and their trial conference shall be
counsels. Under the reduced in writing and
Rules, they are instead signed by both the
to be contained in the accused and counsel;
record of pre-trial and otherwise, they cannot
pre-trial order [Rule 18, be used against the
Sec. 7] accused. [Rule 118, Sec.
2]
[AM No. 03-1-09] -
requires the
proceedings during the
preliminary conference
to be recorded in the
ADR fails, judge will schedule the continuance of the pre-
trial conference
The Alternative Dispute Resolution System
Means any process or procedure used to resolve a dispute
or controversy, other than by adjudication of a presiding
judge of a court or an officer of a government agency, as
defined in this Act, in which a neutral third party
participates to assist in the resolution of issue [RA 9285,
Sec. 3]
Policy Behind the ADR: To actively promote party
autonomy in the resolution of disputes or the freedom of
the party to make their own arrangements to resolve
their disputes [RA 9285, Sec. 2]
In Relation to Pre-Trial:
1. At the start of the pre-trial conference, the judge
shall immediately refer the parties and/or their
counsel if authorized by their clients to the PMC
mediation unit for purposes of mediation if
available.[AM No. 03-1-09-SC]
2. The pre-trial briefs of parties must include the
parties’ statement of their willingness to enter
into an amicable settlement indicating the
desired terms thereof or to submit the case to
any of the alternative modes of dispute
resolution [AM No. 03-1-09-SC]
Exception to the Application of RA 9285:
1. labor disputes covered by the Labor Code;
2. the civil status of persons;
3. validity of a marriage;
4. any ground for legal separation;
5. the jurisdiction of courts;
6. future legitime;
7. criminal liability; and
8. those which by law cannot be compromised.

58
Modes of Alternative Dispute Resolutions:
1. Arbitration (RA 9285, Sec. 1)
a. A voluntary dispute resolution process in
which one or more arbitrators, appointed in
accordance with the agreement of the
parties, or rules promulgated pursuant to
this Act, resolve a dispute by rendering an
award\
b. Different Kinds:
(1) Domestic Arbitration – an arbritration
that is not international; governed by RA
876 (Arbitration Law) [RA 9285, Sec. 32]
(2) International Arbitration - An arbitration
is international if:
(a) the parties to an arbitration
agreement have, at the time of the
conclusion of that agreement, their
places of business in different States;
or
(b) one of the following places is
situated outside the State in which
the parties have their places of
business [Article 3, Model Law on
International Commercial
Arbritration]
2. Mediation
a. a voluntary process in which a mediator,
selected by the disputing parties, facilitates
communication and negotiation, and assist
the parties in reaching a voluntary
agreement regarding a dispute
b. includes conciliation
3. Mini-Trial
a. A structured dispute resolution method in
which the merits of a case are argued before
a panel comprising senior decision makers
with or without the presence of a neutral
third person after which the parties seek a
negotiated settlement
4. Early Neutral Evaluation
a. An ADR process wherein parties and their
lawyers are brought together early in a pre-
trial phase to present summaries of their
cases and receive a nonbinding assessment
by an experienced, neutral person, with
expertise in the subject in the substance of
the dispute
5. Combination of ADR
a. Example: Med-Arb - step dispute resolution
process involving both mediation and
arbitration
Special Rules of Court on ADR (AM No. 07-11-08-SC)
The Special ADR Rules shall apply to and govern the
following cases (Rule 1.1)
1. Relief on the issue of Existence, Validity, or
Enforceability of the Arbitration Agreement;
2. Referral ADR
59
3. Interim Measures of Protection;
4. Appointment of Arbitrator;
5. Challenge to Appointment of Arbitrator;
6. Termination of Mandate of Arbitrator;
7. Assistance in Taking Evidence;
8. Confirmation, Correction or Vacation of Award in
Domestic Arbitration;
9. Recognition and Enforcement or Setting Aside of
an Award in International Commercial
Arbitration;
10. Recognition and Enforcement of a Foreign
Arbitral Award;
11. Confidentiality/Protective Orders; and
12. Deposit and Enforcement of Mediated Settlement
Agreements.
Service and Filing of Petition – The petitioner shall serve,
either by personal service or courier, a copy of the
petition upon the respondent before the filing thereof.
Proof of service shall be attached to the petition filed in
court.
Notice – served once court finds petition sufficient in form
and substance
1. Notice is sent to parties directing them to appear
at a particular time and date for hearing
2. Hearing shall not be set no later than 5 days from
lapse of period for filing opposition or comment
3. Notice to respondent shall contain a statement
allowing him to file a comment or opposition to
petition within 15 days from receipt of notice
4. For Referral to ADR or Confidentiality/Protection
Orders:
a. Follow Rule 15 Rules of Court
Summary Hearing - In all cases, as far as practicable, the
summary hearing shall be conducted in one (1) day and
only for purposes of clarifying facts.
Prohibited Submissions (Rule 1.6)
1. Motion to dismiss;
2. Motion for bill of particulars;
3. Motion for new trial or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension, except in cases where an
ex-parte temporary order of protection has been
issued;
6. Rejoinder to reply;
7. Motion to declare a party in default; and
8. Any other pleading specifically disallowed under
any provision of the Special ADR Rules.
No summons (Rule 1.9 - In cases covered by the Special
ADR Rules, a court acquires authority to act on the
petition or motion upon proof of jurisdictional facts, i.e.,
that the respondent was furnished a copy of the petition
and the notice of hearing.
 PRE – TRIAL

NO SETTLEMENT FAILURE TO APPEAR AMICABLE

SETTLEMENT

Agreements made by If plaintiff is absent If defendant is

parties; Amendments when so required to absent, court may
to pleading; Schedule attend, court may hear evidence of
of Trial dismiss the case plaintiff ex parte

If evidence is
TRIAL insufficient to prove
plaintiff’s cause of
action or defendant’s
counterclaim, court
rules in favor of
either one or
dismisses the case
COURT RENDERS
DECISION

60
 INTERVENTION
DEFINITION
A legal remedy whereby a person is permitted to become
a party in a case, by either:
1. Joining the plaintiff;
2. Joining the defendant;
3. Asserting his right against both plaintiff and
defendant, considering that either:
a. He has a legal interest in the subject matter
of the action;
b. He has legal interest in the success of either
of the parties
c. He has legal interest against both of the
parties
d. He is going to be adversely affected by the
disposition of the property in the custody of
the court (Rule 19, Sec. 1)
Intervention is never an independent action, but is
ancillary and supplemental to the existing litigation. Its
purpose is to afford one not an original party, yet having a
certain right/interest in the pending case, the opportunity
to appear and be joined so he could assert or protect such
right/interest. (Carino v. Ofilada, 1993)
REQUISITES FOR INTERVENTION
The requisites of intervention are:
1. Legal interest:
a. In the matter in controversy; or
b. In the success of either of the parties; or
c. Against both; or
d. So situated as to be adversely affected by a
distribution or other disposition of property
in the custody of the court or of an office
thereof;
2. Intervention will not unduly delay or prejudice
the adjudication of rights of original parties
3. Intervenor’s rights may not be fully protected in a
separate proceeding (Lorenza Ortega v. CA, 1998)
MEANING OF LEGAL INTEREST
Interest must be of a direct and immediate character so
that the intervenor will either gain or lose by the direct
legal operation of the judgment. The interest must be
actual and material, a concern which is more than mere
curiosity, or academic or sentimental desire; it must not
be indirect and contingent, indirect and remote,
conjectural, consequential or collateral. [Virra Mall
Tenants v. Virra Mall (2011)]
Notwithstanding the presence of a legal interest,
permission to intervene is subject to the sound discretion
of the court, the exercise of which is limited by
considering "whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the
original parties and whether or not the intervenor’s rights
61
may be fully protected in a separate proceeding. [Virra
Mall Tenants v. Virra Mall (2011)]
TIME TO INTERVENE
How Intervention is Done
1. By a motion to intervene
2. Attaching the pleading-in-intervention to the
motion
3. Copies served on the original parties (Rule 19,
Sec. 2)
When should it be filed – The motion to intervene may be
filed at ANY TIME before rendition of judgment by the
court
General Rule: Allowance of intervention is discretionary
with the court
Exception: When the intervenor is an indispensable party
Pleadings-in-Intervention:
1. Complaint-in-intervention – If intervenor asserts
a claim against either or all of the original parties.
2. Answer-in-intervention – If intervenor unites
with the defending party in resisting a claim
against the latter.
3. Answer to complaint-in-intervention [Rule 19,
Sec. 4] - It must be filed within 15 days from
notice of the order admitting the complaint-in-
intervention, unless a different period is fixed by
the court.
REMEDY FOR DENIAL OF MOTION TO INTERVENE
1. If intervention is denied
a. Aggrieved party may appeal
b. Mandamus will not lie except in case of grave
abuse of discretion
2. If intervention is granted
a. A grant of a motion to intervene is
interlocutory
b. Hence, anyone who objects can file a petition
for certiorari for improper granting of
intervention
 SUBPOENA
A process directed to a person requiring him to bring with
DEFINITION him books, documents, or other things under his control

Subpoena is a process directed to a person requiring him: The SDT is, in all respects, like the ordinary SAT with the
1. To attend and to testify at the hearing or the trial exception that it concludes with an injunction that the
of an action, or at any investigation conducted by witness shall bring with him and produce at the
competent authority, or for the taking of his examination the books, documents, or things described in
deposition; or the subpoena
2. To bring with him any books, documents, or
other things under his control (Rule 21, Sec. 1) Before SDT may issue, the court must first be satisfied
that the following requisites are present:
SUBPOENA SUMMONS 1. Test of RELEVANCY: The books, documents, or
An order to appear and other things requested must appear prima facie
An order to answer relevant to the issue subject of the controversy
testify or to produce
complaint 2. Test of DEFINITENESS: Such books must be
books and documents
May be served to a non- reasonably described by the parties to be readily
Served on the defendant identified (test of definiteness)
party
Needs tender of
kilometrage, attendance Does not need tender of
fee and reasonable cost of kilometrage and other fees
production fee SERVICE OF SUBPOENA (Rule 21, Sec. 6)

Who May Issue: (Rule 21, Sec. 2)
1. Court before whom the witness is required to
attend
2. Court of the place where the deposition is to be
taken
3. Officer or body authorized by law to do so in
connection with investigations conducted by said
officer or body; or
4. Any justice of the SC or of the CA, in any case or
investigation pending within the Philippines
NOTE: Sec. 38(2), BP 129 – All processes issued by the
MTC and MCTC in cases falling within their jurisdiction
may be served anywhere in the Philippines without the
necessity of certification by the judge of the RTC
Form and Contents: (Rule 21, Sec. 3)
1. Shall state the name of the court and the title of
the action or investigation
2. Shall be directed to the person whose attendance
is required
3. In case of a subpoena duces tecum, shall contain a
reasonable description of the books, documents,
or things demanded which must appear to the
court to be prima facie relevant
Kinds:
1. Subpoena duces tecum (SDT)
2. Subpoena ad testificandum (SAT)
SUBPOENA AD TESTIFICANDUM
A process directed to a person requiring him to attend
and to testify at the hearing or the trial of an action, or at
any investigation conducted by competent authority or
for the taking of his deposition
How Made: Same manner as PERSONAL or SUBSTITUTED
service of summons
Formalities:
1. The original shall be exhibited
2. A copy is delivered to the person on whom it is
served
3. Fees and costs:
a. Tender to the person on whom it is served
the fees for one day’s attendance and the
kilometrage allowed by the Rules
(1) EXCEPT: Tender need not be made if
issued by or on behalf of the Republic or
an officer of agency thereof
b. If SDT, reasonable cost of producing the
books, documents, or things demanded shall
also be tendered
Service must be made so as to allow the witness
reasonable time for preparation and travel to the place of
attendance
COMPELLING ATTENDANCE OF WITNESSES;
CONTEMPT
General Rule:
1. The court which issued the subpoena may issue a
warrant for the arrest of the witness and make
him pay the cost of such warrant and seizure, if
the court should determine that his disobedience
was willful and without just cause (Sec. 8)
2. The refusal to obey a subpoena without adequate
cause shall be deemed contempt of the court
issuing it (Sec. 9)

SUBPOENA DUCES TECUM

62
Exception: Provisions regarding the compelling of
attendance (Sec. 8) and contempt (Sec. 9) do not apply
where:
1. Witness resides more than 100km from his
residence to the place where he is to testify by
the ordinary course of travel (Viatory Right) and
a. NOTE: This refers to civil cases only, not
criminal

2. Permission of the court in which the detention

prisoner’s case is pending was not obtained

QUASHING OF SUBPOENA (Rule 21, Sec. 4)

How Done: By motion promptly made

Period to File: A motion to quash may be made at or

before the time specified in the subpoena

Grounds:
1. For quashal of subpoena duces tecum:
a. It is unreasonable and oppressive
b. The articles sought to be produced do not
appear prima facie to be relevant to the
issues; or
c. The person asking for the subpoena does not
advance the cost for the production of the
articles desired
d. Failure to tender witness fees and
kilometrage allowed by the Rules

2. For quashal of subpoena ad testificandum

a. That the witness is not bound thereby, or
b. That the witness fees and kilometrage
allowed by the Rules were not tendered
when subpoena was served

63
 MODES OF DISCOVERY 2. Without leave of court
a. AFTER answer has been served

DISCOVERY – a device employed by a party to obtain
information about relevant matters on the case from the
adverse party in the preparation for trial
Purpose – to enable the parties to obtain the fullest
possible knowledge of the issues and evidence long
before the trial to prevent such trial from being carried on
in the dark
Depositions before an answer should be granted only
under special circumstances where the conditions
point to the necessity of presenting a strong case for
allowance of the motion.
There must be some “necessity” or “good reason” for
taking the testimony immediately or that it would be
prejudicial to the party seeking the order to be
compelled to await joinder of issues.

Modes: Specific Uses of Depositions Pending Action: the use of

1. Depositions pending actions – Rule 23
2. Depositions before action or pending appeal –
Rule 24
3. Interrogatories to parties – Rule 25
4. Admission by adverse party – Rule 26
5. Production or inspection of documents or thing –
Rule 27
6. Physical and mental examination of persons –
Rule 28
depositions depends on whether deponent is a party or
not (Rule 23, Sec. 4)
1. The depositions may be used for contradicting or
impeaching the testimony of deponent not as
proof of specific facts
a. If deponent does not testify and is not a
party, deposition cannot be used for this
purpose

2. Deposition of an ADVERSE party may be used for

DEPOSITIONS PENDING ACTION (Rule 23) any purpose
a. It may be used as an admission
Meaning of Deposition - Deposition is chiefly a mode of b. A deposition cannot, however, be used in the
discovery, the primary function of which is to supplement trial of a case against a defendant who was
the pleadings for the purpose of disclosing the real points not a party to the action when the deposition
of dispute between the parties and affording an adequate was taken
factual basis during the preparation for trial.
3. Deposition of a witness or party may be used for
General Uses of Deposition: any purpose under the following circumstances:
1. Intended as a means to compel disclosure of facts a. Witness is dead – there must be proof of
resting in the knowledge of a party or other death or presumption of death and that
person, which are relevant in a suit or proceeding deposition was legally taken
2. Dual functions:
a. A method of discovery b. Non-residence of deponent – where it
b. A method of presenting testimony in lieu of appears that the absence of deponent was
oral open court testimony procured by the party offering the deposition
of the same cannot be received in evidence
Scope of Examination
1. Matter which is relevant to the subject of the c. Disability of a witness – age, sickness,
pending action made by the pleadings or likely to infirmity, or imprisonment. The certificate of
arise under the pleadings the attending physician that the witness is in
2. Matter that is not privileged a precarious condition is sufficient
3. As well as:
a. The existence, description, nature, custody, d. Inability to procure attendance of witness by
condition and location of any books, subpoena
documents, or other tangible things; and
b. The identity and location of persons having DEPONENT USE
knowledge of relevant facts (Rule 23, Sec. 2) By any party for
contradicting or
Any person
NOTE: Under such limitations as the court may impeaching the testimony
order under Sec. 16 and 18 of deponent as witness
A party or anyone who at
When Depositions Pending Action Taken: (Rule 23, Sec. 1) the time of the deposition
1. With leave of court: was an officer, director, or
a. AFTER jurisdiction has been obtained over managing agent, of a By an adverse party for
any defendant or over the property which is public or private any purpose
the subject of the action, but corporation or
b. BEFORE an answer has been served partnership, or
association which is a

64
 party
By any party for any
Witness, whether or not a
purpose if the court finds
party
the 5 instances occurring
NOTE: Depositions can be used as evidence by a party
(“for any purpose”) under the specific conditions in Sec. 4
REMEMBER: Generally, a deposition is not generally
supposed to be a substitute for the actual testimony in
open court of a party or witness. If the witness is available
to testify, he should be presented in court to testify. If
available to testify, a party’s or witness’ deposition is
inadmissible in evidence for being hearsay. (Dasmarinas
Garments Inc. v. Reyes, 1993). Exceptions to this rule are
those found in Sec. 4.
Persons before whom depositions may be taken (Rule 23,
Sec. 10 and 11)
1. Within the Philippines:
a. Judge
b. Notary Public, or
c. Any person authorized to administer oaths,
as stipulated by the parties in writing
2. Outside the Philippines
a. On notice before a secretary of embassy or
legation, consul general, consul, vice-consul,
or consular agent of the Philippines
b. Before such person or officer as may be
appointed by commission or under letter
rogatory or
c. Any person authorized to administer oaths
as stipulated by parties in writing
Disqualification by interest: No deposition shall be taken
before a person who is: (Rule 23, Sec. 13)
1. A relative within the 6th degree of affinity or
consanguinity
2. An employee or counsel of any of the parties
3. A relative within the same degree or employee of
such counsel
4. Financially interested in the action
Procedure in Taking Depositions:
1. A party desiring to take the deposition of any
person upon oral examination shall give
reasonable notice in writing to every party to the
action stating the time and place for taking the
deposition and the name and address of each
person to be examined. [Rule 23, Sec. 15]
2. After the notice is served, the court may make
any order for the protection of the parties and
the deponent. [Rule 23, Sec. 16]
3. The attendance of the witnesses may be
compelled by the use of subpoenas. [Rule 23, Sec.
1]
4. The deponent may be examined or cross
examined following the procedures for witnesses
in a trial. He may be asked questions on direct,
cross, re-direct or re-cross. He has the same
65
rights as a witness and may be impeached like a
court witness because Sections 3 to 18 of Rule
132 apply to deponent. [Rule 23, Sec. 3]
5. The officer before whom the deposition is being
taken has no authority to rule on objections
interposed during the course of the deposition
although any objections shall be noted by him
upon the deposition. Any evidence that is
objected to shall still be taken but subject to the
objection. [Rule 23, Sec. 17]
When may objections to admissibility be made (Rule 23,
Sec. 6) - Objection may be made at the TRIAL or HEARING
to receiving in evidence any deposition or part thereof for
any reason which would require the exclusion of the
evidence if the witness were then present and testifying
Effect of Taking and Using Depositions:
1. General Rule: A party shall not be deemed to
make a person his own witness for any purpose
by taking his deposition because depositions are
taken for discovery and not for use as evidence.
(Rule 23, Sec. 7)
2. Exception: If a party offers the deposition in
evidence, then he is deemed to have made the
deponent his witness (Sec. 8)
3. Exceptions to the Exception:
a. The deposition is that of an opposing party,
OR
b. The deposition is used to impeach or
contradict opponent. (Sec. 8)
When may taking of deposition be terminated or its scope
limited (Rule 23, Sec. 18)
1. How done:
a. A motion or petition for termination or limit
examination is filed by any party or of the
deponent
b. Filed in the court where the action is pending
OR the RTC of the place where deposition is
being taken
2. When done: At any time during the taking of
deposition
3. Grounds: That the examination is being
conducted:
a. In bad faith, or
b. In such manner as unreasonably to annoy,
embarrass or oppress the deponent or party
Effect of Errors and Irregularities in Depositions (Rule 23,
Sec. 29)
Error and
Effect
Irregularities
As to notice for Waived
taking
Unless written objection is promptly
depositions
 served upon party giving notice DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
Waived (Rule 24)
Objection to
Unless made:
taking A deposition before action and a deposition pending
1. Before taking of deposition
deposition appeal are referred to as perpetuation of testimony
begins or
because of (perpetuam rei memoriam) because their objective is to
2. As soon thereafter as
disqualification perpetuate the testimony of a witness for future use.
disqualification becomes
of officer before
known or could be
whom it is to be Purpose: To perpetuate the testimony of witnesses for
discovered with reasonable
taken probable use in the event of further proceedings in said
diligence
Objection to the Not waived by failure to make them court.
competency of a before or during the taking of
witness or deposition Who may avail: Any person:
competency or 1. Who wants to perpetuate his own testimony; or
Unless the ground of the objection is 2. Who wants to perpetuate the testimony of
relevancy or
one which might have been obviated another person
materiality of
or removed if presented at that time
testimony
In the manner of taking, in the form Procedure for Deposition Pending Action:
of questions or answers, in the oath
Occurring at or affirmation, or in conduct of 1. File a verified petition in the court of the place of
oral parties and errors of any kind which the residence of any expected adverse party
examination might be obviated or removed if a. Petition shall be entitled in the name of
and other promptly prosecuted are waived petitioner
particulars Unless reasonable objection thereto b. It shall show:
is made at the time of taking the (1) That the petitioner expects to be a party
deposition to an action in a court of the Philippines
Waived but is presently unable to bring it or
Objections to cause it to be brought;
Unless served in writing upon the
the form of (2) The subject matter of the expected action
party propounding them within the
written and his interest therein;
time allowed for serving succeeding
interrogatories (3) The facts which he desires to establish
cross or other interrogatories and
under Sec. 25 by the proposed testimony and his
within 3 days after service of last
and 26 reasons for desiring to perpetuate it;
interrogatories authorized
In the manner Waived (4) The names or a description of the
in which persons he expects will be adverse
Unless motion to suppress parties and their addresses so far as
testimony is
depositions or some part thereof is known; and
transcribed or
made with reasonable promptness (5) The names and addresses of the persons
in the
after such defect is ascertained, or to be examined and the substance of the
preparation
with due diligence might have been testimony which he expects to elicit from
under Sec. 17,
ascertained each, and shall ask for an order
19, 20, and 26
authorizing the petitioner to take the
depositions of the persons to be
Orders that may be issued by the court regarding
deposition taking examined named in the petition for the
purpose of perpetuating their testimony.
1. That the deposition shall not be taken;
2. That it may be taken at some designated place
other than that stated in the notice; 2. Notice and service to each person named in the
petition as an expected adverse party, together
3. That it may be taken only on written
with a copy of the petition, stating that the
interrogatories;
4. That certain matters shall not be inquired into’ petitioner will apply to the court, at a time and
place named therein, for the order described in
5. That the scope of the examination shall be held
the petition.
with no one present except the parties to the
action and their officers or counsel;
6. That after being sealed, the deposition shall be 3. At least twenty (20) days before the date of the
hearing, the court shall cause notice thereof to be
opened only by order of the court;
served on the parties and prospective deponents
7. That secret processes, developments, or research
need not be disclosed; in the manner provided for service of summons.
8. That the parties shall simultaneously file
4. Order and Examination: If the court is satisfied
specified documents or information enclosed in
sealed envelopes to be opened as directed by the that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall make
court;
an order designating or describing the persons
whose deposition may be taken and specifying
the subject matter of the examination and
66
 whether the depositions shall be taken upon oral
examination or written interrogatories.
Use of Deposition: If a deposition to perpetuate testimony
is taken under this Rule, or if, although not so taken, it
would be admissible in evidence, it may be used in any
action involving the same subject matter subsequently
brought in accordance with the provisions of sections 4
and 5 of Rule 23. (Rule 24, Sec. 6)
Procedure for Deposition Pending Appeal:
1. During the pendency of an appeal, the court in
which the judgment was rendered may allow the
taking of depositions of witnesses to perpetuate
their testimony in the event of further
proceedings in the said court.
2. The party who desires to perpetuate the
testimony may make a motion in the said court
for leave to take the depositions, upon the same
notice and service thereof as if the action was
pending therein. The motion shall state:
a. The names and addresses of the persons to
be examined and the substance of the
testimony which he expects to elicit from
each, and
b. The reason for perpetuating their testimony.
3. Order allowing the deposition: If the court finds
that the perpetuation of the testimony is proper
to avoid a failure or delay of justice, it may make
an order allowing the deposition to be taken.
67
WRITTEN INTERROGATORIES TO ADVERSE PARTIES
(Rule 25)
Purpose - This mode of discovery is availed of by the party
to the action for the purpose of eliciting material and
relevant facts from any of the adverse party. [Rule 25, Sec.
1]
Service of Interrogatories to Parties – Any party desiring to
elicit material and relevant facts from any adverse party
shall file and serve upon the adverse party written
interrogatories to be answered by the party served.
NOTE: Written interrogatories must not only be
served but also filed.
Manner of Service:
1. Without leave of court – After answer has
been served; and for the first set of
interrogatories
2. With leave of court – before the answer has
been served; and for subsequent sets of
interrogatories
NOTE: No party may, without leave of court,
serve more than one set of interrogatories to
be answered by the same party. (Rule 25,
Sec. 4)
Answer to Interrogatories: (Rule 25, Sec. 2)
1. Written interrogatories and the answers thereto
must both be filed and served
a. Hence, the answers may constitute as judicial
admissions (Sec. 4, Rule 129)
2. Form of answer:
a. It must be answered fully in writing
b. And signed and sworn to by the person
making them
3. Service and Filing
a. Party upon whom interrogatories were
served shall file and serve a copy of the
answers on the party submitting
interrogatories
b. Time period:
(1) Within 15 days after service thereof
(2) UNLESS court extends or shortens the
time on motion and for good cause
shown
Objections to Interrogatories: (Rule 25, Sec. 3)
Objections may be presented to the court within 10 days
after service thereof with notice as in case of a motion.
Effect: Answers shall be deferred until objections are
resolved
Grounds:
1. They require the statements of conclusions of law
or answers to hypothetical questions or opinion,
or mere hearsay, or matters not within the
personal knowledge of the interrogated party
 2. Frivolous interrogatories need not be answered
(Herrera)
Scope and Use of Interrogatories (Rule 25, Sec. 5)
Interrogatories may relate to any matters than can be
inquired into under Sec. 2, Rule 23
Answers may be used for the same purposes provided in
Sec. 4, Rule 23
Effect of Failure to Serve Written Interrogatories (Rule 25,
Sec. 6)
A party not served with written interrogatories may not
be compelled by adverse party to:
1. Give testimony in open court; or
2. Give deposition pending appeal
UNLESS thereafter allowed by the court for good cause
shown and to prevent a failure of justice
NOTE: This should not be confused with the
provisions of Rule 29. Sec. 6 Rule 25 as well as a
similar provision in Rule 26 are directed to a
party who fails or refuses to resort to discovery
procedures therein. Rule 29 provides for
sanctions or other consequences upon a party
who refuses or fails to comply with discovery
procedures duly availed of by his opponent
Written Interrogatories v. Interrogatories to Parties
REQUEST FOR ADMISSION (Rule 26)
Rule 26, as a mode of discovery, contemplates
interrogatories seeking clarification in order to determine
the truth of the allegation in a pleading.
Purposes:
1. To allow one party to request the adverse in
writing to admit certain material and relevant
matters which most likely will not be disputed
during the trial.
2. To avoid unnecessary inconvenience to the
parties in going through the rigors of proof,
before the trial, a party may request the other to:
a. Admit the genuineness of any material and
relevant document described in and
exhibited with the request; or
b. Admit the truth of any material and relevant
matter of fact set forth in the request [Rule
26, Sec. 1]
How made:
1. A party files and serves upon any other party a
written request
2. Copies of the documents shall be served with the
request unless already furnished
When made: At any time after issues have been joined.
The request for admission MUST BE SERVED ON THE
PARTY and NOT ON THE COUNSEL. This is an exception
to the general rule that notices shall be served upon
counsel and not upon the party. (Duque v. CA, 2002)

Written Interrogatories
The deposition is takes
before a deposition officer
Questions are prepared
beforehand. These are
submitted to the deposition
officer who will ask the
deponent the questions and
he will record the answers.
The deposition of any
person may be taken,
whether he is a party or not.
Interrogatories to Implied Admission by Adverse Party (Rule 26, Sec. 2)
Parties
There is no Each of the matters which an admission is requested shall
deposition officer. be deemed admitted UNLESS the party to whom request
is directed files and serves upon the party requesting
admission a SWORN STATEMENT
The questioning is 1. Contents of the sworn statement:
direct. a. Denying specifically the matters of which an
admission is requested, or
b. Setting forth in detail the reasons why he
The deposition of cannot truthfully either admit or deny those
the parties are only matters
taken.
2. Period to file and serve the sworn statement
a. Within a period designated in the request
b. Which shall not be less than 15 days after
service thereof, or
c. Within such further time as the court may
allow on motion

Objections to any request for admission – Objections shall

be submitted to the court by the party requested within
the period for and prior to filing of his sworn statement.
Compliance with the sworn statement shall be deferred
until objections are resolved.

Effect of Admission (Rule 26, Sec. 3)

68
 1. Any admission made by a party pursuant to such PRODUCTION OR INSPECTION OF DOCUMENTS OR
request is for the purpose of the pending action THINGS (Rule 27)
only
2. It shall not: Rule 27 applies only to a PENDING ACTION and the
a. Constitute an admission by him for any other documentary things subject of the motion must be only
purpose; nor WITHIN the possession, control, or custody of a party
b. Be used against him in any other proceeding
PRODUCTION OR
Effect of Failure to File and Serve Request for Admission INSPECTION OF SUBPOENA DUCES TECUM
(Rule 26, Sec. 5) DOCUMENTS OR THINGS
Essentially a mode of A means of compelling
A party who fails to file and serve a request for admission discovery production of evidence
on the adverse party of material and relevant fact at issue It may be directed to a
which are, or ought to be, within the personal knowledge Rules is limited to the
person whether a party or
of the latter: parties of the action
not
1. He shall not be permitted to present evidence on The order under this Rule
such facts is issued only upon It may be issued upon an
2. UNLESS otherwise allowed by the court for good motion with notice to the ex parte application
cause and to prevent a failure of justice adverse party
May be asked before May be asked only during
NOTE: This is similar to the provision on and/or during trial trial
unjustified failure of a party to avail of written Necessary to show good Not necessary to show
interrogatories under Sec. 6, Rule 25. cause good cause
Grounds for quashal:
1. Unreasonable,
oppressive,
Ground for quashal: No
irrelevant
good cause shown
2. Failure to advance
reasonable costs
of production
Consequence of
Disobedience constitutes
disobedience, see Rule 29,
contempt of court
Sec. 3

Procedure:

1. A motion must be filed by the party seeking the

production or inspection of documents and
things and the motion must show good cause
supporting the same. [Rule 27, Sec. 1]

2. The court in which the action is pending shall

issue an order:
a. which shall specify the time, place and
manner of making the inspection and taking
copies and photographs, and
b. which may prescribe such terms and
conditions as are just. [Rule 27, Sec. 1]

Court Order:
1. The court may:
a. Order any party to produce and permit the
inspection and copying or photographing,
(1) By or on behalf of the moving party
(2) Of any designated documents, papers,
books, accounts, letters, photographs,
objects or tangible things, not privileged,
which constitute or contain evidence
material to any matter involved in the
action
(3) And which are in his possession, custody
or control

69
 b. Order any party to permit entry upon PHYSICAL AND MENTAL EXAMINATION OF PERSONS
designated land or other property in his (Rule 28)
possession or control
(1) For the purpose of inspecting, When available: In an action in which the mental or
measuring, surveying, or photographing, physical condition of a party is in controversy. (Rule 28,
property or any designated relevant Sec. 1)
object or operation thereon - NOTE: It is the mental and physical condition of a
PARTY not a WITNESS that is in controversy
2. Contents of the Order
a. Time, place, and manner of making the How Done:
inspection and taking copies and 1. Motion for examination is filed
photographs, and 2. Filed in the court in which the action is pending
b. Such terms and conditions as are just 3. Court may, in its discretion, order him to submit
to a physical or mental examination by a
physician

NOTE: Since the results of the examination are intended

to be made public, the same are not covered by physician-
patient privilege (Sec. 24(b), Rule 130)

Requisites to Obtain an Order for Examination

1. A motion must be filed for the physical and
mental examination
2. The motion must show good cause for the
examination
3. Notice to the party to be examined and to all
other parties;
4. The motion shall specify the time, place, manner,
conditions, and scope of the examination and the
person or persons by whom it is made (Rule 28,
Sec. 2)

Report of Findings (Rule 28, Sec. 3)

1. If requested by the party examined:

a. The party causing the examination to be
made shall deliver to him a copy of a detailed
written report of the examining physician
setting out his findings and conclusions

2. After such request and delivery:

a. The party causing the examination to be
made shall be entitled upon request to
receive from the party examined a like report
of any examination, previously or thereafter
made, of the same mental or physical
condition

3. If party examined refuses to deliver such report:

a. The court on motion and notice may make an
order requiring delivery on such terms as are
just
b. And if a physician fails or refuses to make
such a report the court may exclude his
testimony if offered at the trial

Waiver of privilege (Rule 28, Sec. 4)

Where the party examined requests and obtains a report

on the results of the examination, the consequences are:
1. He has to furnish the other party a copy of the
report of any previous or subsequent
examination of the same physical and mental
condition; AND
70
2. He waives any privilege he may have in that
action or any other involving the same
controversy regarding the testimony of any other
person who has so examined him or may
thereafter examine him

71
CONSEQUENCES OF REFUSAL TO COMPLY WITH
MODES OF DISCOVERY (Rule 29) The court on motion and notice may:
1. Strike out all or any part of any
Failure of
REFUSAL TO pleading of disobedient party
party to attend
COMPLY WITH 2. Dismiss the action or proceeding
SANCTIONS or serve
MODES OF or any part thereof
answers to
DISCOVERY 3. Enter a judgment by default
written
1. The court may, upon proper against disobedient party
interrogatories
application, compel a refusing 4. Order payment of reasonable
(Sec. 5)
deponent to answer (Sec. 1) expenses incurred by the other
a. If granted, and refusal to including attorney’s fees
answer is without substantial
justification, court may NOTE: Expenses and attorney’s fees are not to be imposed
require the refusing party to upon the Republic of the Philippines. (Rule 29, Sec. 6)
pay proponent the reasonable
Refusal to expenses incurred in
answer any obtaining the order
question b. If denied, and filed without
(Sec. 1 and 2) substantial justification, court
may require proponent to pay
refusing party the reasonable
expenses incurred in
obtaining the order
2. A refusal to answer after being
directed by court to do so may be
constituted as contempt of court

Cite the disobedient deponent in

Refusal to be
contempt of court
Sworn (Sec. 2)
The court may make the following
orders:
1. Prohibit the disobedient party to
introduce evidence of physical or
mental condition
Refusal to
2. Refuse to allow the disobedient
answer
party to support or oppose claims
designated
or defenses
questions or
3. Strike out pleadings or parts
refusal to
thereof
produce
4. Stay further proceedings
documents or
5. Dismiss the action or proceeding
to submit to
or any part thereof
physical or
6. Render a judgment by default
mental
against disobedient party
examination
7. Direct the arrest of any party
(Sec. 3)
disobeying any of such orders
except an order to submit to a
physical or mental examination
8. Other orders as may be just

The court, upon proper application,

issue an order requiring the other
party to pay him reasonable expenses
incurred, including attorney’s fees
Refusal to PROVIDED that party requesting
admit under proves genuineness of such document
Rule 26 or truth
(Sec. 4) UNLESS court finds:
1. There were good reasons for
denial
2. Admissions sought were of no
importance

72
 TRIAL
DEFINITION
A trial is the judicial process of investigating and
determining the legal controversies, starting with the
production of evidence by the plaintiff and ending with
his closing arguments [Acosta v. People (1962)].
A hearing is a broader term. It is not confined to the trial
and presentation of the evidence because it actually
embraces several stages in the litigation. It includes the
pre-trial and the determination of granting or denying a
motion. [Trocio v. Labayo (1973)]
NOTICE OF TRIAL (Rule 30, Sec. 1)
Upon entry of a case in the trial calendar, the clerk shall
notify parties the date of its trial, ensuring receipt of the
notice at least 5 days before the trial date.
GENERAL RULE: When an issue exists, trial is necessary.
Decision should not be made without trial.
EXCEPTIONS: When there may be judgment without trial
1. Judgment on the pleading (Rule 34)
2. Summary Judgment (Rule 35)
3. Judgment on Compromise
4. Judgment on Confession
5. Dismissal with Prejudice (Rule 17)
6. Judgment under Rule on Summary Procedure,
and
7. Stipulation of fact
ADJOURNMENTS AND POSTPONEMENTS (Rule 30, Sec.
2)
GENERAL RULE: A court may adjourn a trial from day to
day, and to any stated time, as the expeditious and
convenient transaction of business may require
LIMITATION: The court has no power to adjourn a trial
for:
1. A period longer than one month for each
adjournment; or
2. More than 3 months in all
EXCEPTION: Unless authorized in writing by the
Court Administrator, SC
Postponement is not a matter of right. It is addressed to
the sound discretion of the court. [Riano, citing Garces v
Valenzuela (1989)]
REQUISITES OF MOTION TO POSTPONE TRIAL
1. For absence of evidence (Rule 30, Sec. 3)
a. Submission of affidavit showing that:
(1) The evidence is relevant; and
73
(2) Diligent efforts had been exerted to
procure the evidence
2. For illness of party or counsel (Rule 30, Sec. 4)
a. A motion for postponement stating the
ground relied upon must be filed; and
b. The motion must be supported by an
affidavit or sworn certification showing:
(1) The presence of such party or counsel at
the trial is indispensable; and
(2) That the character of his illness is such as
to render his non-attendance excusable
AGREED STATEMENT OF FACTS (Rule 30, Sec. 6)
The parties may agree in writing upon the facts involved
in the litigation and submit the case for judgment in the
facts agreed upon without the introduction of evidence
If the parties agree only on some of the facts in issue, trial
shall be held as to the disputed facts in such order as the
court shall prescribe.
Stipulation Of Facts in Stipulation Of Facts in
Civil Cases Criminal Cases
May be signed by the
Must be signed by both
counsel alone who has an
counsel and accused
SPA
May be made verbally or Strict; it must always be in
in writing writing
An agreed statement of facts is conclusive on the parties,
as well as on the court. Neither of the parties may
withdraw from the agreement, nor may the court ignore
the same. [McGuire v. Manufactures Life]
ORDER OF TRIAL; REVERSAL OF ORDER (Rule 30, Sec.
5)
General Rule: Trial shall be limited to the issues stated in
the pre-trial order.
Exceptions:
1. Provisions on separate trials under Rule 31, Sec.
2
2. When for special reasons the court directs
otherwise
General Order of Trial:
1. Plaintiff’s evidence in chief
2. Defendant’s evidence in chief and evidence in
support of his counterclaim, cross-claim and 3rd-
party complaint
3. 3rd-party defendant shall adduce evidence of his
defense, counterclaim, cross-claim, and 4th party
complaint
4. 4th-party defendant shall adduce evidence, and so
forth
5. Parties against whom any counterclaim or cross-
claim has been pleaded shall adduce evidence in
 support of their defense, in the order to be
prescribed by court
6. Parties may then respectively adduce rebutting
evidence only
a. Unless the court permits them to adduce
evidence upon original case
7. Upon admission of evidence, case submitted for
decision
a. Unless court directs parties to argue or to
submit respective memoranda or any further
pleading
Reverse Order of Trial:
in this situation, the defendant presents evidence ahead of
the plaintiff
When Proper: If the defendant in his answer relies upon
an affirmative defense
Where the answer of the defendant admitted the
obligation stated in the complaint, although
special defenses were pleaded, the plaintiff has
every right to insist that it was for the defendant
to come forward with evidence to support his
special defenses (Yu v. Mapayo)
Ratio: Plaintiff need not have to present evidence since
judicial admissions do not require proof (Sec. 2, Rule 129)
CONSOLIDATION OR SEVERANCE OF HEARING OR
TRIAL (Rule 31)
CONSOLIDATION
When proper: When actions involving a common question
of fact or law are pending before the court
Court action: The court may:
1. Order a joint hearing or trial of any or all matters
in issue in the actions
2. Order all actions consolidated
3. Such orders concerning proceedings therein as
may tend to avoid unnecessary costs or delay
Purpose: To avoid multiplicity of suits, guard against
oppression or abuse, prevent delay, clear congested
dockets, simplify the work of the trial court and save
unnecessary costs and expenses
Where a case has been partially tried before one judge,
the consolidation of the same with another related case
pending before another judge who had no opportunity to
observe the demeanor of the witness during trial makes
the consolidation not mandatory. [PCGG v. Sandiganbayan
(1992)]
It has been held that the rules do not distinguish between
cases filed before the same branch or judge and those that
are pending in different branches or before different
judges of the same court, in order that consolidation may
be proper, as long as the cases involve the resolution of
74
questions of law or facts in common with each other
(Active Woods Products Co. Inc. v. CA)
SEVERANCE
When proper: This contemplates a single action having a
number of claims, counterclaims, cross-claims, third-
party complaints or issues which may be separately tried
When separate trial of claims is conducted by the court
under this section, it may render separate judgments on
each claim (see Sec. 5, Rule 36)
This provision permitting separate trials presupposes
that the claims involved are within the jurisdiction of the
court
- When one of the claims is not within its
jurisdiction, the same should be dismissed, so
that it may be filed in the proper court
DELEGATION OF RECEPTION OF EVIDENCE (Rule 30,
Sec. 9)
General Rule: The judge of the court where the case is
pending shall personally receive the evidence to be
adduced by the parties.
Exception: The court may delegate the reception of
evidence to its clerk of court who is a member of the bar
in:
1. Default hearings;
2. Ex parte hearings;
3. Cases where parties agree in writing.
However, the clerk of court has no power to rule on
objections to any question/admission of exhibits.
Objections shall be resolved by the court upon submission
of the clerk’s report and TSN within 10 days from
termination of the hearing.
The rule requires that, where the reception of evidence is
delegated to the clerk of court, he must also be a member
of the bar. Neither agreement by parties nor their
acquiescence can justify its violation. [Umali-Paco v.
Quilala]
TRIAL BY COMMISSIONERS (Rule 32)
CONCEPTS
Commissioner - A person to whom a case pending in court
is referred, for him to take testimony, hear the parties and
report thereon to the court, and upon whose report, if
confirmed, judgment is rendered
General rule: Trial by commissioner depends largely upon
the discretion of the court
Exception: In the following instances, appointment of
a commissioner is necessary:
 1. Expropriation (Rule 67)
2. Partition (Rule 69)
3. Settlement of Estate of a Deceased Person in case
of contested claims; and
4. Submission of Accounting by executors or
administrators
Kinds of trial by commissioners
1. Reference by consent of both parties.
2. Reference ordered on motion when:
a. Trial of an issue of fact requires the
examination of a long account on either side
b. Taking of an account is necessary for the
court’s information before judgment, or for
carrying judgment/order into effect.
c. A question of fact, other than upon the
pleadings, arises in any stage of a case or for
carrying a judgment/order into effect.
REFERENCE BY CONSENT
The court may order any or all of the issues in a case to be
referred to a commissioner by written consent of BOTH
parties. (Rule 32, Sec. 1)
Commissioners are to be:
1. Agreed upon by the parties; or
2. Appointed by the court
REFERENCE ORDERED ON MOTION
When proper:
1. When trial of an issue of fact requires
examination of long account
2. When taking of an account is necessary
3. When question of fact, other than upon pleadings,
arises upon motion or otherwise, in any stage
(Rule 32, Sec. 2)
Order of Reference: (Rule 32, Sec. 3)
1. When a reference is made, the clerk shall furnish
the commissioner with a copy of the order of
reference
2. Contents of the order:
a. It may specify or limit the powers of
commissioner
b. It may direct him to report only upon
particular issues; or to do or perform
particular acts; or to receive and report
evidence only
c. It may fix the date for beginning and closing
the hearings and for the filing of his report
Powers of Commissioner:
1. Exercise power to regulate the proceeding before
him
2. Do all acts and take all measures necessary or
proper for the efficient performance of his duties
3. Swear witnesses
4. Issue subpoena and subpoenas duces tecum
5. Rule upon the admissibility of evidence
75
a. UNLESS otherwise provided in the order of
reference
NOTE: Limitations on the powers of
commissioner are found in the Order of
Reference.
Proceedings before the Commissioner (Rule 32, Sec. 5)
1. Upon receipt of the order of reference, the
commissioner shall set a time and place for the
first meeting of parties or their counsel
2. Notices shall be sent to parties or counsel
3. Hearing is to be held within 10 days after date of
order of reference
4. If a party fails to appear, the commissioner may:
(Sec. 6)
a. Proceed ex parte; or
b. Adjourn the proceedings to a future date
giving notice to the absent party
REPORT OF COMMISSIONER (Rule 32, Sec. 9)
1. When filed:
a. Filed upon completion of the trial or hearing
or proceeding before the commissioner
b. Filed with the court
2. Contents:
a. Report in writing upon the matters
submitted to him by the order of reference
b. When his powers are not specified or limited,
he shall set forth his findings of fact and
conclusions of law in his report
c. He shall attach all exhibits, affidavits,
depositions, papers, and transcripts, if any, of
testimonial evidence presented before him
NOTICE AND HEARING ON THE REPORT (Rule 32, Sec. 10
and 11)
Upon filing of the report of the commissioner:
1. Parties shall be notified by the clerk
2. Parties shall be allowed 10 days within which to
object to the findings of the report
NOTE: Objections to the report based upon
grounds which were available to the parties
during the proceedings before the commissioner
shall not be considered by the court UNLESS they
were made before the commissioner
Hearing on the Report:
1. When made: Upon expiration of the 10 day
period in Sec. 10
2. The report shall be then set forth in hearing
3. After the hearing, the court shall issue an order,
either:
a. Adopting, modifying, or rejecting the report
in whole or in part
b. Or recommitting it with instructions
c. Or requiring the parties to present further
evidence before the commissioner or the
court

76
 DEMURRER TO EVIDENCE render judgment on the
basis of the evidence
CONCEPTS: submitted by the plaintiff.
[Radiowealth Finance v. Del
Definition - A species of MTD that may be invoked based Rosario (2000)]
on insufficiency of evidence (i.e. upon the facts and the An interlocutory order and
law the plaintiff has shown no right to relief). [Rule 33, not appealable. However, it
Sec. 1] Equivalent to judgment (i.e. may be the subject of a
based on the merits of the petition for certiorari for
It is invoked after the plaintiff has presented all the evidence presented so far) GAD under Rule 65
evidence available to him [Katigbak v. Sandiganbayan
(2003)]
Judgment on Demurrer to Evidence – It is a judgment
rendered by the court dismissing a case upon motion of
defendant, made after plaintiff has rested his case, on the WAIVER OF RIGHT TO PRESENT EVIDENCE
ground that upon the facts presented and the law on the
matter, plaintiff has not shown any right to relief. If the order granting the demurrer is reversed on appeal,
the defendant loses his right to present evidence. [Rule
Distinctions 33, Sec .1; Republic v. Tuvera (2007)]

DEMURRER TO EVIDENCE MOTION TO DISMISS Two scenarios:

It is presented after the
plaintiff has rested his
case
The ground is based on
the insufficiency of
evidence
If the motion is denied, the
defendant may present his
evidence file his responsive pleading
If the motion is granted,
the complaint is dismissed
The plaintiff’s remedy is to
appeal
EFFECT OF DENIAL; EFFECT OF GRANT
Grant of demurrer
Presented before a
responsive pleading is
made by the defendant
It may be based on any of
those enumerated in Rule
16
If the motion to dismiss is
denied, the defendant may
If the motion to dismiss is
granted, the complaint is
dismissed and depending
on the ground, the
complaint may be re-filed
Denial of demurrer
The defendant shall have
the right to present
evidence
MOTION GRANTED BUT
MOTION DENIED
REVERSED ON APPEAL
Movant is deemed to have
waived his right to present
evidence.
The decision of the
Movant shall have the appellate court will be
right to present his based only on the evidence
evidence of the plaintiff as the
defendant loses his right to
have the case remanded
for reception of his
evidence
Denial is
INTERLOCUTORY
Sec. 1, Rule 36 (that Order of the court is an
judgment should state ADJUDICATION ON THE
clearly and distinctly the MERITS
facts and the law on which Hence, the requirement in
it is based) will NOT Sec. 1, Rule 36 should be
apply. complied with
The denial is NOT
appealable

The case shall be dismissed The court should set the

date for the reception of the DEMURRER TO EVIDENCE IN CIVIL CASES VERSUS
defendant’s evidence-in- CRIMINAL CASES
chief [Northwest Airlines v.
CA (1998)] CIVIL CASES CRIMINAL CASES
Plaintiff's remedy would be May be filed with or
to appeal. without leave of court.
Defendant need not ask Leave of court is necessary
However, if the order for leave of court so that the accused could
granting the demurrer is present his evidence if
reversed on appeal, the demurrer is denied
xxx If the court finds the
defendant loses his right to If the court finds plaintiff’s
present evidence. [Rule 33, prosecution’s evidence
evidence insufficient, it
Sec 1; Republic v. Tuvera insufficient, it will grant
will grant demurrer by
(2007)] demurrer by rendering
dismissing the complaint
judgment of acquittal.
The appellate court should The judgment of dismissal Judgment of acquittal is
77
 is appealable. NOT appealable.
If plaintiff appeals and Double jeopardy sets in.
judgment is reversed by
the appellate court, it will
decide the case on the
basis of plaintiff’s
evidence with the
consequence that the
defendant already loses
his right to present
evidence.
There is no res judicata in
dismissal due to
demurrer.
The plaintiff files a motion
The court may motu
to deny motion to
proprio deny the motion
demurrer to evidence
If court denies the
demurrer filed with leave,
accused may present his
evidence.
If court denies the If court denies the
demurrer, defendant will demurrer filed without
present his evidence leave, accused can no
longer present his
evidence and submits the
case for decision based on
the prosecution’s evidence

78
JUDGMENTS AND
FINAL ORDERS
JUDGMENTS IN GENERAL
Definition - The final ruling by a court of competent
jurisdiction regarding the rights and obligations of the
parties or other matters submitted to it in an
action/proceeding [Macahilig v. Heirs of Magalit (2000)]
Requisites of a Valid Judgmen (Rule 36, Sec. 1; Art. VIII,
Sec. 14, 1987 Constitution)
1. Court/tribunal must be with authority to hear
and determine the matter before it;
2. Court must have jurisdiction over the parties and
the subject matter;
3. Parties must have been given an opportunity to
adduce evidence in their behalf;
4. Evidence must have been considered by the
tribunal in deciding the case; [Acosta v. COMELEC
(1998)]
5. Judgment must be in writing, personally and
directly prepared by the judge. A verbal judgment
is, under the law, ineffective. [Corpus v.
Sandiganbayan (2004)]
6. Judgment must state clearly the facts and the law
upon which the decision is based, signed by the
judge and filed with the clerk of court. [Rule 35,
Sec. 1]
Kinds of Judgment:
1. JUDGMENT ON COMPROMISE - It is one
conferred on the basis of a compromise
agreement entered into between the parties. It is
immediately executory in the absence of a motion
to set aside on the ground of FAME.
2. JUDGMENT UPON CONFESSION - It is one
rendered by the court when a party expressly
agrees to the other party’s claim or acknowledges
the validity of the claim against him.
a. JUDGMENT BY COGNOVIT ACTIONEM – After
service, the defendant, instead of entering a
plea, acknowledged and confessed that the
plaintiff’s cause of action was just and
rightful.
b. JUDGMENT BY CONFESSION RELICTA
VERIFICATIONE – After pleading and before
trial, the defendant both: (a) confessed the
plaintiff’s cause of action and (b) withdrew
his plea or other allegations, whereupon
judgment was entered against him without
proceeding to trial.
3. JUDGMENT UPON THE MERITS - It is one that is
rendered after consideration of the evidence
submitted by the parties during the trial of the
79
case. A judgment is “on the merits” when it
amounts to a legal declaration of the respective
rights and duties of the parties, based upon the
4.
disclosed facts
CLARIFICATORY JUDGMENT - It is rendered to
clarify an ambiguous judgment or one difficult to
comply with.
5. JUDGMENT NUNC PRO TUNC - Literally, “now for
then”. It is a judgment intended to enter into the
record the acts which had already been done, but
which do not appear in the records. [Lichauco v.
Tan Pho (1923)]
6. JUDGMENT SIN PERJUICIO - It may refer to a
dismissal of a case without prejudice to it being
re-filed.
7. CONDITIONAL JUDGMENT - It is one the
effectivity of which depends upon the occurrence
or non-occurrence of an event. Such a judgment
is generally void because of the absence of a
disposition [Cu-Unjieng v. Mabalacat Sugar Co.
(1940)]
8. SEVERAL JUDGMENT - It is one rendered by a
court against one or more defendants and not
against all of them, leaving the action to proceed
against the others. [Rule 36, Sec. 4] It is proper
when the liability of each party is clearly separate
and distinct from his co-parties such that the
claims against each of them could have been the
subject of separate suits, and the judgment for or
against one of them will not necessarily affect the
other.
9. SEPARATE JUDGMENT - It is one rendered
disposing of a claim among several others
presented in a case, after a determination of the
issues material to a particular claim and all
counterclaims arising out of the transaction or
occurrence that is the subject matter of said
claim. [Rule 36, Sec. 5] It is proper when more
than one claim for relief is presented in an action
for the determination as to the issues material to
the claim has been made.
10. MEMORANDUM DECISION - A decision of the
appellate court which adopts the findings and
conclusions of the TC.
a. A judgment is considered rendered upon the
filing of the signed decision.
b. This includes an amended decision because
an amended decision is a distinct and
separate judgment and must follow the
established procedural rule.
 JUDGMENT WITHOUT TRIAL
When trial is NOT necessary:
1. The pleadings of the parties tender no issue at all
– judgment on the pleadings may be directed by
the court [Rule 34]
2. There is actually no genuine issue from the
pleadings, affidavits, depositions and other
papers – court may render a summary judgment
[Rule 35]
3. Parties entered into a compromise or an
amicable settlement either during the pre-trial or
during the trial [Rule 18; Art. 2028 Civil Code]
4. Complaint has been dismissed with prejudice
[Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5 (last
par.)]
5. Case falls under the Rules on Summary
Procedure
6. Agreed statement of facts [Rule 30, Sec. 6]
80
CONTENTS OF A JUDGMENT
Parts of a Judgment
1. Body, Ratio decidendi, or Opinion of the court – It
contains the findings of facts and conclusions of
law;
2. Fallo, or Disposition of the case – It is the
dispositive part of the judgment that actually
settles and declares the rights and obligations of
the parties, finally, definitively, and
authoritatively [Light Rail Transit Authority v.
CA] (2004); The part of the judgment that is
subject to execution [Riano]
3. Signature of the judge
Distinction between Judgment and Opinion of the Court
1. A judgment (or FALLO) must be distinguished
from an opinion.
2. The latter is the informal expression of the views
of the court and cannot prevail against its final
order or decision.
3. While the two may be combined in one
instrument, the opinion forms no part of the
judgment.
4. So there is a distinction between the findings and
conclusions of a court and its judgment.
5. While they may constitute its decision and
amount to a rendition of a judgment they are not
the judgment itself.
6. They amount to nothing more than an order for
judgment, which, of course, must be
distinguished from the judgment. [Freeman on
Judgments, Vol. I, 5th Edition, page 6, quoted in
Casilan v. Salcedo (1969)]
Conflict Between Dispositive Portion and Body of Decision
Rule: Where there is a conflict between the fallo and the
body of the decision, the fallo controls.
Qualification: This rule applies only when the dispositive
part is definite, clear, and unequivocal [Union Bank v.
Pacific Equipment Corporation (2008)]
Basis: The fallo is the final order. The opinion in the body
is merely a statement ordering nothing [Poland Industrial
Limited v. National Development Company (2005)]
 JUDGMENT ON THE PLEADINGS
Judgment on the Pleadings is a judgment rendered by the
court if the answer fails to tender an issue, or otherwise
admits the material allegations of the adverse party’s
pleading. It is rendered without a trial, or even without a
pre-trial
It has been held that a motion for a judgment on the
pleadings, were the answer admits all material
averments, is one that may be considered ex parte
because upon the particular facts thus presented and laid
down before the court, the plaintiff is entitled to a
judgment (Dino v. Valencia), or motu proprio under Rule
18(2g) (Luzon Dev. Bank v. Conquilla)
Grounds for Judgment on the Pleadings (Rule 34, Sec. 1)
1. The answer fails to tender an issue because of:
a. General denial of the material allegations of
the complaint;
b. Insufficient denial of the material allegations
of the complaint; OR
2. The answer admits material allegations of the
adverse party’s pleading
Judgment on the Pleadings is NOT proper in actions for:
1. Declaration of Nullity of Marriage
2. Annulment of marriage; and
3. Legal Separation
4. Unliquidated damages; claims for such damages
must be alleged and proved
5. Admission refers only to allegations of fact and
not conclusions of law
6. Insufficiency of facts; proper remedy is
amendment
NOTE: If the complaint states no cause of action, a motion
to dismiss should be filed and not a motion for judgment
on the pleadings.
SUMMARY JUDGMENTS
Summary Judgment is a judgment rendered by a court
without trial if it is clear that there exists NO GENUINE
ISSUE or controversy as to any material fact, EXCEPT as to
the amount of damages
Genuine Issue - an issue of fact which calls for the
presentation of evidence as distinguished from an issue,
which is a sham, fictitious, contrived, and patently
unsubstantial so as not to constitute a genuine issue for
trial
PROCEDURE (Rule 35, Sec. 3)
1. Movant files a motion for summary judgment
with supporting affidavits, depositions or
admission
2. Service to the adverse party at least 10 days the
hearing
3. Adverse party may serve opposing affidavits,
depositions or admissions at least 3 days before
the hearing
4. Hearing – Court shall determine if a genuine issue
as to any material fact exists and if the movant is
entitled to a summary judgment as a matter of
law
5. Court renders summary judgment
NOTE: Damages must still be proven even if not
denied.
Bases for Summary Judgment:
1. Affidavits made on personal knowledge;
2. Depositions of the adverse or a 3rd party; (Rule
23)
3. Admissions of the adverse party; (Rule 26)
4. Answers to interrogatories. (Rule 25)
WHO MAY FILE

Who may file the When

motion

Claimant May file the motion only after

the answer has been served
Defendant May file the motion any time

NOTE: Filing of a motion for summary judgment does not

interrupt the running of the period for filing an answer.
Hence, the movant must also file a Motion for Extension of
Time to File Answer.

TEST: Whether or not the pleadings, affidavits and

exhibits in support of the motion are sufficient to
overcome the opposing papers and to justify the finding
that, as a matter of law, there is no defense to the action
or claim is clearly meritorious (Estrada v. Consolocaion, et
al.)

WHEN THE CASE IS NOT FULLY ADJUDICATED

81
 1. That there must be NO genuine issue as to any
Partial Summary Judgment - Applies when for some material fact, except for the amount of damages;
reason there can be no full summary judgment. Trial and
should deal only with the facts not yet specified or 2. That the party presenting the motion for
established. summary judgment must be entitled to a
judgment as a matter of law
Nature – It is interlocutory in nature and is not a final and
appealable judgment. (Guevarra v. CA)
SUMMARY JUDGMENT v. JUDGMENT ON THE
Duty of the Court (Rule 35, Sec. 4) PLEADINGS v. JUDGMENT BY DEFAULT
1. Ascertain what material facts exist without
substantial controversy and what are actually SUMMARY JUDGMENT ON JUDGMENT BY
and in good faith controverted based on: JUDGMENT THE PLEADINGS DEFAULT
a. An examination of the pleadings and Based on the Based on the
evidence before it pleadings, complaint and
b. Interrogation of the counsel Based solely on
depositions, evidence, if
the pleadings
admissions, and presentation is
2. Make an order specifying the facts and the extent affidavits required
of the amount of damages that appear without Generally
substantial controversy available only to
Available to the plaintiff,
3. Direct further proceedings as are just Available to
both plaintiff unless the
plaintiff
and defendant defendant
4. Conduct trial on the controverted facts presents a
accordingly counterclaim
There is no
Effect - A partial summary judgment is not a final genuine issue The answer fails
judgment, but merely a pre-trial adjudication that said between the to tender an issue No issue as no
issues in the case shall be deemed established for the trial parties or there is an answer is filed
of the case. [Guevarra v. CA (1983)] i.e. There may admission of by the defending
be issues but material party
these are allegations
AFFIDAVITS AND ATTACHMENTS irrelevant
10-day notice 3-day notice 3-day notice rule
These are submitted to support the motion for summary required required applies
judgment. May be
interlocutory or On the merits On the merits
Form of affidavits and supporting papers (Rule 35, Sec. 5) on the merits
1. Made on personal knowledge Available only
2. Shall set forth such facts as would be admissible in actions to Available in any
in evidence Available in any
recover a debt, action except
3. Shall show affirmatively that the affiant is action except
or for a annulment of
competent to testify to the matters stated therein. annulment of
liquidated sum marriage, or
4. Sworn or certified true copies of all papers or marriage, or legal
of money or for legal separation
parts thereof referred to in the affidavit shall be separation cases
declaratory cases
attached thereto OR served therewith. relief
If filed by
Affidavits in bad faith plaintiff, it must
1. Affidavits presented under this Rule which be filed at any
appear to the court at any time as presented in time after an
bad faith or solely for the purpose of delay answer is
2. Effects: served. There is already There is no
a. Court shall order the offending party or If filed by an answer filed answer filed
counsel to pay the other party – amount of defendant, may
reasonable expenses which the filing of the be filed at any
affidavits caused him to incur, including time even
attorney’s fees before there is
b. Court may adjudge the offending party or answer
counsel guilty of contempt, after hearing

SUMMARY JUDGMENT

Validity: Sec. 3, Rule 35 requires:

82
 RENDITION OF JUDGMENTS AND FINAL
ORDERS
FORM OF JUDGMENT (Rule 36, Sec. 1)
1. In writing
2. Personally and directly prepared by the judge
3. Stating clearly & distinctly the facts and the law
on which it is based
4. Signed by the judged
5. Filed with the clerk of court.
DEFINITION OF RENDITION OF JUDGMENT
It is the filing of the judgment with the clerk of court. It is
not the pronouncement of the judgment in open court
that constitutes the rendition. Even if the judgment has
already been put in writing and signed, it is still subject to
amendment if it has not yet been filed with the clerk of
court and before its filing does not yet constitute the real
judgment of the court. [Ago v. CA (1962)]
PERIOD OF RENDITION (Art VIII, Sec. 5, 1987
Constitution)
1. All cases filed must be decided or resolved by the
Supreme Court within 24 months from the date
of their submission for decision.
2. Unless reduced by the SC, within 12 months for
lower collegiate courts and within 3 months for
all other lower courts.
A case is deemed submitted for resolution upon the filing
of the last pleading, brief or memorandum required by
the Rules of Court or by the court.
An extension of the period may be set by the SC upon
request by the judge concerned on account of heavy
caseload or by other reasonable excuse [Arap v Mustafa
(2002)]
83
ENTRY OF JUDGMENT AND FINAL ORDER
DEFINITION
The entry of judgment refers to the physical act
performed by the clerk of court in entering the dispositive
portion of the judgment in the book of entries of judgment
after the same has become final and executory. [Riano]
It is the filing of the signed decision with the clerk of
court, and not its pronouncement in open court that
constitutes rendition of judgment (Ago v. CA)
Promulgation refers to the process by which a decision is
published, officially announced, made known to the public
or delivered to the clerk of court for filing, coupled with
notice to the parties or their counsel
Rendition of judgment Entry of judgment
Act of clerk of court in
entering the dispositive
Filing of the judgment with
portion of the judgment in
the clerk of court
the book of entries of
judgment
ENTRY OF JUDGMENTS AND FINAL ORDERS (Rule 36,
Sec. 2)
When entered: If no appeal or motion for new trial or
reconsideration is filed within the time provided in the
Rules, judgment or final order shall forthwith be entered
by the clerk in the book of entries of judgments
Date of Finality: Date of finality is the date of entry.
Contents of the Records in the Book of Entries:
1. Dispositive part of the judgment or final order
2. Signed by the clerk with a certification that such
judgment or final order has become final and
executory.
AMENDMENTS TO JUDGMENT
General Rule: Once a judgment becomes final and
executory, such judgment can no longer be disturbed,
altered, or modified
Exceptions:
1. Clerical errors
2. Nunc Pro Tunc entries
3. Void judgments - Final judgment can be annulled
on the ground of fraud or lack of jurisdiction or
contrary to law (Panlilio v. Garcia)
4. Whenever circumstances transpire after finality
of the decision making its execution unjust and
inequitable:
a. Cases where, because of supervening events,
it becomes imperative, in the higher interest
of justice, to direct its modification in order
 to harmonize the disposition with the
prevailing circumstances (Seavan Carrier Inc.
v. GTI Sportswear Corp.)
b. Whenever it is necessary to accomplish the
aims of justice (Pascual v. Tan)

Amended/clarified
Supplemental decision
judgment
An entirely new decision Does not take the place of
and supersedes the original or extinguish the original
judgment judgment
Court makes a thorough
study of the original
judgment and renders the
Serves to add to the
amended and clarified
original judgment
judgment only after
considering all the factual
and legal issues

84
POST-JUDGMENT
REMEDIES
MOTION FOR RECONSIDERATION AND
MOTION FOR NEW TRIAL
REMEDIES BEFORE FINALITY OF JUDGMENT
1. Motion for reconsideration
2. Motion for new trial
3. Appeal
DEFINITION
A motion for reconsideration under Rule 37 is directed
against a judgment or final order. It is not the motion for
reconsideration of interlocutory order, which often
precedes a petition for certiorari under Rule 65. It does
not apply to cases that fall under Summary Procedure.
GROUNDS: (Rule 37, Sec. 1)
Grounds for Motion for New Trial:
1. FAME – Fraud, accident, mistake, excusable
negligence
a. Conditions:
(1) Which ordinary prudence could not have
guarded against; and
(2) By reason of which such aggrieved party
has probably been impaired in his rights
NOTE: Fraud must be extrinsic fraud which
means any fraudulent scheme executed by the
prevailing party outside of the trial against the
losing party who because of such fraud is
prevented from presenting his side of the case.
2. Newly discovered evidence
a. Requisites:
(1) It must have been discovered after the
trial
(2) It could not have been discovered and
produced at the trial even with the
exercise of reasonable diligence; and
(3) The evidence is of such weight that if
admitted, would probably alter the result
of the action; and
(4) It must be material and not merely
collateral, cumulative, or corroborative
Grounds for Motion for Reconsideration:
1. Damages awarded are excessive
2. Evidence is insufficient to justify the decision or
final order
3. The decision or final order is contrary to law
WHEN TO FILE:
An aggrieved party may file a motion for new trial or
reconsideration within the period for taking an appeal.
85
The motions are filed with the court which rendered the
questioned judgment or final order.
The period for appeal is within 15 days after notice to the
appellant of the judgment or final order appealed from.
The 15-day period is deemed to commence upon receipt
by the counsel of record, which is considered notice to the
parties. Service upon the parties themselves is prohibited
and is not considered as official receipt of judgment.
Effect of Filing – The filing of a timely motion interrupts
the period to appeal.
FORM AND CONTENTS (Rule 37, Sec. 2)
Form:
1. The motion must comply with the provisions of
Rule 15 otherwise it will not be accepted for
filing and/or will not suspend the running of the
reglementary period.
2. It shall be made in writing, stating the ground or
grounds therefor
3. Written notice shall be served by movant on the
adverse party
NOTE: Non-compliance with this requirement
would reduce the motion to a mere pro forma
motion, which shall not toll the period for appeal.
Contents of a motion for new trial
1. If based on FAME, it shall be supported by an
affidavit of merits
NOTE: An affidavit of merits is one which recites
the nature and character of FAME on which the
motion is based and stating the movant’s good
and substantial cause of action or defense and the
evidence he intends to present if granted
2. If based on newly found evidence, it shall be
supported by:
a. Affidavits of witnesses by whom such
evidence is expected or given; or
b. Duly authenticated documents which are
proposed to be introduced in evidence
Contents of a motion for reconsideration
1. Shall point out specifically the findings or
conclusions of the judgment or final order which
are not supported by evidence or which are
contrary to law
2. Make express reference to testimonial or
documentary evidence or provisions of law
alleged to be contrary to such findings or
conclusions
RESOLUTION OF MOTION AND COURT ACTION
Court action – The court may: (Rule 37, Sec. 3)
1. Set aside the judgment or final order and grant a
new trial; or upon such terms as may be just
2. Deny the motion
 3. Amend such judgment or final order accordingly motion for reconsideration but to the period
if: within which to appeal from the judgment itself.
a. The court finds that excessive damages have
been awarded or that; or Filing of a proper motion for new trial interrupts the
b. That the judgment or final order is contrary running of the period of appeal which begins to run again
to the evidence or law from receipt of the notice of the movant of the order
denying his motion (fresh 15 day period) (Phil.
Resolution (Rule 37, Sec. 4) – he motion shall be resolved Commercial and Industrial Bank v. Ortiz)
within 30 days from submission
Remedies if Motion is DENIED:
The 30-day period to resolve the motion is held to be 1. To appeal from the judgment or final order itself
mandatory [Gonzales v. Bantolo (2006)] 2. The order denying the motion may itself be
assailed by a petition for certiorari under Rule 65
GRANT OF THE MOTION; EFFECT 3. Rule 37, Sec. 9 says that an order denying a
motion for new trial or reconsideration is NOT
Grant of motion for reconsideration - The court may appealable
amend the judgment or final order accordingly. The a. NOTE HOWEVER: AM 07-7-12 amended Sec.
amended judgment is in the nature of a new judgment, 1 of Rule 41 by deleting “An order denying a
which supersedes the original judgment. motion for new trial or reconsideration”
from the non-appealable orders.
Grant of motion for new trial - The original judgment shall
be vacated, and the action shall stand for trial de novo.
The recorded evidence upon the former trial shall be used MOTION FOR MOTION FOR
at the new trial without retaking them (if they are NEW TRIAL RECONSIDERATION
material and competent). Grounds: Grounds:
1. Fraud, accident, 1. Damages awarded
Partial grant – Rule 37, Sec. 7 allows the court to order a mistake, or are excessive
new trial or grant reconsideration as to such issues if excusable 2. That evidence is
severable without interfering with the judgment or final negligence insufficient to
order upon the rest. 2. Newly discovered justify the
evidence decision or final
 Note the order
REMEDY WHEN MOTION IS DENIED; FRESH 15-DAY qualifications 3. That decision or
RULE of each final order is
contrary to law
Effect of Denial of Motion – The judgment or final order Second motion from the
shall stand as is Second motion may be same party is prohibited.
allowed so long as based The prohibition applies
Single-Motion Rule (Rule 37, Sec. 5) – A party shall not be on grounds not existing or only to final orders or
allowed to file a 2nd motion for reconsideration. available at the time the judgments, hence it is
- Follow the Omnibus Motion Rule first motion was made allowed in interlocutory
orders
NOTE: While a 2nd motion for reconsideration is not If the court finds that
allowed, a second motion for new trial is authorized If a new trial is granted, excessive damages have
- However, it must be based on a ground not original judgment or final been awarded or that the
existing nor available when the 1st motion was order is vacated. judgment or final order is
made within the period allowed but excluding the The case stands for trial contrary to the evidence or
time during which the first motion had been de novo and will be tried law, it may amend such
pending. anew judgment or final order
accordingly
Fresh 15-Day Rule: The aggrieved party has a “fresh Available even on appeal Available against the
period” of 15 DAYS within which to file his appeal. but only on the ground of judgments or final orders
newly discovered or both the trial and
If the motion is denied, the movant has a “fresh period” of evidence appellate courts
15 days from receipt or notice of the order denying the Both are prohibited motions under Summary Procedure
motion for new trial or motion for reconsideration within
which to file an appeal. (Neypes v. CA, 2005)

NOTES:
1. This fresh period becomes significant only when
a party opts to file a motion for new trial or
reconsideration
2. This rule does not refer to the period within
which to appeal from the order denying the
86
 APPEALS IN GENERAL nothing more to be leaves something more
done but to enforce to be decided upon.
NATURE OF APPEAL execution
Not appealable except
1. Not a natural right nor a part of due process Appealable through a petition for
2. It is merely a statutory right, and may be certiorari under Rule 65
exercised only in the manner and in accordance Must clearly and
with provisions of the law. It must comply with distinctly state the law No need to comply with
the requirements; failing to do so, the right to and the facts on which such a requirement
appeal is lost it is based
3. Once granted, appeals become part of due
process and should be liberally applied in favor An interlocutory order is one that does not finally dispose
of the right to appeal of the case, and does not end the court's task of
adjudicating the parties’ contentions and determining
their rights and liabilities as regards each other, but
JUDGMENTS AND FINAL ORDERS SUBJECT TO obviously indicates that other things remain to be done.
APPEAL; MATTERS NOT APPEALABLE [BPI v. Lee (2012)]

Rule 41, Sec. 1, as amended by AM 07-7-12-SC (2007)

provides:
1. Appeal may be taken from a judgment or final
order that completely disposes of the case, or of a
particular matter therein when declared by the
Rules to be appealable
REMEDY AGAINST JUDGMENTS AND ORDERS WHICH
ARE NOT APPEALABLE
The aggrieved party may file a special civil action under
Rule 65. (Rule 41, Sec. 1)

2. No appeal may be taken from:

a. An order denying a petition for relief or any MODES OF APPEAL
similar motion seeking relief from judgment; 1. Ordinary appeal – Rule 40 and 41
b. An interlocutory order; a. Notice of appeal
c. An order disallowing or dismissing an b. Record on appeal
appeal; 2. Petition for review – Rule 42
d. An order denying a motion to set aside a 3. Petition for review on certiorari – Rule 45
judgment by consent, confession or
compromise on the ground of fraud, mistake PETITION FOR
ORDINARY PETITION FOR
or duress, or any other ground vitiating REVIEW ON
APPEAL REVIEW
consent; CERTIORARI
e. An order of execution; Appeal by writ
Rule 42 Rule 45
f. A judgment or final order for or against one of error
or more of several parties or in separate Case decided by
claims, counterclaims, cross-claims and Case is decided Case decided by
RTC in the
third-party complaints, while the main case by RTC in its the RTC, CA,
exercise of its
is pending, unless the court allows an appeal original CTA, and
appellate
therefrom; and jurisdiction Sandiganbayan
jurisdiction
g. An order dismissing an action without Petition for
prejudice. Appealed to the Appealed to the
review with the
CA SC
CA
NOTE: AM 07-7-12-SC removed from the File verified
original list “an order denying a motion for File a verified petition for
new trial or reconsideration.” petition for review on
File notice of review with CA. certiorari with
NOTE, HOWEVER: Rule 37, Sec. 9 which appeal or Pay docket and the SC.
states that no appeal can be made from an record of appeal lawful fees and Pay docket and
order denying MR or MNT. with court of P500 as deposit lawful fees and
origin and give for costs with the P500 for costs.
Only final judgments or orders can be appealed as a copy to CA. Submit proof of
distinguished from interlocutory judgments or orders adverse party Furnish RTC and service of a copy
which are not appealable. adverse party a to the lower
copy of such court and
adverse party
Final Order Within 15 days Within 15 days Within 15 days
Interlocutory Order
from notice of from notice of from notice of
Disposes of the matter Does not dispose of a judgment for decision to be judgment or
in its entirety, leaving case completely but notice of appeal reviewed or from order of denial
87
 and 30 days for denial of a MFR of MFR or MFNT QJA to CA
records on or MFNT The CA may
appeal grant a 15 day
15 days from notice of extension. No
the award, judgment, further
final order or extension shall Fresh period
ISSUES TO BE RAISED ON APPEAL resolution or from date be granted to appeal
of last publication if except for the from denial
Limited to cognizable judgments/issues. required by law OR most MR or MNT
from denial of MR or compelling
The appellate court has no jurisdiction to review a MNT reasons and in
judgment which is immediately final and executory by no case longer
express provision of law. [Republic v. Bermudez-Lorino than 15 days.
(2005)] RTC to SC
RTC to CA to SC
Rationale: Appeal is merely a privilege conferred by law CA to SC
upon the litigants. 15 days from notice of The SC may
Fresh period
judgment or final order grant a 30 day
A party cannot change the theory on appeal. Only issues to appeal
OR from denial of extension for
pleaded in the lower court and properly raised may be from denial
petitioner’s MR or justifiable
resolved by the appellate court. [Medina v. CA (1992)] MR or MNT
MNT. reasons.

However, issues which are inferred from or necessarily The fresh period rule shall apply to:
connected with the issue properly raised and pleaded 1. Rule 40 governing appeals from the Municipal
may be resolved by the appellate court. [Espina v. CA Trial Courts to the Regional Trial Courts;
(1992)] 2. Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals;
3. Rule 43 on appeals from quasi-judicial agencies
PERIOD OF APPEAL to the Court of Appeals; and
4. Rule 45 governing appeals by certiorari to the
EFFECT OF Supreme Court. The new rule aims to regiment or
PERIOD TO APPEAL EXTENSIONS
MR or MNT make the appeal period uniform, to be counted
MTC to RTC from receipt of the order denying the motion for
By notice of appeal; new trial, motion for reconsideration (whether
Interrupts
within 15 days from No extensions full or partial) or any final order or resolution.
period to
notice of judgment or allowed [Neypes v. CA, (2005)]
appeal
final order
By record of appeal; Being procedural in nature, Neypes is deemed to be
within 30 days from applicable to actions pending and undetermined at
notice of judgment or the time of its effectivity and is thus retroactive in
final order that sense and to that extent. [First Aqua Sugar v. BPI
RTC to CA (2007)]
By notice of appeal;
Interrupts
Within 15 days from No extensions
period to PERFECTION OF APPEAL
notice of judgment or allowed
appeal
final order
By record of appeal; Perfection of an appeal in the manner and within the
within 30 days from period laid down by law is mandatory and jurisdictional.
notice of judgment or [Balgami v. CA (2004)]
final order
MTC to RTC to CA Effect of Failure to Perfect Appeal
The CA may 1. Defeats a party’s right to appeal.
grant a 15 day 2. Precludes appellate court from acquiring
extension. jurisdiction.
No further
15 days from notice of extension shall Fresh period
the judgment or final be granted to appeal
order OR from denial except for the from denial
of MR or MNT most MR or MNT
compelling
reasons and in
no case longer
than 15 days.
88
 APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS (RULE 40)
OUTLINE OF PROCEDURE (Rule 40, Sec. 7)
Appeal decision of MTC by filing notice of appeal and pay
within 15 days from receipt of judgment
15 days from perfection of appeal,
MTC clerk transmits record to RTC
Notice to parties that an appeal is being taken
from the decision of the MTC
Within 15 days from notice of appeal:
1. Appellant submits memorandum to the RTC
2. Appellee files his own memorandum 15 days from
receipt of appellant’s memorandum
Court acts on the appeal
If uncontested, Any party may appeal
judgment is entered in by filing a petition for
the book of entries review with the CA
WHERE APPEAL IS TAKEN
It is taken to the RTC exercising jurisdiction over the area
to which the MTC pertains. (Rule 40, Sec. 1)
WHEN TO APPEAL (Rule 40, Sec. 2)
1. If by notice of appeal, within 15 days after notice
to appellant of judgment or final order appealed
from
2. If record of appeal is required, within 30 days
from notice of judgment or final order
3. Period of appeal shall be interrupted by a timely
motion for new trial or reconsideration
NOTE: The fresh 15 day period rule applies.
HOW TO APPEAL (Rule 40, Sec. 3)
By Notice of Appeal
1. File a notice of appeal with the trial court that
rendered the judgment or final order appealed
from
2. The notice of appeal must indicate the parties,
the judgment or final order or part thereof
appealed from; the material date showing
timeliness of appeal
3. A copy served on the adverse party; and
4. Payment in full of docket fees and other lawful
fees
By Record on Appeal
1. Record on appeal is required for the following
cases:
a. Special proceedings
89
b. In such other cases where multiple appeals
are allowed
2. Form and contents of the record on appeal: (Rule
41, Sec. 6)
a. Within 15 days from perfection of appeal,
clerk of court or the branch clerk of the lower
court shall transmit to the RTC:
(1) Original record or record on appeal
(2) Together with transcripts and exhibits
b. Clerk shall make a certification that the
documents are complete
c. Clerk shall also furnish the parties a copy of
his letter of transmittal of the records to the
appellate court
3. Copy is served on the adverse party
4. Payment in full of docket fees and other lawful
fees
PERFECTION OF APPEAL
Since appeals from inferior courts may now be either by
notice of appeal or record on appeal, the rules on the
perfection and the effect thereof are the same. See Sec. 9,
Rule 41
APPEAL FROM ORDERS DISMISSING THE CASE
WITHOUT TRIAL; LACK OF JURISDICTION (Rule 40,
Sec. 8)
Two Scenarios:
1. If the MTC dismissed the case without trial on the
merits, the RTC may:
a. AFFIRM, if the ground of dismissal is lack of
jurisdiction over the subject matter
(1) If the RTC has jurisdiction, it shall try the
case on the merits as if the case was
originally filed therein
b. REVERSE, in which case, it shall remand the
case for further proceedings
2. If the case was tried on the merits by the MTC
without jurisdiction over the subject matter:
a. The RTC shall NOT dismiss the case if it has
original jurisdiction
b. If it has original jurisdiction, the RTC shall
decide the case and admit amended
pleadings or additional evidence
APPLICABILITY OF RULE 41 - The other provisions of
Rule 41 shall apply to appeals provided for herein insofar
as they are not inconsistent with or may serve to
supplement the provisions of this Rule.
 APPEAL FROM THE REGIONAL TRIAL
COURTS (RULE 41)
MODES OF APPEAL: There are three modes of appeal
from judgments or final orders of the RTC:
1. ORDINARY APPEAL or appeal by writ of error,
where judgment was rendered in a civil or
criminal action by the RTC in the exercise of its
original jurisdiction
a. This mode of appeal, governed by Rule 41, is
taken to the CA on questions of fact or mixed
questions of fact and law
2. PETITION FOR REVIEW, where judgment was
rendered by the RTC in the exercise of its
appellate jurisdiction
a. This mode of appeal, covered by Rule 42, is
brought to the CA on question of fact, of law,
or mixed questions of fact and law
3. PETITION FOR REVIEW ON CERTIORARI, or
appeal by certiorari to the SC
a. This mode of appeal, provided for by Rule 45,
is brought to the SC from the decision of the
RTC in the exercise of its original jurisdiction
and only on questions of law
HOW ORDINARY APPEAL VIA RULE 41 IS MADE:
Appeal via Rule 41 presupposes that:
1. The RTC rendered the judgment or final order in
the civil action or special proceeding in the
exercise of its ORIGINAL jurisdiction; and
2. That the appeal is taken to the CA on:
a. Questions of fact or
b. Mixed questions of fact and law
Notice of Appeal – Filed with the court which rendered the
judgment or final order appealed from. A copy is served
on the adverse party. (Rule 41, Sec. 5)
Contents of the Notice of Appeal:
1. Parties to the appeal
2. Judgment or final order or part thereof
appealed from
3. The court to which the appeal is being taken;
and
4. The material dates showing the timeliness of
the appeal
Record on Appeal – Done in special proceedings and other
cases where multiple or separate appeals are allowed.
This is filed and served in the same manner as notice of
appeal.
Contents of the Record (Rule 41, Sec. 6)
1. Full names of all the parties to the
proceedings shall be stated in the caption of
the record on appeal
2. It shall include the judgment or final order
from which the appeal is taken,
90
3. In chronological order, copies of only such
pleadings, petitions, motions, and all
interlocutory orders as are related to the
appealed judgment or final order
4. For the proper understanding of the issue
involved
5. Together with such data as will show that the
appeal was perfected on time
Approval of the Record on Appeal (Rule 41, Sec.
7) – Upon filing of the record for approval and if
no objection is filed by the appellee within 5 days
from receipt of a copy thereof, the trial court
may:
1. Approve it as presented; or
2. Direct its amendment by the inclusion of any
omitted matters which are deemed essential
Joint Record on Appeal (Rule 41, Sec. 8) – Where
both parties are appellants, they may file a joint
record on appeal.
PERIOD TO APPEAL (Rule 41, Sec. 2)
1. 15 days from notice of judgment or final order
appealed from
2. 30 days from notice of judgment or final order
where a record on appeal is required
3. 48 hours from notice of judgment or final order
appealed from in habeas corpus cases
Reckoning point of reglementary period: Period for filing
the appeal should be counted from the date when the
party’s counsel received a copy of the judgment or final
order
When a party is represented by a counsel, service
of process must be made on counsel, not on party
(Fajardo v. CA)
Effect of Motions for New Trial and Reconsideration –
Originally, the period to appeal is interrupted by a timely
motion for new trial and reconsideration. However, with
the Neypes doctrine, a party has a fresh 15-day period
from a denial of the motion to perfect an appeal.
Extension of Period to Appeal
Period to appeal may be extended but such extension is
addressed to the sound discretion of the court (Socco v.
Garcia)
The mere filing and pendency of motion for extension to
perfect appeal does not suspend the running of the
reglementary period (Bello et al., v. Fernandez)
PLEADINGS FILED (See Rule 44, Procedure in the CA)
Appellant’s Brief
1. Filed within 45 days from receipt of notice of
clerk that all evidence is attached to record
 2. Follow the Efficient Use of Paper Rule, one 1. If appeal is by notice of appeal – it is deemed
original properly marked and 2 copies with perfected as to him upon the filing of the notice of
annexes appeal in due time
3. Attach proof of service to adverse party 2. If appeal is by record on appeal – it is perfected
as to him with respect to the subject matter
Grounds for dismissal with respect to appellant’s thereof, upon approval of the record on appeal
brief: filed in due time
1. Failure to file brief on time
2. Failure to make specific assignment of errors Effect of Perfected Appeal
in his brief 1. In appeals by notice of appeal:
a. Court loses jurisdiction over the case upon
Contents: perfection of appeal filed in due time and
1. Subject index expiration of the time to appeal of the other
2. Assignment of Errors parties
3. Statement of the Case b. NOTE: This rule applies individually and to
4. Statement of Facts each of the parties since the timeliness of
5. Statement of Issues their recourse for appellate remedy depends
6. Arguments on when they respectively received a copy of
7. Relief the judgment or final order
8. Copy of judgment or final order appealed
from 2. In appeals by record on appeal:
a. Court loses jurisdiction only over the subject
Appellee’s Brief: matter thereof upon approval of the records
1. Filed within 45 days from receipt of appellant’s on appeal filed in due time and the expiration
brief of the time to appeal of the other parties
2. Manner of filing is similar to that in appellant’s b. NOTE: The effect is limited to the subject
brief matter only. Jurisdiction over the case is still
with the trial court
Contents:
1. Subject index Residual Powers/Jurisdiction of the RTC – After losing
2. Statement of Facts and Counter-Statement of jurisdiction but prior to the transmittal of the original
Facts record on appeal, the RTC may:
3. Arguments 1. Order execution pending appeal under Rule 39,
Sec. 2 (motion for execution was filed before
Appellant’s Reply Brief expiration of the period to appeal)
1. Filed within 20 days from receipt of appellee’s 2. To issue orders for preservation of the rights of
brief the parties which do not involve matters litigated
2. This is not mandatory as it is optional on the part by appeal
of the appellant 3. To approve compromise prior to the transmittal
of the record
Extension of Time for Filing Briefs: 4. Permit appeal by an indigent
1. General rule: Not allowed 5. Allow withdrawal of the appeal
2. Exception: For good reasons and only if motion
for extension is filed before expiration of time The concept of residual jurisdiction of the trial court is
sought to be extended 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. There is no residual
PERFECTION OF APPEAL jurisdiction to speak of where no appeal or petition has
even been filed (Fernandez v. CA).
Payment of Docket Fees (Rule 41, Sec. 4)

Within the period for taking an appeal, the appellant shall
pay to the clerk of the court which rendered the judgment
or final order appealed from, the full amount of the
appellate court docket and other lawful fees. Proof of
payment of said fees shall be transmitted to the appellate
court together with the original record or the record on
appeal.
Payment of docket fees in full is mandatory and is a
condition sine qua non for the perfection of an appeal.
Perfection of Appeal (Rule 41, Sec. 9)
Duty of Clerk Upon Perfection of Appeal (Rule 41, Sec. 10)
Within 30 days after perfection of all appeals, the RTC
clerk shall:
1. Verify completeness of original record or record
on appeal and make certification as to its
correctness
2. Verify completeness of records that will be
transmitted to appellate court
3. If found to be incomplete:
a. Take such measures as may be required to
complete records
b. If efforts to complete records fail:

91
 (1) Indicate in his letter of transmittal the
exhibits or transcripts not included
(2) Reasons for their transmittal
(3) Steps taken or that could be taken to
have them available
4. Transmit the records to appellate court and
furnish the parties with copies of his letter of
transmittal
DISMISSAL OF APPEAL (Rule 41, Sec. 13)
When can the RTC dismiss the appeal?
1. Prior to transmittal of original record to appellate
court; or
2. Prior to transmittal of record on appeal to the
appellate court
How done: By the court, motu proprio, or on motion to
dismiss appeal by a party
Grounds:
1. Appeal was taken out of time
2. Non-payment of docket and other lawful fees
within the reglementary period
NOTE: The dismissal of the appeal in RTC is
limited only to these two grounds
92
PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS TO THE COURT OF
APPEALS (RULE 42)
Under this mode of appeal, it is NOT a matter of right but
is a matter of DISCRETION on the part of the CA on
whether or not to entertain the appeal.
Appeal via Rule 42 is proper when one appeals from a
decision of the RTC in the exercise of its APPELLATE
jurisdiction.
Appeal under Rule 42 may be on either questions of fact
or of law or on mixed questions of both
HOW APPEAL IS TAKEN; PERIOD OF APPEAL (Rule 42,
Sec. 1)
If a party desires to appeal from a decision of the RTC in its
appellate jurisdiction:
1. File a VERIFIED petition for review with the CA
a. Within 15 days from notice of decision, or
b. Within 15 days from notice of denial of
petitioner’s motion for new trial or
reconsideration
2. Pay the corresponding docket fee and other
lawful fees and depositing P500 for costs
3. Furnish the RTC and adverse party a copy of the
petition
Extension of period: - The CA may grant an additional 15
days within which to file the petition for review
- Conditions:
1. There was a motion filed to this effect
2. Payment in full of docket fees and other
lawful fees as well as deposit for costs
3. To be done within the reglementary period
No further extension may be granted EXCEPT for
the most compelling reason and in no case to
exceed 15 days.
FORM AND CONTENTS OF THE PETITION FOR REVIEW
(Rule 42, Sec. 5)
Form of the petition:
1. Original copy is filed intended for the court,
properly marked and 2 copies with their annexes
(Efficient Use of Paper Rule)
2. Accompanied by clearly legible duplicate
originals or true copies of judgments or final
orders of both lower courts certified correct by
the RTC clerk
3. Also with pleadings and other material portions
of record as would support the allegations of the
petition
Contents of the petition:
1. Full names of the parties without impleading the
lower courts or judges thereof
2. Specific material dates showing timeliness of
appeal
 3. Concise statement of:
a. Matters involved If upon the filing of the comment or such other pleadings
b. Issues raised as the court may allow or require, or after the expiration
c. Specification of errors of fact or law, or both of the period for the filing thereof without such comment
d. Reasons or arguments relied upon or pleading having been submitted, the Court of Appeals
4. A certificate of non-forum shopping must also be finds prima facie that the lower court has committed an
attached error of fact or law that will warrant a reversal or
modification of the appealed decision, it may accordingly
EFFECT OF FAILURE TO COMPLY WITH give due course to the petition.
REQUIREMENTS (Rule 42, Sec. 3)
PERFECTION OF APPEAL (Rule 42, Sec. 8)
Failure to comply with any of the following requirements
shall be sufficient ground for DISMISSAL Appeal is deemed perfected as to PETITIONER upon:
1. Payment of docket and other lawful fees 1. Timely filing of the petition
2. Payment of docket and lawful fees
NOTE: In petitions for review under Rules 42, 43,
and 45, the docket fee is paid in the appellate Jurisdiction of the RTC
courts 1. RTC loses jurisdiction upon:
a. Perfection of appeals filed in due time; and
2. Deposit for costs b. Expiration of the time to appeal of other
3. Proof of service of petition parties
4. Contents of the documents, which should 2. RTC may exercise residual jurisdiction before the
accompany the petition CA gives due course to the petition

ACTION ON PETITION (Rule 42, Sec. 4)
The CA may:
1. Require respondent to file a comment on the
petition not a motion to dismiss within 10 days
from notice; or
2. Dismiss the petition if it finds the same to be:
a. Patently without merit
b. Prosecuted manifestly for delay; or
c. The questions raised therein are too
unsubstantial to require consideration
General Rule: Perfected appeal stays the challenged
judgment or final order
Exceptions:
1. Unless the CA, law, or Rules, provide
otherwise
2. Also in civil cases decided under the Rule on
Summary Procedure; Stay of judgment is not
applicable here since these are immediately
executory
SUBMISSION OF DECISION (Rule 42, Sec. 9)

REMEMBER: Under this Rule, appeal is discretionary on
the CA which may give its due course only when the
petition shows prima facie that the lower court has
committed error.
COMMENT BY RESPONDENT (Rule 42, Sec. 5)
If the petition is given due course
1. Case may be set for oral argument, or
2. The parties may be required to submit
memoranda within 15 days from notice
3. Case shall be deemed submitted for decision
upon filing of last pleading or memoranda

Form of Comment:
1. An original is filed, properly marked, together
with 2 copies with their annexes (Efficient Use of
Paper Rule)
2. Accompanied by certified true copies of such
material portions of the record referred to
therein
3. Together with other supporting papers
4. Copy of the comment served on petitioner

Contents of Comment: The comment shall

1. State whether or not he accepts the statement of
matters involved in the petition
2. Point out such insufficiencies or inaccuracies as
he believes exist in petitioner’s statement of
matters but without repetition
3. Reasons why the petition should not be given due
course

DUE COURSE (Rule 42, Sec. 6)

93
 APPEALS FROM QUASI-JUDICIAL AGENCIES
TO THE COURT OF APPEALS (RULE 43)
SCOPE
Appeals from awards, judgments, final orders or
resolution of or authorized by any quasi-judicial agency
(QJA) in the exercise of its quasi-judicial functions
A quasi-judicial agency or body is an organ of government
other than a court and other than a legislature, which
affects the rights of private parties though either
adjudication or rule-making
NOTE: A party adversely affected by a decision or ruling
of the CTA en banc may file with the SC a verified petition
for review on certiorari via Rule 45 (Sec. 12, RA 9282 and
AM 07-7-12-SC)
The CTA is no longer a quasi-judicial agency under RA
9282, as of April 7, 2004.
QJAs covered by Rule 43:
1. Civil Service Commission
2. Securities and Exchange Commission
3. Office of the President
4. Land Registration Authority
5. Social Security Commission
6. Civil Aeronautics Board
7. Bureau of Patents Trademarks and Technology
Transfer
8. National Electrification Administration
9. Energy Regulatory Board
10. National Telecommunications Commission
11. Department of Agrarian Reform under RA 6657
12. GSIS
13. Employees Compensation Commission
14. Agricultural Inventions Board
15. Insurance Commission
16. Philippine Atomic Energy Commission
17. Board of Investment
18. Construction Industry Arbitration Commission,
and
19. Voluntary arbitrators authorized by law
WHERE TO APPEAL (Rule 43, Sec. 3)
Appeal is taken to the CA on questions of fact, of law, or
mixed questions of fact and law.
PERIOD TO APPEAL (Rule 43, Sec. 4)
Period to appeal is 15 days from:
1. Notice of award, judgment, final order, or
resolution OR
2. Date of publication, if publication is required by
law for its effectivity, OR
3. Denial of petitioner’s MNT or MFR
Extension of Period: Additional 15 days only
94
1. Extension is granted upon motion for extension
and payment of full docket fees, both within the
reglementary period
2. No further extension is allowed except for the
most compelling reasons and in no case shall
exceed 15 days
HOW APPEAL IS TAKEN (Rule 43, Sec. 5)
1. A verified petition for review is filed with the CA
following the Efficient Use of Paper Rule
a. Attach proof of service of a copy to the
adverse party and to the court or agency a
quo
2. Upon filing, pay the docket and lawful fees as well
as a P500 deposit for costs
a. Payment is made to the CA clerk
b. Exemption from payment may be granted by
the CA by filing a verified motion for
exemption; if denied, party must pay within
15 days from notice of denial
CONTENTS OF THE PETITION: (Rule 43, Sec. 6)
1. Statement of full names of parties to the case
without impleading court or agencies
2. Concise statement of facts and issues involved
and grounds relied upon for review
3. Accompanied by:
a. Clearly legible duplicate original or a
certified true copy of award, judgment, final
order, or resolution appealed from
b. Certified true copies of such material
portions of record referred to in the petition
and other supporting papers
4. Certificate of non-forum shopping
5. Statement of specific material dates showing
timeliness of appeal
EFFECT OF FAILURE TO COMPLY: Dismissal (Rule 43,
Sec. 7) for failure to comply with the following:
1. Payment of docket and lawful fees
2. Deposit for costs
3. Proof of service of petition
4. Contents of petition
5. Documents which should accompany the petition
ACTION ON THE PETITION (Rule 43, Sec. 8)
The CA may:
1. Require respondent to file Comment within 10
days from notice
2. Dismiss the petition if CA finds the same to be:
a. Patently without merit
b. Prosecuted manifestly for delay, or
c. Questions raised are too unsubstantial to
require consideration
FORM AND CONTENTS OF COMMENT (Rule 43, Sec. 9)
Form of comment:
1. Filed within 10 days from notice following the
Efficient Use of Paper Rule
 2. Accompanied by the following documents:
a. Clearly legible certified true copies of such
material portions of the record referred to
therein
b. And such other supporting documents
3. Copy of Comment is served on petitioner with
proof of such service filed with the CA
Contents of Comment: The comment shall:
1. Point insufficiencies or inaccuracies in
petitioner’s statement of facts and issues
2. State reasons why petition should be denied or
dismissed
DUE COURSE (Rule 43, Sec. 10)
CA may give due course if CA finds prima facie that court
or agency has committed errors of fact or law that would
warrant reversal or modification
If not, then the CA may dismiss the same.
TRANSMITTAL OF RECORDS (Rule 43, Sec. 11)
Within 15 days from notice that petition has been given
due course, the CA may:
1. Require court or agency concerned to transmit
original or legible certified true copy of entire
record of proceeding under review
2. Require or permit subsequent correction or
addition to record
EFFECT OF APPEAL (Rule 43, Sec. 12)
General Rule: Appeal shall not stay the award, judgment,
final order or resolution sought to be reviewed
Exception: When the CA shall direct otherwise upon such
terms as it may deem just
SUBMISSION FOR DECISION (Rule 43, Sec. 13)
If petition is given due course, the CA may set the case for
oral argument or require parties to submit memoranda
within 15 days from notice.
Upon filing of last pleading or memorandum required,
case is deemed submitted for decision.
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE
CTA
A party adversely affected by a decision or ruling of the
CTA en banc may file with the Supreme Court a verified
petition for review on certiorari pursuant to Rule 45. (Sec.
19, RA 1125 as amended by RA 9282)
95
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE
COMELEC
Unless otherwise provided by law, or by any specific
provisions in these Rules, any decision, order or ruling of
the Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty (30) days
from its promulgation. (Rule 37, Sec. 1, COMELEC Rules of
Procedure)
Decisions in appeals from courts of general or limited
jurisdiction in election cases relating to the elections,
returns, and qualifications of municipal and barangay
officials are not appealable. (Rule 37, Sec. 2, COMELEC
Rules of Procedure)
Decisions in pre-proclamation cases and petitions to deny
due course to or cancel certificates of candidacy, to
declare a candidate as nuisance candidate or to disqualify
a candidate, and to postpone or suspend elections shall
become final and executory after the lapse of five (5) days
from their promulgation, unless restrained by the
Supreme Court. (Rule 37, Sec. 3, COMELEC Rules of
Procedure)
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF
THE OMBUDSMAN
The following decisions are unappealable:
1. In administrative cases where respondent is
absolved of the charge
2. In case of conviction, where penalty imposed is
public censure or reprimand, or suspension of
not more than one month or a fine equivalent to
one month salary (AO 7, Rule III, Sec. 7)
Jurisdiction of the CA
1. CA has jurisdiction over orders, directives, and
decisions of the Office of Ombudsman in
administrative disciplinary cases only
2. It cannot review orders, directives, decisions in
criminal and non-administrative cases
Jurisdiction of the SC
1. In criminal cases, ruling of Ombudsman shall be
elevated to the SC via Rule 65
2. In cases in which it is alleged that the
Ombudsman has acted with grave abuse of
discretion amounting to lack or excess of
jurisdiction, a special civil action of
certiorariunder Rule 65 may be filed with this
Court to set aside the Ombudsman’s order or
resolution. [Nava v. NBI (2005)]
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE
NLRC
Rule 43, Sec. 2 states that Rule 42 shall not apply to
judgments or final orders issued under the Labor Code.
The law no longer provides for an appeal from decisions
of the LA or from the NLRC. Mode of review from said
decisions is the special civil action for Certiorari under APPEAL BY CERTIORARI TO THE SUPREME
Rule 65 in the CA. COURT (RULE 45)
NLRC judgments and final orders or resolutions are now
reviewable, in the first instance, by the Court of Appeals CERTIORARI AS A MODE OF APPEAL (RULE 45) AND
on certiorari under Rule 65, but those of the Employees CERTIORARI AS A SPECIAL CIVIL ACTION (RULE 65)
Compensation Commission should be brought to the
Court of Appeals through a petition for review under this
CERTIORARI AS AN
Rule. Also, appeals from the Office of the Ombudsman in APPEAL BY CERTIORARI
ACTION
administrative disciplinary cases are now covered by this
Rule 45 Rule 65
Rule. [Fabian v. Desierto (1998)]
Petition raises the issue as
Based on questions of law
to whether the lower court
which appellant desires
acted without or in excess
the appellate court to
of jurisdiction or with
resolve
grave abuse of discretion
May be directed against an
interlocutory order of the
Involves review of court prior to appeal from
judgment, award or final the judgment or where
order on merits there is no appeal or any
other plain, speedy, or
adequate remedy
May be filed not later than
Must be made within the 60 days from notice of
reglementary period of judgment, order or
appeal resolution sought to be
assailed
Does not stay the
Stays the judgment, challenged proceedings
award, or order appealed (unless a writ of
from preliminary injunction or
TRO is issued)
The parties are the
Petitioner and respondent aggrieved party against the
are original parties to the lower court or quasi-
action judicial agency as
prevailing parties
A filing of a MR is a
Prior filing of MR not condition precedent,
required subject to certain
exceptions
Higher court exercises
Appellate court is in the original jurisdiction under
exercise of appellate its power of control and
jurisdiction and power of supervision over
review proceedings of lower
courts

A party desiring to appeal by certiorari from a judgment,

final order or resolution of the CA, the Sandiganbayan, the
CTA, the RTC or other courts, whenever authorized by
law, may file with the Supreme Court a verified petition
for review on certiorari.

The petition may include an application for a writ of

preliminary injunction or other provisional remedies and
shall raise only questions of law, which must be distinctly
set forth. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or
proceeding at any time during its pendency. (Rule 45, Sec.
1, as amended by A.M. 07-7-12-SC)

96
OUTLINE OF PROCEDURE facts of trial court, as affirmed on appeal by the CA, are
conclusive on the court (Boston Bank of the Philippines v.
RTC, Sandiganbayan, CTA en banc, or CA renders a decision Manalo)

It has to be emphasized that it is not the duty of the SC to

Any party files a petition for review on certiorari
Within 15 days from notice
of final judgment or order of lower court
or notice of denial of motion for reconsideration or new trial
review, evaluate, and weigh the probative value of the
evidence adduced before the lower courts (Frondarina v.
Malazarte)

APPEAL FROM RTC TO SC UNDER RULE 45

Appellant serves copies of petition on adverse parties
And to the lower court,
And pay the corresponding docket fees
SC may dismiss the petition or require appellee to comment
To appeal under Rule 45, RTC must render judgment in
the exercise of its original jurisdiction
If the RTC is in exercise of its appellate jurisdiction,
proper remedy is to appeal to the CA via Rule 42 even if
only questions of law are raised

If the other party had already taken an appeal to the CA to

question the RTC decision, the property remedy of
If given due course, parties may submit memoranda petitioner is simply ordinary appeal to the CA as well
(First Phil. International Bank v. CA).

Grave abuse of discretion is not an allowable ground

SC may affirm, reverse, or modify judgment of lower court
under Rule 45 (Martires v. CA).

PROPRIETY OF RULE 45 AS A MODE OF APPEAL

APPEAL FROM CA IS ALWAYS BY RULE 45
Appeals to the SC Can be taken from a judgment or final
order or resolution of the CA, Sandiganbayan, CTA en Appeal under Rule 45 is the proper review of decisions of
banc, RTC or such other courts as may be authorized by the CA even in special civil actions.
law
Any alleged errors committed by it in the exercise of
Only questions of law are allowed. Whether an appeal jurisdiction would be errors of judgment which are
involves only questions of law or both questions of law reviewable by timely appeal and not by special civil action
and fact is best left to the determination of an appellate of certiorari.
court and not by the court which rendered the decision
appealed from (PNB v. Romillo, etc., et al.) Rule 45 is clear that decisions, final orders, or resolutions
of the CA in any case, regardless of the nature of the
QUESTIONS OF LAW QUESTIONS OF FACT action or proceedings involved, may be appealed to the SC
Doubt or difference as to by filing a petition for review, which would but be a
Doubt or controversy as to the truth or falsehood of continuation of the appellate process over the original
what the law is on certain facts, or as to probative case.
facts value of the evidence
presented CONCLUSIVENESS OF FINDINGS OF FACT
If the appellate court can
The determination
determine the issue General Rule: The findings of fact of the CA are final and
involves evaluation or
without reviewing or conclusive and cannot be reviewed on appeal to the SC
review of evidence
evaluating the evidence
Query involves the Exceptions: CA’s findings of fact may be reviewed by the
calibration of the whole SC on appeal by certiorari when:
evidence considering 1. Conclusion is a finding grounded entirely on
mainly the credibility of speculations, surmises or conjectures [Joaquin v.
Can involve questions of Navarro (1953)].
witnesses, existence, and
interpretation of law with 2. Inference made is manifestly mistaken, absurd or
relevancy of specific
respect to certain set of impossible [Luna v. Linatok (1942)].
surrounding
facts 3. There is grave abuse of discretion in the
circumstances and relation
to each other and the appreciation of facts [Buyco v. People (1954)].
whole probabilities of the 4. Judgment is based on a misapprehension of facts
situation [De la Cruz v. Sosing (1953).
5. The Court of Appeal’s findings of fact are
The SC is not a trier of facts, and is not to review or conflicting [Casica v. Villaseca (1957)].
calibrate the evidence on record. Moreover, findings of
97
 6.The Court of Appeals, in making its findings, went
beyond the issues of the case and the same is
contrary to the admissions of both appellant and
appellee [Nakpil & Sons v. CA (1986)].
7. The Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties
and which, if properly considered, would justify a
different conclusion [Abellana v. Dosdos (1965)].
8. The Court of Appeal’s findings of fact are contrary
to those of the trial court, or are mere
conclusions without citation of specific evidence,
or where the facts set forth by the petitioner are
not disputed by the respondent, or where the
findings of fact of the Court of Appeals are
premised on absence of evidence but are
contradicted by the evidence of record [Manlapaz
v. CA (1987)].
PERIOD OF APPEAL: (Rule 45, Sec. 2)
or final order or resolution certified by the clerk
of court and court a quo
5. Certificate of non-forum shopping
GROUNDS FOR DENIAL OF PETITION (Rule 45, Sec. 5)
1. Failure of petitioner to comply with:
a. Payment of docket or other lawful fees
b. Deposit for costs
c. Proof of Service; and
d. Contents of and documents which would
accompany the petition
2. Appeal is without merit
3. Is prosecuted manifestly for delay
4. That the questions raised are so unsubstantial as
to require consideration
NOTE: SC may dismiss the petition motu proprio

Time for Filing: 15 days from

1. Notice of judgment, final order, or resolution
appealed from, or
2. Notice of denial of motion for new trial or
reconsideration filed in due time after notice of
judgment
REVIEW IS DISCRETIONARY (Rule 45, Sec. 6)
Appeal to the SC is NOT a matter of right. It will be
granted only when there are special and important
reasons therefor.

The Neypes doctrine is also applicable in Rule 45.
Extension of Period: 30 days upon
1. Motion duly filed and served; and
2. Payment of docket and lawful fees and deposit
for costs
3. And for justifiable reasons
FORM OF PETITION
1. The petition must be VERIFIED
2. Following the Efficient Use of Paper Rule:
a. One original, properly marked, and 4 copies
b. If the case is referred to En Banc, 10
additional copies is filed
3. Payment of docket and other lawful fees and
deposit of P500 for costs is made with the SC
Clerk at the time of filing
4. Proof of service of the petition to the lower court
and adverse party are attached
Some indications of the character of reasons which will be
considered:
1. When the court a quo has decided the question of
substance, not theretofore determined by the SC,
or has decided it in a way probably not in accord
with law or with the applicable provisions of the
SC; or
2. Court a quo has so far departed from accepted
and usual course of judicial proceedings, or so far
sanctioned such departure by a lower court, as to
call for an exercise of power of supervision
ELEVATION OF RECORDS: (Rule 45, Sec. 8)
If the petition is given due course, the Supreme Court
may require the elevation of the complete record of the
case or specified parts thereof within fifteen (15) days
from notice

CONTENTS OF PETITION (Rule 45, Sec. 4)

1. State full names of the parties
a. Appealing party = as Petitioner
b. Adverse party = as Respondent
c. Do not implead lower courts or judges
2. Indicate material dates showing:
a. When notice of judgment or final order or
resolution was received
b. When a motion for new trial or
reconsideration, if any, was filed and when a
denial thereof was received
3. Concise statement of:
a. The matters involved
b. Reasons or arguments relied on
4. Accompanied by a clearly legible duplicate
original, or a certified true copy of the judgment
98
 GROUNDS FOR DISMISSAL OF APPEAL
DISMISSAL BY THE CA (RULE 50)

An appeal may be dismissed by the CA, on its own motion,

or on that of the appellee on certain grounds.

Grounds for Dismissal as provided in Sec. 1, Rule 50

1. Failure of record on appeal to show on its face
that appeal was taken within the period fixed by
Rules
2. Failure to file notice of appeal or record on
appeal within prescribed period
3. Failure of appellant to pay docket and other
lawful fees as provided in Sec. 4, Rule 41
4. Unauthorized alterations, omissions, or additions
in approved record on appeal as provided in Sec.
4, Rule 44
5. Failure of appellant to serve and file required
number of copies of his brief or memorandum
within time provided by Rules
6. Absence of specific assignment of errors in the
appellant’s brief, or of page references to record
as required in Sec. 13, (a), (c), (d), (f), Rule 44
7. Failure of appellant to take necessary steps for
correction or completion of record within time
limited by the court in its order
8. Failure of appellant to appear at preliminary
conference under Rule 48 or comply with orders,
circulars, directives of the court without
justifiable cause
9. Fact that the order or judgment appealed from is
not appealable

Other Grounds
1. By agreement of the parties (i.e. amicable
settlement)
2. Where appealed case has become moot or
academic
3. Where appeal is frivolous or dilatory

DISMISSAL BY THE SC (RULE 56)

The appeal may be dismissed motu proprio or on motion

of the respondent on the following grounds:
1. Failure to appeal within reglementary period
2. Lack of merit of petition
3. Failure to pay docket and lawful fees and deposit
4. Failure to comply with requirements on proof of
service, contents, and documents accompanying
petition
5. Failure to comply with circular, directive, or
order of SC without justifiable cause
6. Error in choice of mode of appeal
7. The case is not appealable to the SC

99
 COMPARATIVE TABLE ON THE MODES OF APPEAL
WHEN PROPER
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
ORDINARY APPEAL PETITIONS FOR REVIEW
Matter of Right; Filed with the court of origin Discretionary; No records are elevated unless the court decrees it
All records are elevated from court of origin Filed with the appellate court
Appeal from a decision of the Appeals to the SC from a
Appeal from a judgment or final
RTC in the exercise of its original judgment or final order or
order of a MTC
jurisdiction resolution of the CA,
Sandiganbayan, CTA en banc,
Appeals from awards, judgments, RTC (original jurisdiction) or
Appeal from a decision of the final orders or resolution of or such other courts as may be
RTC rendered in the exercise of authorized by any quasi-judicial authorized by law
Rule 41 provisions shall apply to Rule 40 if not consistent with Rule its appellate jurisdiction agency in the exercise of its Decisions, final orders, or
40 provisions quasi-judicial functions resolutions of the CA in any case,
regardless of the nature of the
action or proceedings involved,
may be appealed to the SC by
filing a petition for review,
WHERE TO FILE
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Filed with the MTC Filed with the RTC Filed with the CA Filed with the CA Filed with the SC
Appeal to the RTC Appeal to the CA Appeal to the CA Appeal to the CA Appeal to the SC
Questions of fact or mixed Questions of fact, Questions of
Questions of fact or mixed Questions of fact, Questions of
questions of fact and law law, or Mixed questions of fact Only Questions of Law
questions of fact and law law, or Mixed questions of both
and law
TIME FOR FILING
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Within 15 days from:
Within 15 days from:
1. Notice of award,
1. Notice of judgment,
judgment, final order,
BY NOTICE OF APPEAL Within 15 days from notice of final order, or
or resolution OR
Within 15 days after notice of judgment or final order decision, or resolution appealed
2. Date of publication, if
Within 15 days from notice of from, or
publication is required
BY RECORD ON APPEAL denial of petitioner’s motion for 2. Notice of denial of
by law for its effectivity,
Within 30 days from notice of judgment or final order by filing a new trial or reconsideration motion for new trial or
OR
notice of appeal and a record on appeal reconsideration filed in
3. Denial of petitioner’s
due time after notice of
MNT or MR (only one
judgment
MR allowed)

100
 RELIEF FROM JUDGMENTS, ORDERS, AND WHEN PROPER
OTHER PROCEEDINGS (RULE 38)
Rule 38 can be availed of once the judgment has become
CONCEPT final and executory.

Remedies AFTER finality of judgment
1. Petition for relief (Rule 38)
2. Action to Annul Judgment (Rule 47)
3. Collateral Attack of a Judgment that is Void on its
Face
A petition for relief from judgment together with a motion
for new trial and a motion for reconsideration are
remedies available only to parties in the proceedings
where the assailed judgment is rendered. In fact, it has
been held that a person who was never a party to the
case, or even summoned to appear therein, cannot avail of
a petition for relief from judgment (Alaban v. Cam)
The relief provided for by Rule 38 is of equitable
character and is only allowed in exceptional cases, that is
where there is no other available or adequate remedy. A
petition for relief is not regarded with favor and judgment
will not be disturbed where the party complaining has or
by his exercising proper diligence would have had an
adequate remedy at law, as where petitioner could have
proceeded by appeal to vacate or modify the default
judgment. [Manila Electric v. CA (1990)]
Under Sec. 1, it is also available when “any other
proceeding is thereafter taken against the petitioner in
any court through FAME”

NOTE: This is not applicable to the SC since it is not a trier Thus, it was held that a petition for relief is also applicable
of facts. to a proceeding taken after entry of judgment or final
order such as an order of execution (Cayetano v.
RULE 37 v. RULE 38 Ceguerra) or an order dismissing an appeal (Medran v.
CA)
RULE 37 RULE 38
Available BEFORE Available AFTER judgment
WHERE FILED
judgment becomes final has become final and
and executory executory
Rule 38 is not an independent action but a continuation of
Applies to judgments, final
Applies to judgments or the old case. Hence, it is filed with the same court and
orders and other
final orders only same branch which decided the case.
proceedings
Grounds: (1) FAME and
(2) Newly discovered Ground: FAME
GROUNDS: (Rule 38, Sec. 1 and 2)
evidence
1. When judgment or final order is entered or any
Filed within 60 days from other proceeding is thereafter taken against
Filed within the time to knowledge of judgment petitioner through FAME
appeal and within 6 months from 2. When petitioner has been prevented from taking
entry of judgment an appeal by FAME
If denied, order denying a
If denied, order of denial
petition for relief is not
is not appealable; hence,
appealable; remedy is PERIOD FOR FILING: (Rule 38, Sec. 3)
remedy is appeal from
appropriate civil action 1. Within 60 days after petitioner learns of the
judgment
under Rule 65 judgment, final order, or other proceeding to be
Legal remedy Equitable remedy set aside; AND
Motion need not be 2. Not more than 6 months after such judgment or
Petition must be verified
verified final order was entered, or such proceeding was
taken
Rule 37 and Rule 38 are EXCLUSIVE remedies.
The two periods for the filing of a petition for relief are
A party who has filed a timely motion for new trial and/or not extendible and never interrupted. Both periods must
reconsideration cannot file a petition for relief after his be complied with. (Phil. Rabbit Bus Lines Inc. v. Ariaga)
motion has been denied.
Reckoning points:
A party who has filed a timely motion for new trial or 1. The 60-day period is reckoned from the time the
motion for reconsideration can no longer file a petition party acquired knowledge of the order, judgment
for relief from judgment after his motion has been denied. or proceeding. Not from the date he actually read
These remedies are mutually exclusive. It is only in the same (Perez v. Araneta)
appropriate cases where a party aggrieved by the 2. 6-months period is computed from the date of
judgment has not been able to file a motion for new trial entry of the order or judgment
or motion for reconsideration that a petition for relief can
be filed. (Francisco v. Puno, 1981)
FORM AND CONTENTS OF THE PETITION
101
 1. The petition for relief must be verified
2. The petition must be accompanied by an affidavit
showing the FAME relied upon; and
3. The affidavit of merit accompanying the petition
must also show the facts constituting the
petitioner’s good and substantial cause of action
or defense as the case may be
The absence of an affidavit of merits is a fatal defect and
warrant denial of the petition (Fernandez v. Tan Tiong
Tick)
However, it is not a fatal defect so long as the facts
required to be set out also appear in the verified petition
(Fabar Inc. v. Rodelas)
When Affidavit of Merit is not necessary:
1. When there is lack of jurisdiction over the
defendant;
2. When there is lack of jurisdiction over the subject
matter;
3. When judgment was taken by default;
4. When judgment was entered by mistake or was
obtained by fraud; or
5. Other similar cases.
ORDER TO FILE ANSWER (Rule 38, Sec. 4)
An order to answer shall issue only if petition is sufficient
in form and substance.
If petition is sufficient in form and in substance, the court
shall issue an order requiring the adverse party to answer
within 15 days from receipt thereof.
ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS (RULE 47)
Annulment of Judgment is a remedy in law independent
of the case where the judgment sought to be annulled was
rendered and may be availed of though the judgment has
been executed.
NATURE
The purpose of such action is to have the final and
executory judgment set aside so that there will be a
renewal of litigation.
Resorted to in cases where ordinary remedies of new
trial, appeal, petition for relief, or other appropriate
remedies are no longer available through no fault of
petitioner
It is not a mode of appeal but an Independent Civil Action.
WHEN PROPER (Rule 47, Sec. 1)
It is available when the petitioner failed to move for new
trial in, or appeal from, or file a petition for relief against,
or take other appropriate remedies assailing the
questioned judgment or final order or resolution through
no fault attributable to him
The remedy may no longer be invoked where the party
has availed himself of the remedy of new trial, appeal,
petition for relief, or other appropriate remedy and lost
or where he has failed to avail himself of those remedies
through his fault or negligence

PROCEEDINGS AFTER ANSWER IS FILED (Rule 38, Sec. WHERE FILED

6)
JUDGMENTS, FINAL JUDGMENTS, FINAL
After filing of answer or expiration of the period therefor,
ORDERS, OR ORDERS, OR
court shall hear the petition.
RESOLUTIONS OF THE RESOLUTIONS OF THE
RTC MTC
If the court finds that the allegations are not true – Petition
Filed with the CA Filed with the RTC
is dismissed.
CA has exclusive and
RTC as a court of general
original jurisdiction over
If the court finds that allegations are true: jurisdiction under Sec.
said action under Sec. 9
1. It shall set aside the judgment, final order, or 19(6) BP 129
(2) of BP 129
other proceeding complained of upon such terms
The CA may dismiss the
as may be just The RTC has no such
case outright; it has the
2. Thereafter, case shall stand as if such had never discretion, it is required to
discretion on whether or
been rendered, issued, or taken consider it as an ordinary
not to entertain the
3. The court shall then proceed to hear and civil action
petition
determine the case as if timely motion for new
trial or reconsideration has been granted by it
WHO CAN FILE
REMEDY FOR DENIAL OF PETITION FOR RELIEF.
Petitioner need not be a party to the judgment sought to
Appeal from an order denying a petition for relief is no annulled.
longer available under the present rules.
A person who is not a party to the judgment may sue for
The remedy against a denial of a petition for relief is its annulment provided that he can prove the same was
certiorari under Rule 65, when proper.
102
obtained through fraud or collusion and that he would be
adversely affected thereby. (Alaban v. CA)
GROUNDS (Rule 47, Sec. 2)
Annulment may be based only on TWO grounds:
1. Extrinsic Fraud
2. Lack of Jurisdiction
Although Sec. 2 provides that annulment of judgment or
order may be based only on extrinsic fraud and lack of
jurisdiction, jurisprudence recognizes DENIAL OF DUE
PROCESS as an additional ground (Sps. Benatiro, et al. v.
Heirs of Cuyos et al.) This was recognized in the 2013 case
of Leticia Diona, represented by her Attorney-in-fact,
Marcelina Diona v. Romeo Balangue, Sonny Balangue,
Reynaldo Balangue, and Esteban Balangue, Jr.
Extrinsic or Collateral Fraud - Refers to any fraudulent act
of the prevailing party in the litigation which is
committed outside of the trial of the case, whereby the
defeated party has been prevented from exhibiting fully
and fairly presenting his side of the case
Lack of Jurisdiction - Lack of jurisdiction refers to either
lack of jurisdiction over the person of the defending party
or over the subject matter of the claim, and in either case,
the judgment or final order and resolution are void.
NOTE: In a petition for annulment of judgment
based on lack of jurisdiction, petitioner must
show an ABSOLUTE LACK of jurisdiction not
merely abuse of jurisdictional discretion.
As to Evidence
1. When the ground invoked is extrinsic fraud,
extraneous evidence is admitted
2. However, when the ground is lack of jurisdiction,
only evidence found in the records of the case can
justify nullity of judgment
PERIOD FOR FILING (Rule 47, Sec. 3)
LACK OF
EXTRINSIC FRAUD
JURISDICTION
PERIOD
4 years from Before it is barred by
OF
discovery of fraud laches or estoppel
FILING
There must be a manifest showing with petition that it
was filed within the 4-yr period.
The rule does not fix the period to annul judgment based
on lack of jurisdiction but recognizes the principle of
estoppel as first laid down by Tijam v. Sibonghanoy.
FORM AND CONTENTS OF PETITION (Rule 47, Sec. 3)
1. Verified petition, alleging therein:
a. With particularity, the facts and the law
relied upon
b. Petitioner’s good and substantial cause of
action or defense
103
2. Filed following the Efficient Use of Paper Rule
3. Certified true copy of the judgment or final order
or resolution shall be attached to the original
copy of the petition
4. Affidavits of witnesses or documents supporting
the cause of action or defense; and
5. Certificate of non-forum shopping
PROCEEDINGS
There are two stages in the disposition of the petition:
1. A preliminary evaluation of the petition for prima
facie merit (Sec. 5)
 The rule allows the CA to dismiss the petition
outright as in special civil actions
 If prima facie merit is found, petition is given
due course and summons is served on
respondent
2. If prima facie merit is found, petition is given due
course and issuance of summons as in ordinary
civil cases is made (Sec. 6)
 Procedure in ordinary civil cases is observed
NOTE: Prima facie determination is not available in
annulment of judgments or final orders of MTCs before
the RTC. (Rule 47, Sec. 10)
EFFECT OF JUDGMENT OF ANNULMENT (Rule 47, Sec.
7)
Effect of annulment based on lack of jurisdiction
1. The same shall be set aside and considered null
and void
2. Aggrieved party may refile the action in the
proper court
a. This may involve a different court of
competent jurisdiction
b. But where the reason for such annulment
was because of lack of jurisdiction over
defendant, the action may be refilled in the
same original court provided it has proper
jurisdiction and venue
Effect of annulment based on extrinsic fraud
1. The same shall be set aside and considered null
and void
2. On motion of the prevailing party on justifiable
grounds, he may be allowed to no longer refile
the action
a. The trial court which rendered the
questioned judgment shall be ordered to try
the case anew
The prescriptive period for the refiling of the aforesaid
original action shall be deemed suspended from the filing
of said original action until the finality of the judgment of
annulment. However, the prescriptive period shall not be
suspended where the extrinsic fraud is attributable to the
plaintiff in the original action. (Rule 47, Sec. 8)
 COLLATERAL ATTACK OF JUDGMENTS
ON ATTACKING THE VALIDITY OF A JUDGMENT
Direct Attack v. Collateral Attack:
1. Direct attack upon a judgment is an action or
proceeding to annul it, this being the main object
of the proceeding
2. Collateral attack upon a judgment is one made to
obtain relief other than the setting aside of the
judgment, the attack on the judgment itself being
incidental
When Collateral Attack Proper: This is proper only when
the judgment on its face is null and void as where it is
patent that the court which rendered said judgment has
no jurisdiction
The validity of a judgment or order of the court, which has
become final and executory, may be attacked in three ways:
1. Only by a direct action or proceeding to annul the
same
 This proceeding is a direct attack against the
order of judgment because it is not incidental
to, but is the main object of, the proceeding
 A direct action to annul and enjoin
enforcement of the judgment where the
alleged defect is not apparent on its face or
from the recitals contained in the judgment
 See Rule 47
2. Or by direct action, as certiorari, or by collateral
attack in case of apparent nullity
 The collateral attack must be against a
challenged judgment which is void upon its
face or that the nullity of the judgment is
apparent from its own recitals
3. Or by a Petition for Relief under Rule 38
 This third manner of attacking must be taken
in the same action or proceeding in which the
judgment or order was entered
VOID JUDGMENT
A void judgment is no judgment at all. It cannot be the
source of any right nor the creator of any obligation. All
acts performed pursuant to it and all claims emanating
from it have no legal effect. Hence, it can never become
final and any writ of execution based on it is void.
[Polystyrene Manufacturing v. Privatization Management
(2007)]
A void judgment may be likened to a lawless thing which
can be treated as an outlaw and slain at sight, or ignored
wherever and whenever it rears its head. [Banco Espanol-
Filipino v. Palanca (1918)]
A judgment may be void for lack of due process of law.
[Spouses Benatiro v. Heirs of Cuyos (2008))
104
ATTACKING A VOID JUDGMENT
It may be assailed anytime, collaterally or in a direct
action or by resisting such judgment or final order in any
action or proceeding whenever it is invoked, unless
barred by laches. [Spouses Benatiro v. Heirs of Cuyos
(2008))
REMEDIES
If the reglementary period for appeal has not yet lapsed,
some remedies are New Trial and Reconsideration.
Appeal, Petition for Relief, and Other Appropriate
Remedies such as Certiorari may also be used.
If the appropriate remedies are no longer available
without the fault of the petitioner, the equitable and
extraordinary remedy of Petition for Annulment of
Judgment may be resorted to.
When all else fails, there is jurisprudence to the effect that
a patently void judgment may be dealt with by a Main
Action for Injunction. [See Barrameda v. Moir (1913)]
JURISPRUDENTIAL BASIS
Remedial Law Jurisprudence such as Spouses Benatiro v.
Heirs of Cuyos, (2008) and Agustin v. Bacalan, (1985) on
the matter of void judgment particularly refer to Rule 47
as a remedy against a void judgment. This remedy,
however, should be availed of only when the appropriate
remedies are no longer available without fault on the part
of the petitioner.
Although Section 2 of Rule 47 of the Rules of Court
provides that annulment of a final judgment or order of
an RTC may be based "only on the grounds of extrinsic
fraud and lack of jurisdiction," jurisprudence recognizes
denial of due process as additional ground therefore
(Spouses Benatiro Case).
A void judgment is like an outlaw which may be slain at
sight wherever or whenever it exhibits its head. The proper
remedy in such case, after the time for appeal or review
has passed, is for the aggrieved party to bring an action to
enjoin the judgment. (Montinola v. Judge Gonzales, 1989)
Assuming the judgment to have been void as alleged by
the proponent of this motion, the proper remedy was by
an original proceeding and not by motion in the cause"
[Banco Espanol v. Palanca (1918)]. A final judgment may
be annulled on the ground of lack of jurisdiction, fraud, or
that it is contrary to law. [Panlilio v. Garcia (1982)]
EXECUTION, It can be noted that the Supreme Court made a hairline

SATISFACTION, AND distinction between finality of order for appeals and for
execution. It is submitted that upon court’s issuance of a
judgment touching upon the merits of a case, it is final for
EFFECT OF the purposes of an appeal, but NOT for execution.

JUDGMENTS NOTE: Finality for the purposes of execution refers to the

expiration of the period to appeal and no appeal was
perfected.

DIFFERENCE BETWEEN FINALITY OF WHEN EXECUTION SHALL ISSUE

JUDGMENT FOR PURPOSES OF APPEAL; FOR
Execution is a process provided by law for the
PURPOSES OF EXECUTION
enforcement of a final judgment. Enforcement is part of
court’s jurisdiction. It is not an action but is included in
The term “finality of judgment for purposes of appeal”
the phrase “Process in an action – part of the proceedings
refers to interlocutory orders which:
considered as still pending.
1. Are not decisions within the constitutional
definition [Armargo v. CA (1973)]
Cases where Execution may Issue even if judgment NOT
2. are those that determine incidental matters that
Final:
do not touch on the merits of the case or put an
1. Support pendente lite
end to proceedings. The following are examples
2. Judgments of inferior courts in ejectment cases
of an interlocutory order:
3. Execution pending appeal
a. An order denying a motion to dismiss;
4. Injunction, accounting, receivership, support
b. An order granting an extension of time to file
(Rule 39, Sec. 4)
a pleading, or one authorizing an amendment
5. Decision of the RTC in appealed civil cases under
thereof;
Summary Procedure, including forcible entry and
c. Order granting or denying applications for
unlawful detainer
postponement or inspection of documents.
6. Decision of the LA reinstating dismissed
[Riano]
employee, insofar as reinstatement aspect is
concerned
The word interlocutory refers to something intervening
between the commencement and the end of a suit which
Writ of Execution: A judicial writ issued to an officer
decides some point or matter but is not a final decision of
authorizing him to execute the judgment of the court.
the whole controversy. [Ramiscal, Jr. v. Sandiganbayan
(2004)]
Dispositive Portion as Subject of Execution
1. General Rule: The dispositive portion of the
A final judgment or order is one that finally disposes of a
decision is that part that becomes the subject of
case, leaving nothing more to be done by the Court in
execution
respect thereto, e.g., an adjudication on the merits which,
2. Exceptions:
on the basis of the evidence presented at the trial,
a. Where there is ambiguity, the body of the
declares categorically what the rights and obligations of
opinion may be referred to for purposes of
the parties are and which party is in the right; or a
construing the judgment because the
judgment or order that dismisses an action on the ground,
dispositive part of a decision must find
for instance, of res judicata or prescription.
support from decision’s ratio decidendi
b. Where extensive and explicit discussion and
Once rendered, the task of the Court is ended, as far as
settlement of the issue is found in the body of
deciding the controversy or determining the rights and
the decision
liabilities of the litigants is concerned. Nothing more
remains to be done by the Court except to await the
Two Whom Issued:
parties' next move (which among others, may consist of
1. General Rule: Only real parties in interest in an
the filing of a motion for new trial or reconsideration, or
action are bound by judgment rendered therein
the taking of an appeal) and ultimately, of course, to cause
and by the writs of execution
the execution of the judgment once it becomes 'final or, to
2. Exceptions: There are certain cases where the
use the established and more distinctive term, 'final and
writ may be issued against non-parties
executory.
a. One who is privy to judgment debtor can be
reached by an order of execution and writ of
Execution is a matter of right upon the expiration of the
demolition (Vda. De Medina v. Cruz)
period to appeal and no appeal was perfected from a
b. Issued against one who not being originally a
judgment or order that disposes of the action or
party to the case submits his interest to the
proceeding. [Rule 39, Sec. 1]
105
 court for consideration in the same case and
invites adjudication regarding said interest
(Jose v. Blue)
c. Where non-parties voluntarily signed the
compromise agreement or voluntarily
appeared before court (Rodriguez v.
Alikpala)
d. Where the remedy of a person not a party to
the case which he did not avail of, was to
intervene in the case in question involving
rights over the same parcel of land and said
person in another case was adjudged buyer
in bad faith thereof (Lising v. Plan)
e. In an ejectment case, where 3rd party
derived his right of possession from
defendant particularly when such right was
acquired only after filing of ejectment suit
(Cordova v. Tornilla)
EXECUTION AS A MATTER OF RIGHT (Rule 39, Sec. 1)
The finality of judgment has the effect of entitling
prevailing party to execution as a matter of right. It is the
ministerial duty of the court to do execution. (Herrera)
Exceptions: The issuance of a writ of execution which
issues as a matter of right can be countered in any of the
following cases
1. ):
2. When a PETITION FOR RELIEF or an action to
enjoin judgment is filed and a preliminary
injunction is prayed for and granted (Rule 38,
Sec. 5);
3. When the judgment turns out to be INCOMPLETE
OR IS CONDITIONAL since as a matter of law,
such judgment CANNOT BE FINAL;
4. When the judgment has been NOVATED BY THE
PARTIES
5. When SUBSEQUENT FACTS AND
CIRCUMSTANCES transpire as to render such
execution unjust or impossible
6. On EQUITABLE GROUNDS as when there has
been a change in the situation of the parties
which makes execution INEQUITABLE.
7. When the judgment becomes DORMANT, the 5-
year period under Rule 39.6 having expired
without the judgment having been revived
NOTE: Execution may only issue upon motion with notice
of hearing.

Execution as a matter of right, TWO INSTANCES: Supervening Event Doctrine – A supervening event can be
1. No appeal has been perfected or period of appeal invoked for the modification or alteration of a final
has expired judgment. This refers to:
2. Appeal has been perfected and finally resolved 1. Facts which transpire after judgment has become
final and executory. Or
How Done: 2. New circumstances which developed after the
judgment has acquired finality
CASE HOW EXECUTION IS CARRIED 3. Matters which the parties were not aware of
If no appeal has Prevailing party applies by motion prior to or during the trial as they were not yet in
been perfected, or for a writ of execution which is existence at that time
the period of appeal granted by the judge since it is a 4. The supervening facts or circumstances must
has expired matter of right either bear a direct effect upon the matters
Prevailing party: already litigated and settled or create a
1. Files a motion in the court substantial change in the rights or relations of the
of origin, parties therein which render execution of the
2. Submitting certified true final judgment unjust or impossible (Lim v.
copies of the judgment or Jabalde)
final orders sought to be
enforced
3. Submitting the entry DISCRETIONARY EXECUTION (Rule 39, Sec. 2)
If appeal has been
thereof,
perfected and DISCRETIONARY EXECUTION AS A MATTER
4. With notice to adverse
finally resolved EXECUTION OF RIGHT
party
Appellate court may also direct the May issue before the lapse Period to appeal has
court of origin to issue the writ of of period to appeal, and already lapsed and no
execution: even during appeal appeal is perfected
1. Upon motion in the same Discretionary upon the Ministerial duty of the
case AND court court
2. When the interest of Upon showing of good Provided there are no
justice so requires reason for execution supervening events

General Rule: It is a matter of right on the part of the Under the Rule on Discretionary Execution (also called
winning party when the judgment or order becomes execution pending appeal), the court rendering the
executory. The court cannot refuse execution. judgment, if it still has jurisdiction, may exercise
discretion and order execution pending appeal.

106
It is the execution of a judgment or final order before it 3. Good reasons must be
attains finality. The court which rendered the decision can shown
grant an execution pending appeal if it still retains
jurisdiction over the case and is in possession of the 2. Execution of several, separate, or partial
records at the time of the filing of the motion; otherwise, judgments may also be executed under the same
the motion shall be acted upon by the appellate court. terms and conditions as execution pending
To be valid, there should be a good reason to justify the appeal.
execution of the judgment pending appeal, the same to be
stated in the order granting it. Requisites for Discretionary Execution:
1. There must be a motion filed by prevailing party
with notice to adverse party
Discretionary Execution is NOT applicable in the case of the 2. There must be a hearing of the motion for
Court of Appeals: discretionary execution
1. The Rule on Discretionary Execution 3. There must be good reasons to justify the
contemplates a situation where a judgment or discretionary execution
final order rendered in the exercise of its original 4. These good reasons must be stated in a special
jurisdiction and the prevailing party in said order after due hearing
decision seeks immediate execution during the
pendency of an appeal.
2. The CA has no authority to issue IMMEDIATE Examples of Good Reasons:
EXECUTION PENDING APPEAL OF ITS OWN 1. Where the goods subject of the judgment stand to
DECISIONS THEREIN. perish or deteriorate during the pendency of the
3. Discretionary execution is allowed pending appeal (Yasuda v. CA)
appeal of judgment or final order of the trial 2. The award of actual damages is for an amount
court upon good reasons to be stated in a special fixed and certain (Radio Communications Inc. v.
order. Lantin). But not an award for moral and
exemplary damages
A judgment of the CA cannot be executed pending appeal. 3. Insolvency of a defeated party (Hacienda Navarro
(Heirs of Justice JBL Reyes v. CA, 2000) v. Labrador)
4. The prevailing party is of advanced age and in a
precarious state of health and the obligation in
When Proper and How Done the judgment is non-transmissible, being for
support (De Leon v. Soriano)
1. Execution pending appeal – The duration of the 5. Where defendants were exhausting their income
court’s discretionary power to order execution and have no other property aside from proceeds
pending appeal depends on: of the property subject in litigation (Lao v.
a. Where the record on appeal is required, Mencias)
(1) The court loses jurisdiction only over the
subject matter thereof upon approval of
the record on appeal and expiration of The Supersedeas Bond
the time to appeal of the other party
Discretionary execution may be stayed upon approval by
b. Where no record on appeal is required, court the proper court of a sufficient supersedeas bond filed by
may issue writ of execution before perfection the party against whom it is directed.
of appeal 1. It is conditioned upon the performance of the
judgment or order allowed to be executed in case
c. If the court lost jurisdiction, the writ may be it shall be finally sustained in whole or in part
issued by the appellate court, as such: 2. Bond may be proceeded against on motion with
notice to surety
CASE HOW EXECUTION IS CARRIED
Prevailing party: General Rule: The filing of a supersedeas bond is
If the trial court still 1. Files a motion with sufficient to stay the enforcement of a discretionary
has jurisdiction over notice to the adverse execution.
the case and is still in party
possession of either 2. Motion is filed with the Exception: However, THE FILING OF SUPERSEDEAS
the original record or TRIAL court BOND does not entitle the judgment debtor to the
record on appeal 3. Good reasons must be suspension of execution as a MATTER OF RIGHT. Where
shown the needs of the prevailing party are URGENT, the Court
The prevailing party: can order immediate execution despite such
1. Files a motion with SUPERSEDEAS BOND. [Regalado]
If the trial court has
notice to adverse party
lost jurisdiction
2. Motion is filed with the If judgment is reversed totally or partially, or annulled –
APPELLATE COURT The trial court may, on motion, issue such orders of

107
restitution or reparation of damages as equity and justice HOW JUDGMENT IS EXECUTED
may warrant under the circumstances
EXECUTION BY MOTION OR BY INDEPENDENT
Remedy against Execution pending Appeal – The remedy is ACTION (Rule 39, Sec. 6)
certiorari by Rule 65. The appeal could not be an
adequate remedy for such premature execution. (Jaca v. Modes of Enforcement of Execution:
Davao Lumber Co.)
MODE WHEN ENFORCED
Within 5 years from date of entry of
By Motion
judgment
After the lapse of 5 years from date of
By
entry and before it is barred by statute
Independent
of limitations which is 10 years from
Action
date of entry (Art. 1144(3))

NOTE: The revived judgment may be enforced by motion

within 5 years from date of its entry and thereafter by
action before it is barred by statute of limitations.

Once the judgment is revived, the 10-year prescriptive

period commences to run from the date of finality of the
REVIVED JUDGMENT and not the original judgment.

ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION

(Rule 39, Sec. 8)

Contents of the Writ of Execution

1. Issued in the name of the Republic from the court
which granted the motion
2. States the name of the court, case number and
title, dispositive part of judgment or order
3. Requiring the sheriff or other proper officer to
whom it is directed to enforce the writ according
to its terms
4. In all cases, it shall also specifically state the
amount of interest, cost, damages, rents, or
profits due as well as the principal obligation

Manner of Execution

To satisfy judgment plus

If it be against property of
interest out of his real or
judgment obligor
personal property
If it be against real or
personal property in the
hands of personal
To satisfy judgment with
representatives, heirs,
interest out of such
devisees, legatees, tenants,
or trustees of judgment
obligor
To sell such property
described
If it be for sale of real or
personal property Then apply proceeds in
conformity with judgment

To deliver possession of
the same, describing it, to
If it be for delivery or
the party entitled thereto
possession of real or
personal property
Then to satisfy any costs,
damages, rents, or profits
108
 covered by the judgment
Out of the personal
property of obligor
In case of insufficiency,
then out of real property
EXECUTION FOR JUDGMENTS OF MONEY
If the award is for payment of money, execution is
enforced by: (Rule 39, Sec. 9)
1. Immediate payment on demand
2. Satisfaction by levy
3. Garnishment of debts and credits

Remedies Against a Writ of Execution IMMEDIATE PAYMENT ON DEMAND

1. If there is a defect in the writ, file a motion to Procedure:

quash the writ of execution 1. The officer shall demand from judgment obligor
a. Quashal is proper when: the immediate payment of the full amount stated
(1) A change in the situation of the parties in the writ and all lawful fees
renders execution inequitable
(2) Issued against wrong party 2. The judgment obligor shall pay the amount of the
(3) Issued without authority judgment debt
(4) Improvidently issued a. Payable in Cash, Certified bank check payable
(5) Defective in substance to judgment obligee, or any other form of
(6) Judgment already satisfied; and payment acceptable to judgment obligee
(7) The controversy was never submitted to (1) In no case shall sheriff demand that any
the court payment by check be made payable to
(8) Where the writ varies the terms of the him
judgment (2) Amount of judgment under proper
(9) It is sought to be enforced against receipt directly to the judgment obligee
property exempt from execution or his authorized representative if
(10) Where there is ambiguity in the present at time of payment
terms of the judgment
b. If judgment oblige or his representative is
b. If motion to quash is denied, appeal from present to receive payment:
said denial (1) Judgment obligor shall delver payment
to executing sheriff
2. An order granting the issuance of the writ is not (2) Sheriff shall turn over the amounts
appealable, except where: within the same day to the clerk which
a. The order varies the terms of the judgment, issued the writ or deposit the amounts
or to a fiduciary account in the nearest
b. Where, being vague, the court renders what government depository bank of the RTC
is believed to be a wrong interpretation of the locality

3. The judgment obligor shall pay the lawful fees

handed over to the sheriff. Sheriff shall turn over
the said amount within the same day to the clerk
that issued the writ

4. If there is any excess it shall be delivered to the

judgment obligor. Lawful fees shall be retained
by the clerk

SATISFACTION BY LEVY

Levy is the act whereby a sheriff sets apart or

appropriates for the purpose of satisfying the command
of the writ, a part or the whole of the judgment debtor’s
property.

Levy means the act or acts by which an officer sets apart

or appropriates a part or the whole of the property of the
judgment debtor for purposes of the prospective
execution sale [Llenares v. Vandevella (1966)].

If susceptible of appropriation, the officer removes and

takes the property for safekeeping; otherwise the same is

109
placed under sheriff’s guards. Without valid levy having
been made, any sale of the property thereafter is void.
Conditions to be met before resort to satisfaction by levy:
1. If the judgment obligor cannot pay all or part of
the obligation then the officer shall levy upon the
properties of the judgment obligor
2. Characteristics of properties to be levied
a. Properties of every kind and nature
whatsoever
b. Which may be disposed of for value
c. Not otherwise exempt from execution
UP’s funds, being government funds, are not subject to
garnishment. Moreover, The execution of the monetary
judgment against the UP was within the primary
jurisdiction of the COA. [UP v. Dizon (2012)]
Procedure:
1. Levy shall be made by serving notice upon:
a. The person owing such debts, or
b. Having in his possession or control such
credits to which judgment obligor is entitled
2. Garnishment to cover only such amount as will
satisfy judgment and lawful fees

Procedure: 3. If there are 2 or more garnishees, holding

1. The judgment obligor have the option to
immediately choose which property or part
thereof may be levied upon, sufficient to satisfy
judgment
2. If judgment obligor does not exercise the option:
a. The officer shall first levy on personal
properties, if any
b. If personal properties are insufficient, then
on the real properties
3. Sheriff shall sell only sufficient portion of
personal or real property of the judgment obligor
levied upon
4. If there is more property than is sufficient to
satisfy judgment and lawful fees, then sell only so
much as is sufficient
GARNISHMENT OF DEBTS AND CREDITS
Garnishment is considered as a species of attachment for
reaching credits belonging to the judgment debtor and
owing to him from a stranger to the litigation
deposits or credits sufficient to satisfy judgment,
judgment obligor shall have the right to indicate
the garnishee/s who shall be required to deliver.
Otherwise, the choice shall be made by judgment
obligee
4. The garnishee shall make a written report to the
court within 5 days from service of notice of
garnishment. The report shall state whether:
a. Judgment obligor has sufficient funds or
credits to satisfy judgment, OR
b. Judgment obligor has insufficient funds or
credits to satisfy judgment
5. Garnish the amount which may be in cash, or
certified bank check issued in the name of
judgment obligee
6. Garnished amount shall be delivered directly to
judgment obligee within 10 working days from
service of notice on said garnishee requiring such
delivery
7. Follow procedure under “Immediate Payment on
Demand” with respect to delivery

The Officer may levy on: 8. Lawful fees shall be paid directly to court
1. Debts due the judgment obligor and other credits,
2. Including bank deposits, financial interests,
royalties, commissions,
3. And other personal property not capable of
manual delivery in possession and control of
third parties

The process of levying shall be called garnishment if the

property involved is money, stocks, or other incorporeal
property in the HANDS OF THIRD PERSONS. Garnishment
merely sets apart such funds but does not constitute the
creditor as owner of the garnished property.

Garnishment is not a violation of RA 1405 on the secrecy

of bank deposits. [Chinabank v. Ortega (1973)]

Notes: Upon service of the writ of garnishment, the

garnishee becomes a “virtual party” or “forced
intervenor” to the case and the trial court thereby
acquires jurisdiction to bind the garnishee to comply with
its orders and processes. [BPI v. Lee (2012)]

110
 EXECUTION OF JUDGMENTS FOR SPECIFIC remove the same within a reasonable time fixed by the
ACTS court.

When proper: (Rule 39, Sec. 10) Delivery of personal property

1. Resorted to if the judgment directs a party to:
a. Execute a conveyance of land or personal In judgment for the delivery of personal property, the
property, or officer shall take possession of the same and forthwith
b. Deliver deeds or other documents, or deliver it to the party entitled thereto and satisfy any
c. Perform any other specific act in connection judgment for money as therein provided.
therewith.
2. AND the party fails to comply within the time
specified

Procedure:
1. Court may direct the act to be done
a. At the cost of disobedient party
b. Or by some other person appointed by the
court

2. In case of directing conveyance of real or

personal property located in the Philippines:
a. Court may divest the title of any party and
vest it in others by court order
b. This shall have the force and effect of
conveyance executed in due form

Sale of real or personal property

If judgment is rendered ordering the sale of real or

personal property, an order for execution shall be issued
describing such property as may be ordered sold, selling
it, and applying the proceeds in conformity with the
judgment’s instructions.

Delivery or restitution of real property

The officer shall demand of the person against whom the

judgment for the delivery or restitution of real property is
rendered and all persons claiming rights under him to
peaceably vacate the property within three (3) working
days, and restore possession thereof to the judgment
obligee.

Otherwise, the officer shall oust all such persons

therefrom with the assistance, if necessary, of appropriate
peace officers, and employing such means as may be
reasonably necessary to retake possession, and place the
judgment obligee in possession of such property.

Any costs, damages, rents or profits awarded by the

judgment shall be satisfied in the same manner as a
judgment for money.

Removal of improvements on property subject of execution

When the property subject of the execution contains

improvements constructed or planted by the judgment
obligor or his agent, the officer shall not destroy, demolish
or remove said improvements except upon special order
of the court, issued upon motion of the judgment obligee
after the hearing and after the former has failed to
111
 EXECUTION OF SPECIAL JUDGMENTS
When Proper: (Rule 39, Sec. 11)
When a judgment requires performance of any other act
than those mentioned in Sec. 9 and 10.
Special Judgment is one which can only be complied with
by the judgment obligor because of his personal
qualifications or circumstances. It requires performance
of an act other than payment of money or sale or delivery
of property. A special judgment may be enforced by
contempt if defendant refuses to comply
EFFECT OF LEVY ON THIRD PERSONS
The levy on execution shall create a lien in favor of the
judgment obligee over the right, title and interest of the
judgment obligor in such property at the time of the levy,
subject to liens and encumbrances then existing. (Rule 39,
Sec. 12)
NOTE: The power of the court in execution extends only
over properties UNQUESTIONABLY belonging to
judgment debtor.

Procedure:
1. A writ of execution shall be issued. Attached to
this is a certified copy of the judgment

2. Service by the officer upon:

a. The party against whom the same is
rendered, or
b. Any other person required thereby, or by
law, to obey the same

3. Failure of such party to obey the judgment is

punishable by contempt

Examples:
1. A judgment in mandamus to reinstate petitioner
as chief clinic of the hospital (Vital-Gozon v. CA)
2. A judgment directing petitioner to vacate the
land which is a judgment to deliver possession of
real property and not special judgment. No
contempt for refusal (Moslem v. Soriano)
3. A judgment directing defendant to remove a
fence from a certain place is a special judgment
(Marquez v. Marquez)

112
 PROPERTIES EXEMPT FROM EXECUTION
General Rule: Except as otherwise expressly provided by
law, the following property, and no other, shall be exempt
from execution (Rule 39, Sec. 13)
1. The judgment obligor's family home as provided
by law, or the homestead in which he resides, and
land necessarily used in connection therewith;
2. Ordinary tools and implements personally used
by him in his trade, employment, or livelihood;
3. Three horses, or three cows, or three carabaos, or
other beasts of burden, such as the judgment
obligor may select necessarily used by him in his
ordinary occupation;
attendance [ART 1708, CIVIL CODE]; benefit
payments from SSS [Section 16, RA 1161 AS
AMENDED])
Exception: However, no article or species of property
mentioned in this section shall be exempt from:
1. Execution issued upon a judgment recovered for
its price, or
2. Upon a judgment of foreclosure of a mortgage
thereon.
The exemptions MUST BE CLAIMED, otherwise they are
deemed waived. It is not the duty of the sheriff to set off
the exceptions on his own initiative. (Herrera v.
Mcmicking, 1909)

4. His necessary clothing and articles for ordinary

personal use, excluding jewelry;

5. Household furniture and utensils necessary for

housekeeping, and used for that purpose by the
judgment obligor and his family, such as the
judgment obligor may select, of a value not
exceeding one hundred thousand pesos;

6. Provisions for individual or family use sufficient

for four months;

7. The professional libraries and equipment of

judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding
three hundred thousand pesos in value;

8. One fishing boat and accessories not exceeding

the total value of one hundred thousand pesos
owned by a fisherman and by the lawful use of
which he earns his livelihood;

9. So much of the salaries, wages, or earnings of the

judgment obligor for his personal services within
the four months preceding the levy as are
necessary for the support of his family;

10. Lettered gravestones;

11. Monies, benefits, privileges, or annuities accruing

or in any manner growing out of any life
insurance;

12. The right to receive legal support, or money or

property obtained as such support, or any
pension or gratuity from the Government;

13. Properties specially exempted by law. (e.g.,

property mortgaged to the DBP [Section 26, CA
458]; savings of national prisoners deposited
with the POSTAL SAVINGS BANK [Act 2489];
benefits from private retirement systems of
companies and establishments with limitations
[RA 4917]; laborer’s wages except for debts
incurred for food, shelter, clothing and medical

113
 RETURN OF WRIT OF EXECUTION
Procedure for Return of Writ of Execution if Judgment is
Satisfied within 30 days (Rule 39, Sec. 14)
1. Writ of execution shall be returnable to the court
issuing it immediately after judgment has been
satisfied in part or in full
2. The return shall set forth the whole of the
proceedings taken
3. Return is filed with the court
4. It shall also be reproduced and copies thereof
furnished to parties
Procedure if Judgment is NOT satisfied within 30 days:
1. Officer shall report to the court stating the reason
for non-satisfaction
2. The writ shall continue in effect during the period
within which judgment may be enforced by
motion
3. Officer shall make a report to the court every 30
days on the proceedings taken thereon, until
either:
a. Judgment is satisfied in full, or
b. Its effectivity expires
4. The periodic reports shall:
a. Set forth the whole of the proceedings taken,
and
b. Be filed with the court
c. Be reproduced and copies thereof furnished
to parties
NOTE: The lifetime of a writ of execution is without limit
for as long as the judgment has not been satisfied.
But it is returnable to the court issuing it immediately
after judgment has been satisfied in full or in part.
The writ shall continue in effect during period within
which the judgment may be enforced by motion which is
5 years from date of entry. After the first 5 years,
judgment becomes dormant and subject to revival action.
114
PROCEEDINGS WHERE PROPERTY CLAIMED
BY THIRD PERSON
CONCEPTS
Rule 39, Sec. 16 and other provisions which provide for a
mode of recovering property allegedly to have been
wrongfully taken by sheriff pursuant to a writ of
execution or other process, refers to a STRANGER to an
action.
Remedies of Third-Party Claimant:
1. Summary hearing before the court which
authorized the execution
2. “Terceria” or third-party claim filed with the
sheriff (Rule 39, Sec. 16)
3. Action for damages on the bond posted by the
judgment creditor
4. 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)]
For a Third-Party Claim to be Sufficient:
1. Must be filed by a person other than the
defendant or his agent, at any time before sale
2. Must be under oath or supported by affidavit
stating the claimant’s title to, or right of
possession of, the property, and grounds therefor
3. Must be served upon the officer making levy and
a copy thereof upon the judgment creditor
The timing of the filing of the claim is important because
it determines the remedies available to the claimant:
1. If the claim is filed under Rule 39, Sec. 16:
a. Claimant may vindicate his claim in a
separate action
b. Intervention is no longer allowed since
judgment has already been rendered
2. If the claim is filed under Sec. 14, Rule 57
(Attachment) or under Sec. 7, Rule 60 (Replevin)
a. Claimant may vindicate his claim by
intervention as he has a legal interest in the
matter of litigation
b. Intervention is allowed as these actions are
still pending in court
Effect of Third-Party Claim: When a third-party claim is
filed, sheriff is not bound to proceed with the levy of the
property unless judgment creditor or latter’s agent posts
an indemnity bond against the claim.
SUMMARY HEARING BEFORE COURT AUTHORIZING
EXECUTION
A third-person whose property was seized by a sheriff to
answer for an obligation of a judgment debtor may invoke
the supervisory power of the court which authorized such
execution
Procedure:
1. Claimant files application
2. Court conducts summary hearing
a. The court may command that the property
be released from the mistaken levy and
restored to rightful owner or possessor
b. If claimant’s proofs do not persuade, the
claim will be denied by the court
thereto, before the court can exercise its supervisory
power to direct the release of the property mistakenly
levied and the restoration thereof to its rightful owner,
the claimant must first unmistakably establish his
ownership or right of possession thereon. (Magdalena T.
Villasi v. Filomena Garcia, substituted by his heirs, namely,
Ermelinda H. Garcia, et al, 2014)
In Spouses Sy v. Hon. Discaya (1990]), SC declared that for
a third-party claim or a terceria to prosper, the claimant
must first sufficiently establish his right on the property

3. Note however that the court determination is REINVINDICATORY ACTION

limited
a. Limited only to a determination of whether
the sheriff has acted rightly or wrongly in
performance of his duties
b. The court does not and cannot pass upon the
question of title. It can treat of the matter
only insofar as may be necessary to decide if
sheriff acted correctly or not
TERCERIA
The aforesaid remedies are nevertheless without
prejudice to any proper action that third-party claimant
may file to vindicate his claim over the property
(ownership claim). This action is separate and
independent
Procedure
1. He must institute an action, distinct and separate
from that which the judgment is being enforced,
with the court of competent jurisdiction

Independent of the foregoing, a third-party claimant may 2. No need to file a claim in the court which issued a
also avail of the remedy of Terceria. Terceria is provided writ. The latter is not a condition sine qua non for
in Sec. 16, Rule 39. the former.

This is an action for damages by claimant against officer 3. In such proper action, validity and sufficiency of
within 120 days from date of filing of bond for taking or title of claimant will be resolved.
keeping the property subject of the terceria
4. A writ of preliminary injunction against sheriff
Procedure may be issued
1. Claimant serves on the officer making levy an
affidavit of his title and a copy thereof to
judgment creditor

2. Officer shall not be bound to keep property

a. Unless judgment creditor, or his agent, on
demand of officer, posts indemnity bond not
lesser nor greater than value of property

3. Where a third-party claim has been filed in due

form:
a. Prevailing party can compel the sheriff to
proceed by filing of a bond to answer for
damages as a consequence of the execution
b. If sheriff proceeds with the sale without such
bond, he will be personally liable for such
damages as may be sustained by and
awarded to the claimant

4. Action against Indemnity

a. Action against indemnity bond must be filed
within 120 days from date of filing of the
bond
b. After lapse of 120 days, no claim for damages
for taking or keeping of property may be
enforced against the bond

The right of a third-party claimant to file a terceria is

founded on his title or right of possession. Corollary
115
 RULES ON REDEMPTION
WHEN AVAILABLE
1. For personal property – there is NO right of
redemption as the sale is absolute
2. For real property – right of redemption is
available
WHO MAY REDEEM REAL PROPERTY SO SOLD (Rule
39, Sec. 27)
Who may redeem:
1. Judgment obligor, or his successor in interest, in
the whole or any part of the property
2. Remptioner who is a creditor having a lien by
virtue of an attachment, judgment or mortgage
on the property sold, subsequent to the lien
which the property was sold
Successors-in-interest - They include, among others, one to
whom the debtor has conveyed HIS INTEREST in the
property for purposes of redemption
The Redemptioner
He is a creditor with a lien SUBSEQUENT to the judgment
which was the basis of the execution sale.
Unlike the judgment debtor, a redemptioner must prove
his right to redeem by producing the documents required
in Sec. 30, to wit:
1. Copy of the judgment or final order under which
he claims the right to redeem certified by the
clerk wherein judgment or final order was
entered OR
2. If he redeems upon a mortgage or other lien, a
memorandum of the record thereof, certified by
the Register of Deeds; OR
3. An original or certified copy of any assignment
necessary to establish his claim; OR
4. An affidavit executed by him or his agent
showing the amount then actually due on the lien
(Sec. 30)
If the lien of the creditor is PRIOR to the judgment under
which the property was sold:
1. He is not a redemptioner
2. He cannot redeem since his interests in his lien
are fully protected. Any purchaser at a public
auction takes the same subject to such prior lien
which he has to satisfy
WHEN CAN REDEMPTION BE MADE (Rule 39, Sec. 28)
WHO WHEN
By the JUDGMENT Within 1 year from date of
DEBTOR registration of certificate of sale
By FIRST Within 1 year from date of
REDEMPTIONER registration of certificate of sale
BY ALL Within 60 days from last redemption
SUBSEQUENT PROVIDED that judgment debtor has
116
REDEMPTIONERS not exercised his right of
redemption
In all cases, judgment debtor shall have the entire 1 year
period from date of registration of sale to redeem the
property. If judgment debtor redeems, no further
redemption is allowed (Sec. 29).
NOTE: There is no extension or interruption of
redemption period.
REDEMPTION PRICE
1. By the Judgment Debtor or First Redemptioner:
a. Purchase PRICE
b. 1% INTEREST thereon up to time of
redemption
c. Any amount of ASSESSMENTS OR TAXES
which purchaser may have paid after
purchase as well as interest on such last
named amount at the same rate
d. If purchaser is also a creditor having a PRIOR
LIEN to that of redemptioner, other than the
judgment under which such purchase was
made, the AMOUNT of such OTHER LIEN,
also with interest
2. By all Subsequent Redemptioners
a. AMOUNT paid on last redemption
b. 2% INTEREST thereon
c. Any amount of ASSESSMENTS OR TAXES
which purchaser may have paid after
purchase as well as interest on such last
named amount at the same rate
d. Amount of any LIENS held by said last
redemptioner prior to his own, also with
interest
NOTE: The redemption price for subsequent redemption
shall be the same, so the price becomes higher and higher.
EFFECT OF REDEMPTION BY THE JUDGMENT
OBLIGOR (Rule 39, Sec. 29)
If Judgment debtor redeems the property:
1. No further redemption is allowed
2. He is restored to his estate
When a judgment debtor redeems the property, what is
effected is the elimination of the lien created by the levy
on attachment or judgment on the registration of
mortgage thereon. Note that he never lost ownership so
there is no recovery of ownership.
Payments mentioned in Sec. 28 and 29 may be made to the:
1. Purchaser, or
2. Redemptioner, or
3. For him to the officer who made the sale
The person to whom redemption payment is made must
execute and deliver to him a CERTIFICATE OF
REDEMPTION
 1. Acknowledged by a notary public or other officer
authorized to take acknowledgements of
conveyances of real property
2. Filed and recorded in the registry of deeds of the
place which the property is situated
3. Registrar must note the record on the margin of
the record of the certificate of sale
RIGHTS PENDING REDEMPTION (Rule 39, Sec. 31 and
32)
Right of Judgment Creditor Pending Redemption
1. Apply for injunction to restrain the commission
of waste on the property
Rights of the Judgment Debtor Pending Redemption
1. Remain in possession of the property
2. Cannot be ejected
3. Use the property in the same manner it was
previously used
4. Make necessary repairs to buildings thereon
while he occupies the property
5. Use it in the ordinary course of husbandry (Sec.
31); and
6. Collect rents, earning and income derived from
property until the expiration of period of
redemption
EXPIRATION OF REDEMPTION PERIOD (Rule 39, Sec.
33)
Judgment obligor shall have the entire period of ONE
YEAR from date of registration of sale to redeem the
property
Entitlement to a CONVEYANCE and POSSESSION:
1. To the PURCHASER
 If there is no redemption made within 1 year
from date of registration of the certificate of
sale
2. To the LAST REDEMPTIONER
 If there was redemption, and 60 days have
elapsed and no other redemption has been
made
 Notice must have been given, and the
redemption period has elapsed
Two Documents which the Sheriff Executes in case of Real
Property
1. CERTIFICATE OF SALE
 After auction sale, he will execute in favor of
the purchaser the certificate of sale under
Sec. 25
 From registration of said certificate, the one
year redemption period starts
 Certificate of sale after execution sale is
merely a memorial of the fact of sale and
does not operate as conveyance
2. DEED OF CONVEYANCE
117
 Issued if after expiration of redemption
period there is no redemption
 Operates to transfer to purchaser whatever
rights the judgment debtor had in the
property
 The effect of a final deed of sale transfers the
right as of the time of the levy
RECOVERY OF PRICE IF SALE IS NOT EFFECTIVE (Rule
39, Sec. 34)
Purchaser may recover the purchase price WHEN:
1. Purchaser or his successor-in-interest fails to
recover possession the property; or
2. Evicted due to:
a. Irregularities in the proceedings concerning
the sale; or
b. Judgment has been reversed or set aside; or
c. The property sold was exempt form
execution; or
d. A third person has vindicated his claim to the
property
Remedies of the Purchaser
1. File a motion in the same action or file a separate
action to recover from judgment creditor the
price paid
2. File a motion for revival of judgment in his name
against judgment debtor; or
3. Bring an action to recover possession of property
Effect of revived judgment – it has the same force and
effect as an original judgment would have as of the date of
revival and no more
REMEDIES OF JUDGMENT CREDITOR IN AID OF
EXECUTION OR IF JUDGMENT IS NOT FULLY
SATISFIED (Rule 39, Sec. 36 – 43)
1. SEC. 36 – If execution is returned unsatisfied, he
may cause examination of the judgment debtor as
to his property and income
a. When: At any time after return is made
b. The court issues an order requiring the
judgment debtor to appear and be examined
c. Limitations on examination:
(1) Judgment debtor cannot be made to
appear before a judge or commissioner
outside the province where debtor
resides
(2) He may no longer be examined after
lapse of 5 years within which a judgment
may be enforced by motion for execution
(Umali v. Coquia)
2. SEC. 37 – He may cause examination of the
debtor of the judgment debtor as to any debt
owed by him or to any property of the judgment
debtor in his possession
a. Requisites:
(1) The writ must be returned unsatisfied;
and
 (2) Proof that person, corporation, or other
legal entity has property of such
judgment debtor or is indebted to him
b. Where? Before a judge or commissioner
appointed by him at a time and place where
such debtor resides or is found
c. Effect: Service of order shall bind all credits
due to judgment debtor and all money and
property
d. This rule is not applicable if there is no issue
concerning the indebtedness of the person
3. SEC. 37 – If after examination, court finds
property of the judgment debtor, either in his
own hands or that of any a person, court may
order the property applied to the satisfaction of
judgment
a. SEC. 39 - Note that the person indebted to
judgment obligor may pay to the sheriff
holding the writ the amount of his debt or so
much thereof as may be necessary to satisfy
the judgment
8. SEC. 43 – Institution of an action to recover
property
a. If person alleged to have property of
judgment debtor or person indebted to him,
claims an adverse interest in the property or
denies his debt
b. Court may authorize judgment creditor to
bring an action to recover the property,
forbid its transfer
c. Action must be instituted within 120 days
from notice of order
d. Failure is contempt
e. Such order may be modified or vacated at
any time by the court

4. SEC. 38 – A party or other person may be

compelled to attend before the court or
commissioner to testify as provided in Sec. 36
and 37
a. This must be done by order of the court or by
subpoena
b. Failure to obey: Contempt
c. All examinations and answers must be under
oath

5. SEC. 40 – Order for application of property and

income to satisfaction of judgment
a. Court may order any property of judgment
debtor, or any money due him, or in the
hands of another to be applied to the
satisfaction of judgment
b. If the court finds the earning of the judgment
debtor for his personal services are MORE
than sufficient for his family’s needs, it may
order payment in FIXED MONTHLY
INSTALLMENTS
c. Failure to do so: Punish for contempt

6. SEC. 41 – Appointment of a Receiver

a. Court may appoint a receiver for the
property of judgment debtor not exempt
from execution
b. Court may also forbid disposition or
interference with the property

7. SEC. 42 – Sale of Ascertainable Interest of

Judgment Obligor in Real Estate by Receiver
a. Requisites:
(1) The court finds that the judgment debtor
has an ascertainable interest in real
property
(2) Such interest can be ascertained without
controversy
b. If the requisites are met, the court can order
the sale of such interest. Procedure is the
same as in sale of real estate upon execution
118
 EFFECT OF JUDGMENT OR FINAL ORDERS 1. A FINAL judgment or order
2. JURISDICTION over the subject matter and the
Rule 39, Sec. 47 refers to judgments which are considered parties by the court rendering it
as conclusive and may be rebutted directly by means of 3. Judgment UPON MERITS
relief from judgment or annulment of judgment or 4. Between the TWO CASES, there is:
indirectly by offering them in evidence under the parole a. IDENTITY OF PARTIES
evidence rule. b. IDENTITY OF SUBJECT MATTER
c. IDENTITY OF CAUSE OF ACTION
Immutability of Judgments - Once a judgment attains
finality it thereby becomes immutable and unalterable General Rule: For res judicata to apply, trial must be made
on the merits of the case.

DUAL ASPECT OF RES JUDICATA
1. Bar by Former Judgment - Direct Estoppel by
Judgment; covers paragraph (a) and (b)
2. Conclusiveness of Judgment –Estoppel by Verdict,
Estoppel by Record, Collateral Estoppel by
Judgment or Preclusion of Issues or Rule of Auter
Action Pendant; it covers paragraph (c)
Exception: Section 3, Rule 17 of ROC: If plaintiff fails to
appear at the time of the trial , or to prosecute his action
for an unreasonable length of time, or to comply with
these rules or any order of the court, the action may be
dismissed upon motion of the defendant or upon the
court's own motion . This dismissal shall have the effect of
an adjudication upon the merits , unless otherwise
provided by court. [Development Bank v. CA]

BAR BY FORMER CONCLUSIVENESS OF Res Judicata in Judgments in Rem

JUDGMENT JUDGMENT
There is only identity of
There is identity of Judgments or final order Conclusive as to
parties and subject matter
parties, subject matter,
Cause of action are
and causes of action Against a specific thing Title of the thing
different
The first judgment is The will or administration.
The first judgment conclusiveness only as to However, the probate of a
constitutes as an absolute matters directly adjudged Probate of a will or will or granting of letters of
bar to all matters directly and actually litigated in the administration of the estate administration shall only
adjudged and those that first action. of a deceased person be prima facie evidence of
might have been adjudged The second action can be the death of the testator or
prosecuted intestate;
Preclusion of claims Preclusion of issues only in respect to the personal,
political, or legal condition
Condition, status or
or status of a particular
relationship of the person,
BAR BY FORMER JUDGMENT person or his relationship
to another
Res judicata is a rule that a final judgment rendered by a
court of competent jurisdiction on the merits is Res Judicata in Judgments in Personam
conclusive as to the rights of the parties and their privies,
and, as to them, constitutes an absolute bar to a In other cases, the judgment or final order is, with respect
subsequent action involving the same claim, demand, or to the matter directly adjudged or as to any other matter
causes of action. that could have been missed in relation thereto,
conclusive:
IN REM IN PERSONAM 1. Between the parties and
(Paragrah A) (Paragraph B) 2. Their successors in interest, by title subsequent
The judgment or final to the commencement of the action or special
order is CONCLUSIVE as proceeding, litigating for the same thing and
Decision is CONCLUSIVE under the same title and in the same capacity.
between parties and their
upon title the thing, will or
successors in interest,
administration of
litigating for the same
condition, status or CONCLUSIVENESS OF JUDGMENT
thing and under the same
relationship of the person
title an in the same
capacity Preclusion of issues (auter action pendant)
e.g. land registration e.g. accion reinvindicatoria
In any other litigation between the same parties or their
Bar by prior judgment is a preclusion of claims - The first successors in interest, that only is deemed to have been
judgment is a bar to the prosecution of a second action adjudged in a former judgment or final order which
upon the same claim, demand, or cause of action appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or
Requisites: necessary thereto.

119
 EFFECT OF FOREIGN JUDGMENTS OR FINAL
Issue Preclusion – The first judgment precludes the re- ORDERS
litigation of a particular fact or issue in another action
between the same parties on a different cause of action.
PUBLIC POLICY PRINCIPLE
Requisite: Identity of ISSUES
A judgment by a foreign court is enforceable only within
its territorial jurisdiction.
RES JUDICATA v. LAW OF THE CASE v. STARE DECISIS
A valid judgment rendered by a foreign tribunal may be
Stare Decisis - When the SC has laid down a principle of recognized insofar as the immediate parties the
law applicable to a certain state of facts, it will adhere to underlying cause of action are concerned so long as it is
that principle and apply to it all future cases where the convincingly shown that:
facts are substantially the same 1. There has been an opportunity for a fair hearing
before a court of competent jurisdiction
Doctrine of the Law of the Case - Whatever is once 2. Trial upon registered proceedings has been
irrevocably established as the controlling legal rule or conducted
decision between the same parties in the case continues 3. There is nothing to indicate either a prejudice in
to be the law of the case whether correct on general court and in the system of laws under which it is
principles or not, so long as the facts on which such sitting or fraud in procuring the judgment
decision was predicated continue to be the facts of the [Philippine Aluminum v. Fasgi Enterprises (2000)]
case before the court.
Such limitation on the review of foreign judgment is
As discussed in Ayala Corp. v. Rosa-Diana Realty, 2000: adopted in all legal systems to avoid repetitive litigation
on claims and issues, prevent harassment of the parties
Res Judicata “Law of the Case” Stare Decisis and avoid undue imposition on the courts.
Operates only in
The ruling in
the particular and This policy of preclusion rests on principles of comity,
one case is
single case where utility and convenience of nations.
carried over to
the ruling arises
another case
and is not carried As a generally accepted principle of international law, it is
between the
into other cases as part of the law of the Philippines by virtue of the
same parties
a precedent Incorporation Clause [Section 2, Article II of the 1987
Once a point of Constitution] [Regalado]
law has been
established by the Two Ways of Giving Effect to Foreign Judgment:
The ruling
court, that point 1. An ordinary action to enforce the foreign
adhered to in the
of law will, judgment may be filed in court; or
particular case
generally, be 2. It may be pleaded in an Answer or a Motion to
need not be
followed by the Dismiss.
followed as a
same court and by
precedent in
all courts of lower
subsequent
rank in EFFECT OF FOREIGN JUDGMENTS (Rule 39, Sec. 48)
litigation between
subsequent cases
other parties
where the same NATURE EFFECT
legal issue is In judgments against a Judgment is CONCLUSIVE
raised specific thing (in rem) upon the title to the thing
Judgment is PRESUMPTIVE
evidence of a right as
In judgments against a
between parties and their
person (in personam)
successors-in-interest by a
subsequent title

In both cases, judgment may be repelled by evidence of:

1. Want of jurisdiction
2. Want of notice
3. Collusion
4. Fraud
5. Clear mistake of law or fact

A foreign judgment is presumed to be valid and binding in

the country from which it comes, until a contrary
showing, on the basis of a presumption of regularity of
120
proceedings and the giving of due notice in the foreign
forum.

Before our courts can give the effect of res judicata to a

foreign judgment, it must be shown that the parties
opposed to the judgment had been given ample
opportunity to do so on grounds under Section 48 of Rule
39 of the Rules of Court. [Roehr v. Rodriguez (2003)]

121
PROVISIONAL
REMEDIES
NATURE OF PROVISIONAL REMEDIES
Provisional remedies are writs and processes available
during the pendency of the action which may be resorted
to by a litigant for the preservation or protection of their
rights and interests therein pending rendition, and for
purposes of the ultimate effects, of a final judgment in the
case; also known as ancillary or auxiliary remedies.
They are applied to a pending litigation, for the purpose
of securing the judgment or preserving the status quo, and
in some cases after judgment, for the purpose of
preserving or disposing of the subject matter. [Calo v.
Roldan (1946)]
Orders granting or denying provisional remedies are
merely interlocutory and cannot be the subject of an
appeal. They may however be challenged before a
superior court through a petition for certiorari under Rule
65.
The Provisional Remedies under the Rules of Court
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
NOTE: The enumeration above is not exclusive. The
court may invoke its equity jurisdiction and order the
appropriate reliefs during the pendency of an action
JURISDICTION OVER PROVISIONAL
REMEDIES
The court which grants or issues a provisional remedy is
the court which has jurisdiction over the main action.
Inferior courts may also grant all appropriate provisional
remedies in an action pending with it and is within its
jurisdiction (Sec. 33, (1), BP 129)
122
PRELIMINARY ATTACHMENT
DEFINITION
A provisional remedy issued upon order of the court
where an action is pending to be levied upon the property
of the defendant so the property may be held by the
sheriff as security for the satisfaction of whatever
judgment may be rendered in the case [Davao Light v CA
](1991)
PURPOSES
1. To seize the property of the debtor in advance of
final judgment and to hold it for purposes of
satisfying the said judgment.
2. To enable the court to acquire jurisdiction over
the action by the actual or constructive seizure of
the property in those instances where personal
service of summons on the creditor cannot be
effected. [Quasha v. Juan (1982)]
GROUNDS FOR ISSUANCE (Rule 57, Sec. 1)
There are only specific situations where preliminary
attachment may issue. The grounds are EXCLUSIVE:
1. Action for recovery of a specified amount of
money or damages, EXCEPT moral and
exemplary,
a. On a cause of action arising from law,
contract, quasi-contract, delict, or quasi-
delict
b. Against a party who is about to depart from
the Philippines with intent to defraud his
creditors;
2. Action for money or property, embezzled or
fraudulently misapplied or converted to his own
use by either:
a. A public officer, an officer of a corporation,
an attorney, factor, broker, agent, or clerk, in
the course of his employment as such,
b. OR by any other person in a fiduciary
capacity, or for a willful violation of duty;
3. Action to recover the possession of property
unjustly or fraudulently taken, detained or
converted,
a. When the property, or any part thereof, has
been concealed, removed, or disposed of to
prevent its being found or taken by the
applicant or an authorized person;
NOTE: rule makes no distinction between
real and personal property [Riano]
4. Action against a party who has been guilty of a
fraud in contracting the debt or incurring the
obligation upon which the action is brought, OR
in the performance thereof;
 NOTE: the delivery of counterfeit money
or knowingly issuing a bounced check
are considered as grounds under this
rule [Riano]
5. Action against a party who has removed or
disposed of his property, or is about to do so,
AND with intent to defraud his creditors; or
6. Action against a party who does not reside and is
not found in the Philippines, OR on whom
summons may be served by publication.
Note: the rule also refers to persons on
whom summons may be served by
publication and against whose property,
preliminary attachment may be availed
of such as:
(1) Residents defendants whose identity
or whose whereabouts are unknown
[Rule 14, Sec. 14]
(2) Resident defendants who are
temporarily out of the country [Rule
14, Sec. 16]
REQUISITES FOR PRELIMINARY ATTACHMENT TO
ISSUE:
1. The case must be any of those where preliminary
attachment is proper (Sec. 1, Rule 57)
2. Applicant must file a motion whether ex parte or
with notice and hearing
3. Applicant must show by affidavit that there is no
sufficient security for the claim sought to be
enforced and that the amount claimed in the
action is as much as the sum of which the order is
granted above all counterclaims
4. Applicant must post a bond executed to adverse
party
A writ of preliminary attachment is too harsh a
provisional remedy to be issued based on
mere abstractions of fraud. Rather, the rules require that
for the writ to issue, there must be a recitation of clear
and concrete factual circumstances manifesting that the
debtor practiced fraud upon the creditor at the time of the
execution of their agreement in that said debtor had a
preconceived plan or intention not to pay the creditor.
[Equitable v. Special Steel (2012)]
ISSUANCE AND CONTENTS OF ORDER OF
ATTACHMENT (Rule 57, Sec. 2)
When may one apply: A preliminary attachment may be
applied for
1. At the commencement of the action or
2. At any time before the entry of judgment.
Who may apply: It may be applied for by the plaintiff OR
any proper party (including a defendant who filed a
counterclaim, cross-claim, or a third party complaint)
Methods to Procure Preliminary Attachment:
123
1. Writ may be prayed for in the complaint itself
providing the allegations warranting its issuance
2. May be issued pursuant to a separate motion for
attachment whenever the writ is not prayed for
in the original complaint
Three Stages in the Grant of a Preliminary Attachment:
1. The court issues the order granting the
application
2. Writ of attachment issues pursuant to the order
granting the writ
3. The writ is implemented
NOTE: For the initial two stages, it is not
necessary that jurisdiction over person of
defendant be first obtained
However, once implementation of writ
commences, court must have acquired
jurisdiction over the defendant for without such
jurisdiction, the court has no power or authority
to act
Issuance of the Order of Attachment
1. The order may be issued either:
a. Ex parte (service of summons to defendant
required)
b. Or upon motion with notice and hearing
2. The order is issued by the court in which the
action is pending or the CA, or the SC
Contents of the Order of Attachment:
1. It must require the sheriff to attach so much of
the property of the party against whom it is
issued as may be sufficient to satisfy applicant’s
demand
a. Property must be within the Philippines
b. And it must not be exempt from execution
2. It shall contain an amount for the attachment
bond:
a. The amount sufficient to satisfy the
applicant’s demand, or
b. The value of the property to be attached as
stated by applicant
AFFIDAVIT AND BOND (Rule 57, Sec. 3 and 4)
For the writ to issue, the applicant must submit an
affidavit and post bond. The affidavit and bond required
must be duly filed with the clerk before order issues
Contents of the Affidavit: The affidavit must establish:
1. A sufficient cause of action exists
2. Cause is one of those mentioned in Sec. 1
3. No other sufficient security for the claim sought
to be enforced by action
4. Amount due to applicant or possession of which
is entitled to recover is as much as the sum for
which the order is granted above all legal
counterclaims
Applicant’s Bond: The party applying for the order must
give a bond executed to the adverse party
1. Amount is fixed by the court in its order granting
the issuance of the writ
2. Conditioned that, if the court shall finally adjudge
that applicant was not entitled to the writ, the
bond will pay:
a. All costs which may be adjudged to adverse
party and
b. All damages which he may sustain by reason
of attachment
The bond shall only be applied to all damages sustained
due to the attachment. It cannot answer for those that do
not arise by reason of the attachment [Riano].
THE RULE ON PROR OR CONTEMPORANEOUS SERVICE
OF SUMMONS
General Rule: A writ of attachment may be issued ex parte
even before the summons is served upon the defendant.
BUT a writ may not be implemented until jurisdiction
over the person is acquired by service of summons.
Otherwise, the implementation is null and void. [Riano]
Exceptions to Contemporaneous Service of Summons: [Rule
57, Sec. 5]
1. Summons could not be served personally or by
substituted service despite diligent efforts, or
2. Defendant is a resident of the Philippines
temporarily absent therefrom, or
3. Defendant is a non-resident, or
4. The action is in rem or quasi in rem.
MANNER OF ATTACHING PROPERTY (Rule 57, Sec. 5)
The sheriff enforcing the writ shall attach only so much of
the property in the Philippines of the adverse party not
exempt from execution as may be sufficient to satisfy the
applicant’s demand, UNLESS
1. Party against whom writ is issued makes a
deposit with the court from which the writ is
issued, or
2. He gives a counter-bond executed to the
applicant
ATTACHMENT OF REAL AND PERSONAL PROPERTY
(Rule 57, Sec. 7)
1. Real property, or growing crops thereon, or any
interest therein
a. File with the Registry of Deeds:
(1) A copy of the order together with a
description of the property
(2) And a notice that the property is
attached
b. The registrar of deeds must index
attachments in the names of the applicant,
adverse party, or person by whom the
124
property is held or in whose name it stands
in the records
c. If attachment is not claimed on the entire
area of land, description sufficiently accurate
for identification of such shall be included in
the registration
2. Personal property capable of manual delivery
a. Issue a corresponding receipt therefor
b. Then sheriff takes it and safely keeps it in his
custody
3. Stocks or Shares, or an Interest therein, of any
corporation or company
a. Leave a copy of the writ and a notice stating
that these properties are attached in
pursuance of such writ
b. Leave these documents with the president,
or managing agent thereof
4. Debts, credits, bank deposits, financial interest,
royalties, commissions and other personal
property not capable of manual delivery
1. Leave a copy of the writ and a notice that the
debts owing, credits, and other personal
property are attached in pursuance of such
writ
2. Leave these documents with:
a. The person owing such debts, or
b. Having in his possession or under his
control, such credits or other personal
property, or
c. With his agent
5. The interest of the party against whom
attachment is issued in property belonging to the
estate of decedent, whether as heir, legatee, or
devisee
a. By service of a copy of the writ, and notice
that said interest is attached
b. Service is made to:
(1) The executor, or administrator, or
(2) Other personal representative of the
decedent
c. Copy of the writ and notice:
(1) Shall be filed with the clerk in which said
estate is being settled, and
(2) Served upon the heir, legatee, or devisee
concerned
Property in custodia legis may be attached by:
1. Filing a copy of the writ of attachment with the
proper court or quasi-judicial agency
2. Serving a notice of attachment upon the
custodian of the property [Rule 57, Sec. 7]
A previously attached property may also be subsequently
attached. But the first attachment shall have priority over
subsequent attachments. [Riano]
PROCEEDINGS WHERE ATTACHED PROPERTY IS
CLAIMED BY THIRD PERSON
A third person who has a claim to the property attached
may avail of the following remedies:
1. File terceria or third-party claim (Rule 57, Sec. 14)
a. Note that a third-party claim may be filed
with the sheriff while has possession of the
properties levied upon, this being the only
time fixed for the purpose
b. The claimant makes an affidavit of his title or
right to possession, stating the grounds of
such right or title. The affidavit must be
served upon the sheriff
c. Substantial identical procedure as in terceria
in Rule 39, Sec. 16
2. File independent action to recover property; or
issuance, does not operate to discharge the
sureties on the attachment bond
2. That bond is executed to adverse party
conditioned that the applicant will pay all the
costs which may be adjudged to adverse party
and all damages which he may sustain by reason
of the attachment, if the court shall finally
adjudge that applicant was not entitled thereto
(Sec. 4)
3. Until that determination is made, as to applicant’s
entitlement to attachment, his bond must stand
and cannot be withdrawn
SATISFACTION OF JUDGMENT OUT OF PROPERTY
ATTACHED (Rule 57, Sec. 15)

3. File motion for intervention Procedure:

a. This is available only before judgment is
rendered
DISCHARGE OF ATTACHMENT AND COUNTER-BOND
After a writ of attachment has been enforced, the party
whose property has been attached, or the person
appearing on his behalf, may move for the discharge of
the attachment wholly or in part on the security given.
Ways of Discharging Attachment
1. Counterbond under Sec. 12
2. Motion for Discharge under Sec. 13
1. Pay to judgment obligee the proceeds of sale of
perishable property
2. If there is any balance that remains due, sell
property as may be necessary to satisfy the
balance if enough remains in the sheriff or those
of the clerk
3. Collection of property of garnishee and proceeds
paid to judgment oblige without need of prior
permission to file action but may be enforced in
the same action
4. Return must be made within 10 days from
receipt of writ

Grounds for Discharge of Preliminary Attachment:

1. Debtor has posted a counterbond or has made
the requisite cash deposit (Sec. 12)
2. Attachment was improperly or irregularly issued
(Sec. 13)
a. As where there was no ground for
attachment, or
b. The affidavit and/or bond filed are defective
or insufficient (Sec. 3)
3. Judgment is rendered against attaching creditor
(Sec. 19)
4. Attachment is excessive, but the discharge shall
be limited to the excess (Sec. 13)
5. Property attached is exempt from execution

NOTE: There is a difference between the bond for

issuance of writ and bond for lifting the writ
1. Bond for issuance of writ (Sec. 4) – This is for
damages by reason of the issuance of the writ
2. Bond for lifting of writ (Sec. 5 and 12) – This is to
secure the payment of the judgment to be
recovered

Only the defendant or party whose property is attached

may move for its lifting. If the attachment is proper, the
discharge should be by counterbond under Sec. 12 (KO
Glass v. Valenzuela)

Effect of Dissolution on Plaintiff’s Attachment Bond

1. Dissolution of preliminary attachment upon
security given, or a showing if its irregular
125
 PRELIMINARY INJUNCTION Status Quo Order v. Injunction

A status quo order is in the nature of a cease and desist

DEFINITIONS AND DIFFERENCES
Injunction is a judicial writ, process, or proceeding
whereby a party is ordered to do or refrain from doing a
particular act
order. It is resorted to when the projected proceedings in
the case made the conservation of the status quo desirable
or essential, but the affected party neither sought such
relief nor did the allegations in his pleading sufficiently
make out a case for a temporary restraining order.

Preliminary Injunction is an ancillary or preventive
remedy where a court requires a person, a party or even a
court or tribunal either to REFRAIN (prohibitory) from or
to PERFORM (mandatory) particular acts during the
pendency of an action. It is only a temporary remedy.
It does NOT direct the doing or undoing of acts but is an
order to maintain the last, actual, peaceable and
uncontested state of things which preceded the
controversy.

Status Quo Anter Order

Injunction Preliminary injunction
Directs the maintenance of the condition prevailing
Ancillary; exists only as before the promulgation of the assailed decision.
part or incident of an
Main action It has the nature of a TRO. [Dojillo v. COMELEC, 2006]
independent action or
proceeding
sole object of which is to
seeks a judgment REQUISITES:
preserve the status quo
embodying a final 1. There must be a verified application
until the merits can be
injunction 2. The applicant must establish that:
heard
Based on all evidence a. He has a right to relief or a right to be
based solely on initial and protected and
gathered by court to
incomplete evidence b. The act against which the injunction is
determine main action
sought violates such right
Purpose: To prevent future injury and maintain the status c. There is a need to restrain the commission or
quo (i.e. the last actual, peaceable, uncontested status continuance of the acts complained of and if
which preceded the pending controversy) for [Knecht v. not enjoined would work injustice to him
CA, (1993)] 3. A bond must be posted unless otherwise
exempted by the court
The injunction should not establish new relations 4. The threatened injury must be incapable of
between the parties but merely re-establish the pre- pecuniary estimation
existing relationship between them. 5. Prior notice and hearing for party/person sought
to enjoined (except in 72-hour TROs)
TRO v. Injunction
KINDS OF INJUNCTION
TRO
Injunction Kinds of Injunction:
1. Preliminary Preventive Injunction – Prohibits the
May be granted ex parte if
performance of a particular act or acts
great and irreparable Cannot be granted without
injury would result notice and hearing
2. Preliminary Mandatory Injunction – Requires the
otherwise
performance of a particular act or acts. This is an
extreme remedy which will be granted only on
A TRO is issued in order to preserve the status quo until
showing that:
the hearing of the application for preliminary injunction.
a. The invasion of the right is material and
[Bacolod City Water v. Labayen (2004)]
substantial
b. Right of complainant is clear and
Same requirements for application as preliminary
unmistakable
injunction.
c. There is an urgent and paramount necessity
An application for a TRO shall be acted upon only after all
PRELIMINARY
parties are heard in a summary hearing, which shall be PRELIMINARY
PROHIBITORY
conducted within 24 hours after the sheriff's return of MANDATORY INJUNCTION
INJUNCTION
service and/or the records are received by the branch
Purpose is to prevent a
selected by raffle. [Rule 58, Sec.4 Purpose is to require a
person from the
person to perform a
performance of a
particular act
particular act
126
 The act has already been
The act had not yet been performed and this act has
performed violated the rights of
another
Status Quo is preserved Status Quo is restored
When preventive injunction does not lie; examples:
1. To restrain collection of taxes [Valley Trading v.
CA](1989), except where there are special
circumstances that bear the existence of
irreparable injury. [Churchill & Tait v. Rafferty
(1915)]
2. To restrain the sale of conjugal properties where
the claim can be annotated on the title as a lien,
such as the husband’s obligation to give support.
[Saavedra v. Estrada (1931)]
3. To restrain a mayor proclaimed as duly elected
from assuming his office. [Cereno v. Dictado
(1988)]
4. To restrain registered owners of the property
from selling, disposing and encumbering their
property just because the respondents had
executed Deeds of Assignment in favor of
petitioner. [Tayag v. Lacson (2004)]
5. Against consummated acts. [PNB v. Adi (1982);
Rivera v. Florendo (1986); Ramos, Sr. v. CA
(1989)]
When mandatory injunction does not lie; examples
1. To compel cohabitation [Arroyo v. Vasquez
(1921)]
2. Cancellation of attachment [Levy Hermanos v.
Lacson (1940)]
3. Release imported goods pending hearing before
the Commissioner of Customs. [Commissioner of
Customs v. Cloribel (1967)]
4. To take property out of the possession or control
of one party and place it into that of another
whose title has not clearly been established [Pio
v. Marcos (1974)]
WHEN WRIT MAY BE ISSUED
When: It may be issued at ANY stage PRIOR to the
judgment or final order
Who: It may be granted by the court where the action or
proceeding is pending. If the action or proceeding is
pending in the Court of Appeals or in the Supreme Court,
it may be issued by said court or any member thereof.
(Rule 58, Sec. 2)
GROUNDS FOR THE ISSUANCE OF PRELIMINARY
INJUNCTION (Rule 58, Sec. 3)
Preliminary injunction may be granted when it is
established that:
1. Applicant is entitled to the relief demanded, or
2. Commission, continuance, or non-performance of
the act complained of would work injustice to
applicant, or
127
3. Party, court, agency or a person is doing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some act or
acts probably in violation of the rights of the
applicant respecting the subject of the action or
proceeding
GROUNDS FOR OBJECTION TO, OR FOR MOTION OF
DISSOLUTION OF, INJUNCTION OR RESTRAINING
ORDR (Rule 58, Sec. 6)
Grounds for objection or dissolution
1. Upon showing of its insufficiency
2. Other grounds upon affidavits of the party or
person enjoined. This may be opposed by the
applicant by affidavits
3. If it appears after hearing that although applicant
is entitled to injunction or TRO, the issuance or
continuance thereof, would cause irreparable
damage to party enjoined while applicant can be
fully compensated for such damages as he may
suffer
a. PROVIDED that he files a bond
(1) Amount to be fixed by the court
(2) Conditioned that he will pay all damages
which the applicant may suffer by denial
or dissolution of the injunction or TRO
If it appears that the extent of the preliminary injunction
or restraining order granted is too great, it may be
modified.
TEMPORARY RESTRAINING ORDER (TRO)
General Rule: Before preliminary injunction may be
granted, there must be prior notice to person sought to be
enjoined and there must be a hearing
Procedure: When an application for a writ of preliminary
injunction or TRO is included in a complaint or initiatory
pleading, the case, if filed in a multiple-sala, shall proceed
as follows:
1. Verified complaint and bond is filed
2. Determine if there is great or irreparable injury
or extreme urgency, which warrants the issuance
of a TRO
a. If yes, go to Procedure for Issuance of TRO
3. In both cases, Notice shall then be served to the
party sought to be enjoined
(a) There must be prior and contemporaneous
service of summons (exceptions also apply)
Procedure for Issuance of TRO:
1. If it appears that great or irreparable injury
would result to the applicant before the matter
can be heard on notice:
a. Summary hearing on the application of the
TRO within 24 hours after sheriff’s return of
service and/or records are received by the
branch selected by raffle
 b. The court may issue a TRO effective for 20 Upon the expiration of the non-extendible period, the TRO
days from service on the party sought to be is automatically terminated. No judicial declaration
enjoined necessary.

Within the 20 day period: IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO

(1) The applicant must show cause why OR WRIT OF INJUNCTION IN CASES INVOLVING
injunction should not be granted GOVERNMENT INFRASTRUCTURE PROJECTS
(2) The court will determine WON the
preliminary injunction shall be granted. Sec. 3, RA 8975: No court, except the Supreme Court, shall
If granted, the court will issue the issue any TRO, preliminary injunction or preliminary
corresponding order mandatory injunction against the government, or any of
its subdivisions, officials or any person or entity, whether
2. If the matter is of extreme urgency and the public or private acting under the government direction,
applicant will suffer grave injustice and to restrain, prohibit or compel the following acts:
irreparable injury 1. Acquisition, clearance and development of the
a. A TRO may be issued ex parte (after raffling right-of-way and/or site or location of any
of case) ordered by the Executive judge of a national government project
multiple sala court or the presiding judge of a 2. Bidding or awarding of contract/ project of the
single-sala court national government as defined under Section 2
b. Effective for 72 hours from issuance hereof;
(1) The applicant must then immediately 3. Commencement prosecution, execution,
comply with Sec. 4 as to service of implementation, operation of any such contract
summons and documents or project;
(2) The Executive Judge shall then summon 4. Termination or rescission of any such
the parties to a conference and raffle the contract/project; and
case in their presence 5. The undertaking or authorization of any other
lawful activity necessary for such
Within the 72-hr period contract/project.
(1) The Presiding Judge before whom the
case is pending shall conduct a summary This prohibition shall apply in all cases, disputes or
hearing to determine whether the TRO controversies instituted by a private party, including but
shall be extended until application for not limited to cases filed by bidders or those claiming to
preliminary injunction can be heard have rights through such bidders involving such
(2) In no case shall the total period of contract/project.
effectivity of the TRO exceed 20 days,
including the original 72 hours This prohibition shall NOT APPLY when the matter is of
extreme urgency involving a constitutional issue, such
Effectivity of TRO that unless a temporary restraining order is issued, grave
1. Effectivity is not extendible. No court shall have injustice and irreparable injury will arise. The applicant
authority to extend or renew the same on the shall file a bond, in an amount to be fixed by the court,
ground for which it was issued which bond shall accrue in favor of the government if the
2. If issued by the CA – effective for 60 days from court should finally decide that the applicant was not
service entitled to the relief sought.
3. If issued by SC – effective until further orders
Any TRO, preliminary injunction, or preliminary
TRO ISSUED BY mandatory injunction issued in violation of Sec. 3 is void
EXECUTIVE JUDGE and of no force and effect. [Sec 4]
TRO ISSUED BY
(MULTI-SALA) OR
ORDINARY JUDGE
ORDINARY JUDGE
(SINGLE-SALA) RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF
Matter is of extreme SUMMONS IN RELATION TO ATTACHMENT
urgency and that grave If it appears that great or
injustice and irreparable irreparable injury would When an application for a writ of preliminary injunction
injury will arise unless result or a temporary restraining order is included in a
immediately issued complaint or any initiatory pleading, the case, if filed in a
A summary hearing must multiple-sala court, shall be raffled only after notice to
May be issued ex parte and in the presence of the adverse party or the person to
be done before issuance
Good for 20 days including be enjoined. In any event, such notice shall be preceded,
Good for 72 hours or contemporaneously accompanied, by service of
first 72 hours
Issued before raffling Issued after raffling summons, together with a copy of the complaint or
Issued after summary initiatory pleading and the applicant's affidavit and bond,
Issued ex parte upon the adverse party in the Philippines.
hearing

Exception:
128
Where the summons could not be served personally or by
substituted service despite diligent efforts, or the adverse
party is a resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the requirement of
prior or contemporaneous service of summons shall not
apply. [Rule 58, Sec.4] The executive judge of a multiple-
sala court or the presiding judge of a single sala court may
issue ex parte a TRO effective for only 72 hours from
issuance if the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable
injury. However, he shall immediately comply with the
provisions of Rule 38, Sec. 4 as to service of summons and
the documents to be served therewith. [Rule 38, Sec. 5]
WHEN FINAL INJUNCTION GRANTED
If after the trial of the action it appears that the applicant
is entitled to have the act or acts complained of
permanently enjoined, the court shall grant a final
injunction perpetually restraining the party or person
enjoined from the commission or continuance of the act
or acts or confirming the preliminary mandatory
injunction. (Rule 58, Sec. 9)
129
RECEIVERSHIP
NATURE
Receiver – A person appointed by the court in behalf of all
the parties to the action for the purpose of preserving and
conserving the property in litigation and prevent its
possible destruction or dissipation if it were left in the
possession of any of the parties.
Purpose
The purpose of a receivership as a provisional remedy is
to protect and preserve the rights of the parties during
the pendency of the main action, during the pendency of
an appeal or as an aid in the execution of a judgment
when the writ of execution has been returned unsatisfied.
The receivership under Rule 59 is directed to the
property which is the subject of the action and does not
refer to the receivership authorized under banking laws
and other rules or laws. Rule 59 presupposes that there is
an action and that the property subject of the action
requires its preservation. Receivership under Rule 59 is
ancillary to the main action. (Riano).
The guiding principle is the prevention of imminent
danger to the property. If an action by its nature, does not
require such protection or preservation, said remedy
cannot be applied for and granted. (Commodities Storage
v. CA, 1997)
CASES WHEN RECEIVER MAY BE APPOINTED (Rule 59,
Sec. 1)
1. When it appears from the verified application
and other proof that the applicant has an interest
in the property or fund which is the subject of the
action or proceeding, and that such property or
fund is in danger of being lost, removed, or
materially injured unless a receiver be appointed
to administer and preserve it;
2. When it appears in an action by the mortgagee
for the foreclosure of a mortgage that the
property is in danger of being wasted or
dissipated or materially injured, and that its
value is probably insufficient to discharge the
mortgage debt, or that the parties have so
stipulated in the contract of mortgage;
3. After judgment, to preserve the property during
the pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution
when the execution has been returned
unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the
judgment, or otherwise to carry the judgment
into effect;
4. Whenever in other cases it appears that the
appointment of a receiver is the most convenient
 and feasible means of preserving, administering,
or disposing of the property in litigation.
Specific cases where receiver was appointed
1. If a spouse without just cause abandons the other
or fails to comply with his/her obligations to the
family, the aggrieved spouse may petition the
court for receivership. [Family Code, Article 101]
2. The court may appoint a receiver of the property
of the judgment obligor; and it may also forbid a
transfer or other disposition of, or any
interference with, the property of the judgment
obligor not exempt from execution. [Rule 39, Sec.
41]
3. After the perfection of an appeal, the trial court
retains jurisdiction to appoint a receiver of the
property under litigation since this matter does
not touch upon the subject of the appeal. [Rule
41, Sec. 9; Acuña v. Caluag (1957)]
4. After final judgment, a receiver may be appointed
as an aid to the execution of judgment.
[Philippine Trust Company v. Santamaria (1929)]
5. Appointment of a receiver over the property in
custodia legis may be allowed when it is justified
by special circumstances, as when it is
reasonably necessary to secure and protect the
rights of the real owner. [Dolar v. Sundiam
(1971)]
REQUISITES; REQUIREMENTS BEFORE ISSUANCE OF
AN ORDER
Procedure:
1. Verified application filed by the party requesting
for the appointment of the receiver;
2. Applicant must have an interest in the property
or funds subject of the action;
3. Applicant must show that the property or funds
is in danger of being lost, wasted, or dissipated;
4. Application must be with notice and must be set
for hearing;
5. Before appointing a receiver, the court shall
require applicant to post a bond in favor of the
adverse party. When the receiver is appointed,
the receiver shall file a bond then take his oath.
6. Before entering upon his duties, the receiver
must be sworn to perform his duties faithfully.
Who Appoints Receiver:
1. Court where the action is pending
2. CA
3. SC
4. During the pendency of an appeal, the appellate
court may allow an application for the
appointment of a receiver to be filed in and
decided by the court of origin. [Rule 59, Sec. 1]
Receivership may be denied or lifted:
1. If the appointment was sought or granted
without sufficient cause (Sec. 3)
2. Adverse party files a sufficient bond to answer
for damages (Sec. 3)
130
3. Bond posted by applicant for grant of
receivership is insufficient (Sec. 5)
4. Bond of the receiver is insufficient (Sec. 5)
THE RECEIVER
Who May Be Appointed As Receiver
The general rule is that neither party to the litigation
should be appointed as a receiver without the consent of
the other because a receiver is supposed to be an
impartial and disinterested person. (Alcantara v. Abbas,
1963)
A clerk of court should not be appointed as a receiver as
he is already burdened with his official duties. (Arigo v.
Kayanan, 1983)
Powers of a Receiver
1. Bring and defend in such capacity actions in his
own name with leave of court
2. Take and keep possession of the property in
controversy
3. Receive rents
4. Collect debts due to himself as receiver or to the
fund, property, estate, person, or corporation of
which he is the receiver
5. Compound for and compromise the same
6. Make transfers
7. Pay outstanding debts
8. Divide the money and other property that shall
remain among the persons legally entitled to
receive the same’
9. Generally, to do such acts respecting the property
as the court may authorize
10. Invest funds in his hands, ONLY by order of the
court upon the written consent of all the parties.
[Rule 59, Sec. 6]
Liability for refusal or neglect to deliver property to
receiver:
1. Contempt; and
2. Be liable to the receiver for the money or the
value of the property and other things so refused
or neglected to be surrendered together with all
damages that may have been sustained by the
party or parties entitled thereto as a consequence
of such refusal or neglect. [Rule 59, Sec. 7]
Remedies Against the Receiver
1. No action against receiver can be maintained
without leave of court
2. An aggrieved party may:
a. Take the matter into the court which
appointed the receiver and ask either for an
accounting or take some other proceeding,
and ask for consequent judgment on the acts
complained of; or
b. Ask for leave of court to bring him an action
directly
TWO KINDS OF BOND
 4. Receiver entitled to reasonable compensation to
The Applicant’s Bond be taxed as costs against defeated party
1. Applicant must file a bond executed to the party
against whom the application is presented
a. Amount to be fixed by the court
b. CONDITION: To the effect that applicant will
pay such party all damages he may sustain by
reason of the appointment IN CASE the
applicant shall have procured such without
sufficient cause
2. The court may require additional bond after
appointment in the exercise of its discretion as
further security for such damages (Rule 59, Sec.
2)

The Receiver’s Bond

1. As a precondition before entering into his duties,
receiver must file a bond
2. The bond is executed to such person and in such
sum as the court may direct
3. CONDITION: To the effect that he will faithfully
discharge his duties and obey the orders of the
court (Rule 59, Sec. 4)

DAMAGES RESULTING DAMAGES ARISING AFTER

FROM APPOINTMENT APPOINTMENT
Damages which arise due
Damages resulting from
to receiver’s negligence or
appointment
mismanagement
The right rests on general
The right is statutory
principles of law
The damages may be
Liability rests on the
caused before the receiver
mismanagement or
qualifies or takes
negligence of receiver
possession of the property
The applicant’s bond is The receiver’s bond is
responsible responsible

TERMINATION OF RECEIVERSHIP

Ground: The necessity for a receiver no longer exists

Procedure:
1. The court shall determine that the necessity for a
receiver no longer exists
a. Motu proprio, or on motion of either party
2. Due notice shall be given to all interested parties
3. A hearing shall be conducted
4. The court shall then settle the accounts of the
receiver
5. The court directs delivery of the funds and other
property in his possession to the person
adjudged to be entitled to receive them
6. The court will then order the discharge of the
receiver

Effect:
1. Settle accounts of receiver
2. Delivery of funds to person entitled
3. Discharge of receiver

131
 REPLEVIN
WHEN MAY WRIT BE ISSUED
NATURE
When Applied For – A writ of replevin must be applied for:
Replevin is the provisional remedy seeking for the 1. At the commencement of the action, or
possession of the property prior to the determination of 2. At any time before defendant files his answer
the main action for replevin.
NOTE: There can be no replevin before the appellate
Replevin may also be a main action with the ultimate goal courts
of recovering personal property capable of manual
delivery wrongfully detained by a person. In this sense, it The provisional remedy of replevin is available where the
is a suit in itself PRINCIPAL PURPOSE of the action is to recover the
possession of PERSONAL property.
WRIT OF PRELIMINAY
WRIT OF REPLEVIN Who May Avail of the Remedy?
ATTACHMENT
The purpose is to have the 1. Plaintiff – where the complaint prays for
property put in the recovery of possession of personal property
The purpose is to recover custody of the court to 2. Defendant – where a counterclaim was set out in
personal property capable secure the satisfaction of the answer for recovery of personal property
of manual delivery from the judgment that may be
the defendant rendered in favor of the It is available to any other party asserting affirmative
plaintiff at some future allegations praying for the recovery of personal
time property unjustly detained.
The property either
belongs to the plaintiff or The property does not
one over which the belong to the plaintiff but REQUISITES
plaintiff has a right of to the defendant
possession 1. Applicant is owner of the property claimed or is
May be sought only when Available even if recovery entitled to possession
the principal action is for of property is only 2. Property is wrongfully detained by the adverse
the recovery of personal incidental to the relief party
property sought 3. Property is not distrained or taken for tax
Can be sought only when assessment or fine pursuant to law, or seized (if
May be resorted to even if seized, that the property is exempt)
defendant is in actual or
property is in possession 4. Principal purpose of the action is to recover
constructive possession of
of a third person possession of personal property
the property
Cannot be availed of when Can be availed of even if
property is in custodia property is in custodia
PROCEDURE (Rule 60, Sec. 2 and 3)
legis legis
Available from
Available before 1. An application is filed at the commencement of
commencement but before
defendant answers the action or at any time before answer of
entry of judgment
defendant
Bond is double the value
Bond is fixed by the court 2. Application must contain an affidavit
of the property
3. Applicant must file a bond
Extends only to personal Extends to all kinds of 4. Approval of the bond by the court
property capable of property whether real, 5. Court shall then issue an order and the writ of
manual delivery personal, or incorporeal replevin:
Attachment to recover a. It must describe the personal property
possession of personal alleged to be wrongfully detained
Available to recover
property unjustly detained b. Requiring the sheriff to take such property
personal property even if
presupposes that the same into his custody
the same is not being
is being concealed,
concealed, removed, or
removed, or disposed of to NOTE: The writ of replevin may be served anywhere in
disposed of
prevent its being found or the Philippines.
taken by the applicant

NOTE: There can be no replevin and preliminary AFFIDAVIT AND BOND; REDELIVERY BOND
attachment in the same case because the purposes are
different. Contents of the Affidavit
1. In Rule 57, it is for security 1. That the applicant is:
2. In Rule 60, it is for recovery of possession a. The owner of the property claimed –
describe with particularity
b. Or is entitled to possession
132

2. Property is wrongfully detained by adverse party
a. Allege the cause of detention
b. According to his best knowledge,
information, belief
3. That the property has not been :
a. Distrained, or
b. Taken for a tax assessment, or
c. Taken as a fine pursuant to law, or
d. Seized under a writ of execution or
preliminary attachment, or under custodia
legis; if so taken, that said property is exempt
4. The affidavit must also state the actual value of
the property subject of replevin and not just its
probable value. This value will be the basis of the
bond.
The Applicant’s Bond
1. Executed to the adverse party
2. Amount is DOUBLE the value of the property
stated in the affidavit
3. Conditions of the Bond:
a. The return to of property to adverse party, if
such return be adjudged, and
b. The payment to adverse party of such sum as
he may recover from the applicant in the
action
Return of Property (Sec. 5)
1. If the adverse party objects to the sufficiency of
the bond, he cannot immediately require the
return of the property even by counterbond.
2. If the adverse party DOES NOT object to the
sufficiency of the bond, he may require the return
of the property
a. When: At any time before delivery to
applicant
b. How: By filing a redelivery bond
The Redelivery Bond
1. This is executed to the applicant and filed where
the action is pending
2. Amount is double the value of the property as
stated in the affidavit of the applicant
3. Conditions of the Bond:
a. The delivery thereof to the applicant, if such
delivery be adjudged, and
b. The payment of such sum to him as may be
recovered against the adverse party
SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE
WRIT
Duties of the Sheriff (Rule 60, Sec. 4)
1. Serve a copy of the order, together with the
copies of the application, the affidavit, and bond
to the adverse party
2. Take the property:
133
a. If it be in the possession of the adverse party
or his agent – Take the property into custody
b. If property is concealed in a building or
enclosure:
(1) Demand delivery of the property
(2) If not delivered, cause the building or
enclosure to be broken open and then
take the property into possession
3. After taking possession:
a. Keep the property in a secure place
b. He shall be responsible for delivery to party
entitled
Unlike a preliminary attachment and preliminary
injunction, the rule on prior or contemporaneous
jurisdiction is not provided for in replevin.
However, the rule requires that upon such order, the
sheriff must serve a copy on the adverse party together
with the required documents.
A sheriff’s prerogative does not give him the liberty to
determine who among the parties is entitled to
possession.
When a writ is placed in the hands of a sheriff, it is his
duty to proceed with reasonable celerity and promptness
to execute it according to its mandate.
DISPOSITION OF PROPERTY BY SHERIFF (Rule 60, Sec.
6)
The adverse party is entitled to the return of the property
taken under writ of replevin, if:
1. He seasonably posts a redelivery bond
2. The applicant’s bond is found to be insufficient or
defective and is not replaced with a proper bond
3. The property is not delivered to the plaintiff for
any reason
The sheriff shall retain the property for 5 days; Within
such period, the adverse party:
1. May object to the sufficiency of the applicant’s
bond or surety; or
2. May file a redelivery bond, if he does not object to
the sufficiency of the bond
NOTE: These remedies are alternative.
WHEN PROPERTY IS CLAIMED BY THIRD PARTY
When third party claims the property and such person
makes affidavit of his title thereto stating his grounds, and
serves such affidavit upon the sheriff while the latter has
possession of the property and a copy upon the applicant,
the sheriff SHALL NOT BE BOUND to keep property under
replevin or deliver property to the applicant UNLESS the
applicant files a bond approved by the court in favor of
the third person (the bond should not be less than the
value of stated under Sec. 60, Sec. 2; the court shall
determine the value in case of disagreement).

No claim for damages for the taking or keeping of the

property may be enforced against the bond UNLESS the
action is filed within 120 days from filing of the bond.

The procedure in Rule 60, Sec. 7 is similar to that in third-

party claims in execution (Sec. 16, Rule 39) and in
attachment (Sec. 14, Rule 57).

Difference in Service of Affidavits:

1. Sec. 14, Rule 57 – affidavit is served upon the
sheriff while he has possession of the attached
property
2. Sec. 7, Rule 60 – affidavit is served within 5 days
in which sheriff has possession (in connection
with Sec. 6)

JUDGMENT (Rule 60, Sec. 9)

After trial of the issues, the court shall determine who has
the right of possession to and the value of the property
and shall render judgment in the alternative for the
delivery thereof to the party entitled to the same, or for
its value in case delivery cannot be made, and also for
such damages as either party may prove, with costs.

134
 A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES
Preliminary Attachment
To have the property of adverse party
attached as security for satisfaction of
judgment that may be recovered in
cases falling under Sec. 1, Rule 57
To enable the court to acquire
PURPOSE
jurisdiction over the action by the actual
or constructive seizure of the property
in those instances where personal
service of summons on creditor cannot
be effected
SUBJECT
Personal or real property
MATTER
At the commencement of action
WHEN APPLIED/
OR `At any time prior to entry of
GRANTED
judgment
HOW APPLIED FOR File affidavits and applicant’s bond
REQUIREMENT Not required
OF A HEARING May be issued ex parte
Courts where the action is pending, the
WHO MAY GRANT CA or the SC even if action is pending in
lower court
1. Sufficient cause of action
2. Case is covered by Sec. 1, Rule 57
3. No other sufficient security for the
REQUISITES FOR
claim exists
GRANTING
4. Amount due to applicant or value of
APPLICATION
property he is entitled to recover is
equal to the sum which the order of
attachment is granted
Preliminary Injunction
To require a party or a court, agency, or
a person to reframe from doing a
particular act/s
Or to require the performance of
particular act/s
Particular act/s
At any stage prior to final judgment or
final order
File verified application and applicant’s
bond
If application is included in initiatory
pleading, adverse party should be
served with summons together with a
copy of initiatory pleading and
applicant’s bond
Required
EXCEPT:
Great or irreparable injury would result
or Extreme urgency and applicant will
suffer grave injustice and irreparable
injury (Sec. 5, Rule 58
Only the court where the action is
pending
Lower court, CA or SC provided action is
pending in the same court which issues
the injunction
Also with the Sandiganbayan and CTA
1. Applicant is entitled to relief
demanded
2. Act/s complained of would work
injustice to applicant if not enjoined
3. Acts sought to be enjoined probably
violates applicant’s rights respecting
the subject of the action or
proceeding
4. Threatened injury incapable of
pecuniary estimation
135
Receivership Replevin
To place the property subject of an
auction or proceeding under the control
To recover possession of personal
of a third party for its preservation and
property
administration pendente lite or as an
aid to execution
Personal property capable of manual
Personal or real property
delivery
At any time prior to satisfaction of
judgment At the commencement of the action
It may be availed of even after judgment BUT before the filing of answer
becomes final under Sec. 41, Rule 39
File verified application and applicant’s
bond
Application may also be included in File affidavits and applicant’s bond
initiatory pleading in actions for
foreclosure of mortgage
Not Required
Required
May be issued ex parte
Court where action is pending
The CA or SC even if action is pending in
the lower court
Only the court were action is pending
Appellate court may allow application
for receivership to be decided by the
court of origin
1. Applicant has interest in property or
1. Applicant is owner of the property
fund, subject matter of action
claimed or is entitled to possession
2. Property or fund is in danger of
2. Property is wrongfully detained by
being lost, or removed, or material
the adverse party
injured
3. Property is not distrained or taken
3. Appointment is the most convenient
for tax assessment or fine pursuant
and feasible means of preserving,
to law, or seized (if seized, that the
administering, disposing of
property is exempt)
property in litigation
SPECIAL CIVIL
d. Partition
e. Expropriation

ACTIONS 2. SCAs initiated by petitions:

a. Declaratory Relief
b. Review or Adjudication of COMELEC/COA
Decisions
IN GENERAL c. Certiorari
d. Prohibition
NATURE e. Mandamus
f. Quo Warranto
Since a civil action in general is one by which a party sues g. Contempt
another for the enforcement of a right, or the prevention
or redress of a wrong, a special civil action is generally The venue of special civil actions is governed by the
brought or filed for the same purpose. [Riano] general rules on venue EXCEPT as otherwise indicated in
the particular rule for said special action.

ORDINARY CIVIL ACTIONS v. SPECIAL CIVIL ACTIONS
A special civil action is governed by the rules of ordinary
civil actions but there are certain rules that are applicable
only to special civil actions.
Actions for certiorari, prohibition and mandamus should
be commenced in the proper RTC, but the same may, in
proper cases, be commenced in the SC or the CA and a
specific rule of venue is provided for quo warranto
proceedings

ORDINARY CIVIL ACTION SPECIAL CIVIL ACTION In the absence of special reasons, the SC will decline
Also governed by ordinary original jurisdiction in certiorari, prohibition, and
Governed by ordinary mandamus since it is not a trier of facts and, that is a
rules but subject to specific
rules function which can be better done by the trial courts. The
rules prescribed
Formal demand of one’s same rule applies for quo warranto wherein the SC has
legal rights in a court of concurrent jurisdiction with the RTC.
Special features not found
justice in the manner
in ordinary civil actions Special civil actions that can be filed in or are within the
prescribed by the court or
by the law jurisdiction of inferior courts:
The concept of cause of 1. Interpleader -- Provided that amount involved is
Must be based on a cause within its jurisdiction
action in an ordinary
of action which means 2. Ejectment suits
action does not always fit
that the defendant has 3. Contempt
in a special civil action (e.g.
violated plaintiff’s rights
interpleader)
Venue is determined by This dichotomy does not
either the residences of always apply in a special
the parties when action is civil action (e.g. the venue
personal or by the in a petition for quo-
location of the property warranto is where the SC
when the action is real or CA sits)
There are special civil
actions which can be filed
with the MTC (e.g. forcible
entry and unlawful
May be filed initially in
detainer)
either the MTC or RTC
There are also those which
cannot be commenced in
the MTC (e.g. certiorari,
prohibition, mandamus)
They are denominated as Some special civil actions
“complaints” when filed are initiated by petitions

JURISDICTION AND VENUE

The Special Civil Actions (SCA) under the Rules of Court

1. SCAs initiated by complaints:
a. Interpleader
b. Foreclosure of Real Estate Mortgage
c. Forcible Entry and Unlawful Detainer
136
 INTERPLEADER
PROCEDURE
NATURE
Definition - A remedy whereby a person who has property
in his possession or has an obligation to render wholly or
partially, without claiming any right in both, comes to
court and asks that the defendants who have made
conflicting claims upon the same property or who
consider themselves entitled to demand compliance with
the obligation be required to litigate among themselves in
order to determine who is entitled to the property or
payment or the obligation [Beltran v. PHHC, (1969)]
The peculiar characteristic of an interpleader is that there
is NO CAUSE OF ACTION on the part of the plaintiff but
only a threat of cause of action.
Purposes
1. To compel conflicting claimants to interplead and
litigate their several claims among themselves.
[Rule 62, Sec. 1]
2. To protect a person against double vexation in
respect of one liability [Beltran, supra]
REQUISITES FOR INTERPLEADER
1. The plaintiff clams no interest in the subject
matter or his claim thereto is not disputed
2. The parties to be interpleaded must make
effective claims
3. There must be at least 2 or more conflicting
claimants with adverse or conflicting interests to
a property in custody or possession of the
plaintiff; and
4. The subject matter must be one and the same
NOTE: Interpleader applies regardless of nature of subject
matter.
Cannot be availed of to resolve the issue of breach of
undertakings made by defendants, which should be
resolved in an ordinary action for specific performance or
other relief [Beltran, supra].
WHEN TO FILE
Who Files the Complaint - A complaint for interpleader is
filed by the person against whom the conflicting claims
are made
When to File - REASONABLE TIME
An action for interpleader should be filed within a
reasonable time after a dispute has arisen without
waiting to be sued by either of the contending parties.
Otherwise, it may be barred by laches or undue delay.
Jurisdiction and Venue – General rules on jurisdiction and
venue apply as in ordinary civil actions.
137
1. A complaint is filed.
2. Upon filing of complaint, the court issues an
Order (Sec. 2) requiring conflictng claimants to
interplead with one another
3. Summons shall then be served upon the
conflicting claimants with a copy of the complaint
and the order to interplead (Sec. 3).
4. Each claimant has a 15-day period to file: (Sec. 4)
a. An answer
b. A motion to dismiss. If filed, period to answer
is filed
a. Grounds:
(1) Same as in Rule 16
(2) Impropriety of interpleader action
b. If motion is denied, movant may file his
answer within the remaining period but
it shall not be less than 5 days in any
event from notice of denial
5. From service of Answer, the claimants may file
their Reply serving copies to all parties. Parties
may file counterclaims, cross-claims, third-party
complaints, responsive pleadings
EFFECT OF FAILURE TO ANSWER: Default.
a. The claimant may be declared, on motion, in
default
b. Unlike ordinary default, default in
interpleader allows the court to render
judgment barring him from any claim in
respect to the subject matter
6. Pre-trial is conducted.
7. After all pleadings have been fled, the court shall
then determine the respective rights and
adjudicate their several claims (Sec. 6)
 DECLARATORY RELIEFS AND SIMILAR
REMEDIES
NATURE
In Declaratory Relief, the subject matter is a deed, will,
contract, or other written instrument, statute, executive
order, or regulation, or ordinance;
Note: The enumeration of the subject matter is
EXCLUSIVE
Issue is the validity or construction of the subject matter
Relief: declaration of the petitioner’s rights and duties
Purpose: To relieve the litigants of the common law rule
that no declaration of rights may be judicially adjudged
unless a right has been violated and for the violation of
which relief may be granted.
Characteristics
1. The concept of a cause of action is not applicable
to declaratory relief since this SCA presupposes
that there has been no breach or violation of the
2. instruments involved
3. Unlike other judgments, judgment in an action for
declaratory relief does not essentially entail any
execution process
WHO MAY FILE THE ACTION (Rule 63, Sec. 1)
1. Any person interested under a deed, will,
contract or other written instrument
a. He must file before breach
2. Any person whose rights are affected by a
statute, executive order or regulation, or
ordinance, or any other governmental regulation
a. He must file before violation
PARTIES
1. All persons who have or claim any interest which
would be affected by the declaration [Rule 63,
Sec. 2]
2. If action involves the validity of a
statute/executive order/regulation/other
governmental regulation, the Solicitor General
shall be notified. [Rule 63, Sec. 3]
3. If action involves the validity of a local
government ordinance, the prosecutor/attorney
of the LGU involved shall be notified. [Rule 63,
Sec. 4]
Non-joinder of interested persons is not a jurisdictional
defect; but persons not joined shall not be prejudiced in
their interests unless otherwise provided by the Rules.
(Baguio Citizens Action v. City Council of Baguio, 1983)
WHERE TO FILE
138
It is filed In the appropriate RTC (incapable of pecuniary
estimation)
Original jurisdiction of a petition for declaratory relief is
with the RTC.
REQUISITES OF ACTION FOR DECLARATORY RELIEF
1. Subject matter of controversy must be a deed,
will, contract, or other written instrument,
statute, executive order or regulation, or
ordinance. (Enumeration is exclusive)
2. Actual justiciable controversy or “ripening seeds”
of one between person whose interests are
adverse
3. No breach of documents in question
4. Doubtful as to the terms and validity of the
document and require judicial construction
5. Issue is ripe for judicial determination, as where
all administrative remedies have been exhausted
6. Adequate relief is not available through other
means or other forms of action or proceeding
WHEN COURT MAY REFUSE TO MAKE JUDICIAL
DECLARATION
Court has DISCRETION to REFUSE to Grant Declaratory
Relief when: (Rule 63, Sec. 5)
1. The decision will not terminate the controversy
or uncertainty giving rise to the action; or
2. The declaration or constitution is not necessary
and proper under the circumstances
How Done: Motu proprio, or on motion
CONVERSION TO ORDINARY ACTION (Rule 63, Sec. 6)
When proper: If before the final termination of the case, a
breach or violation of the instrument or status occurs.
Then, petition is converted into an ordinary action
Effect of Conversion: Parties shall be allowed to file such
pleadings as may be necessary or proper
NOTE: If there has been breach or violation BEFORE filing
of the petition, declaratory relief cannot be availed of.
PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES
Actions similar to Declaratory Relief and may be brought
under Rule 63: (may be filed with the MTC)
1. Action for reformation (See Art. 1359-1369 Civil
Code)
2. Action to quiet title or remove cloud (See Art.
476-481 Civil Code)
 3. Action to consolidate ownership (See Art. 1607
Civil Code)
These remedies are considered similar to declaratory
relief because they also result in the adjudication of the
legal rights of the litigants often without the need of
execution to carry the judgment into effect
However we must make a distinction:
1. In those cases similar to declaratory relief, the
court is BOUND to render judgment
2. In actions for declaratory relief, the court MAY
REFUSE to exercise the power to declare rights
and to construe instruments
139
REVIEW OF JUDGMENTS AND FINAL ORDERS
OR RESOLUTION OF THE COMELEC AND COA
SCOPE (Rule 64, Sec. 1)
Applicable only to judgments and final orders of the
COMELEC and COA [Rule 64, Sec. 1]
Judgments/orders of the Civil Service Commission are
now reviewable by the Court of Appeals under Rule 43,
eliminating recourse to the Supreme Court (SC). [RA 7902;
SC Revised Administrative Circular No. 1-95]
An aggrieved party may bring the questioned judgment,
etc. directly to the SC on certiorari under Rule 65. [Rule
64, Sec. 2]
Basis: This new rule is based on the provisions of Art. IX-
A, 1987 Constitution regarding the three constitutional
commissions provided for therein.
APPLICATION OF RULE 65 UNDER RULE 64
The aggrieved party may bring a judgment or final order
or resolution of the COMELEC and COA to the SC on
certiorari under Rule 65 and not on appeal by certiorari
under Rule 45
NOTE: The petition should be filed EXCLUSIVELY with the SC
Unlike in Rule 65, petition should be filed within 30 days
from notice of judgment or final order or resolution
sought to be reviewed.
Filing of MFR or MNT, if allowed under the procedural
rules of the Commission, shall interrupt the 30-day
period.
If denied, aggrieved party may file petition within the
remaining period but it shall not be less than 5 days in
any event from notice of denial.
NOTE: The Fresh Period Rule is NOT applicable
PROCEDURE
1. A verified petition is filed (Sec. 5) with payment
of docket and lawful fees (Sec. 4)
2. Service of petition to the Commission and parties
concerned (Sec. 5)
3. SC shall act on the petition:
a. It may dismiss the petition:
(1) Failure to comply with the form and
content requirements in Sec. 5
(2) If SC finds the petition insufficient in
form and substance (Sec. 6)
(3) If it was filed manifestly for delay (Sec. 6)
(4) Questions raised are too unsubstantial to
warrant proceedings (Sec. 6)
b. If sufficient in form and substance, the SC will
require the respondents to file their
 Comments (Sec. 6) within 10 days from CERTIORARI, PROHIBITION, MANDAMUS
notice
4. SC may also require oral argument or submission DEFINITIONS AND DISTINCTIONS
of memoranda (Sec. 9)
5. The case is then submitted for decision (Sec. 9) Writ of Certiorari is a writ emanating from a superior
court directed against an inferior court, tribunal, or
officer exercising judicial or quasi-judicial functions. The
DISTINCTION IN THE APPLICATION OF RULE 65 TO purpose of which is to correct errors of jurisdiction.
JUDGMENTS OF THE COMELEC AND COA AND THE
APPLICATION OF RULE 65 TO OTHER TRIBUNALS, Writ of Prohibition is a writ issued by a superior court and
PERSONS, AND OFFICERS directed against an inferior court, board, officer or other
person whether exercising judicial, quasi-judicial, or
ministerial functions for the purpose of preventing the
Rule 64 latter from usurping jurisdiction with which it is not
Rule 65
legally vested.
Directed only to the Directed to any tribunal,
judgments, final orders or board, or officer exercising Writ of Mandamus is a writ issued in the name of the
resolutions of COMELEC judicial or quasi-judicial State, to an inferior tribunal, corporation, board, or
and COA functions person, commanding the performance of an act which the
Filed within 30 days from Filed within 60 days from law enjoins as a duty resulting from an office, trust, or
notice of the judgment notice of the judgment station.
The filing of a MR or a
Motion for New Trial if CERTIORARI PROHIBITION MANDAMUS
allowed, interrupts the Directed against
period for the filing of the Directed against an entity or Directed against
The period within which to
petition for certiorari. If an entity or person an entity or
file the petition if the MR or
the motion is denied, the person exercising person
new trial is denied, is 60
aggrieved party may file exercising judicial, quasi- exercising
days from notice of the
the petition within the judicial or quasi- judicial, or ministerial
denial of the motion.
remaining period, but judicial functions ministerial functions
which shall not be less than functions
5 days reckoned from the Entity or person
notice of denial. is alleged to
Entity or person is alleged to have
have:
acted:
(1) Neglected a
(1) Without jurisdiction
ministerial duty;
(2) In excess of jurisdiction; or
or
(3) With grave abuse of discretion
(2) Excluded
amounting to lack or excess of
another from a
jurisdiction
right or office

PURPOSE: PURPOSE:
PURPOSE To have For respondent
To annul or respondent to: (1) Do the
nullify a desist from act required,
proceeding further and (2) Pay
proceeding damages
Covers
Covers
discretionary Covers
discretionary
and ministerial ministerial acts
acts
acts
Negative and
Corrective
Preventive This remedy is
remedy
remedy affirmative or
To correct
To restrain or positive
usurpation of
prevent the said or negative
jurisdiction
usurpation

Distinguished from Injunction

INJUNCTION PROHIBITION
Ordinary civil action Special civil action
Directed only to the party Directed to the court itself,
140
 litigants, without in any commanding it to cease
manner interfering with from the exercise of a
the court jurisdiction to which it has
no legal claim
INJUNCTION MANDAMUS
Ordinary civil action Special civil action
Directed against a tribunal,
Directed against a litigant corporation, board, or
officer
Purpose is to either
Purpose is for the tribunal,
refrain the defendant from
corporation, board, or
performing an act or to
officer, to perform a
perform not necessarily a
ministerial and legal duty
legal and ministerial duty
Certiorari as a Mode of Appeal and as a Special Civil Action
CERTIORARI AS A MODE CERTIORARI AS A SPECIAL
OF APPEAL (Rule 45) CIVIL ACTION (Rule 65)
A continuation of the
An original action and not
appellate process over the
a mode of appeal
original case
May be directed against an
interlocutory order of the
Seeks to review final court or where no appeal
judgment or final orders or plain or speedy remedy
is available in the ordinary
course of law
Raises questions of
jurisdiction – that is,
whether a tribunal, board
or officer exercising
judicial or quasi-judicial
Raises only questions of
functions has acted
law
without jurisdiction or in
excess of jurisdiction or
with grave abuse of
discretion amounting to
lack of jurisdiction
Filed not later than 60
days from notice of
Filed within 15 days from
judgment, order, or
notice of judgment or final
resolution sought to be
order appealed from, or of
assailed and in case a
the denial of petitioner’s
motion for reconsideration
motion for
or new trial is timely filed,
reconsideration or new
the 60-day period is
trial
counted from notice of
said denial
Extension of 30 days may
Extension no longer
be granted for justifiable
allowed
reasons
Does not require a prior Motion for reconsideration
motion for is a condition precedent,
reconsideration subject to exceptions
Does not stay the
Stays the judgment judgment or order subject
appealed from of the petition, unless
enjoined or restrained
Parties are the original The tribunal, board,
parties with the appealing officer, exercising judicial
141
party as the petitioner and or quasi-judicial functions
the adverse party as the is impleaded as
respondent without respondents
impleading the lower
court or its judge
May be filed with the SC,
Filed only with the SC
CA, Sandiganbayan, RTC
SC may deny the decision
motu proprio on specific
grounds
NOTE: An original action for Certiorari, Prohibition, or
Mandamus, is an Independent Action, as such:
1. Does not interrupt the course of the principal
action
2. Does not affect the running of the reglementary
periods involved in the proceedings
3. Does not stay the execution of judgment unless a
TRO or writ of preliminary injunction has been
issued
ACQUISITION OF JURISDICTION
In original actions for Certiorari, Prohibition, Mandamus,
when does the court acquire jurisdiction over the person
of the respondent? IT DEPENDS:
1. IF ACTION IS FILED WITH THE RTC - We follow
rules on ordinary civil actions. Jurisdiction is
acquired by:
a. Service of summons to respondent or
b. By his voluntary appearance in court
2. IF ACTION IS FILED WITH THE CA OR SC - Court
acquires jurisdiction over respondents by:
a. Service on them of its orders indicating its
initial action on the petition or
b. By their voluntary submission to such
jurisdiction
REQUISITES
Requisites of Certiorari:
1. There must be a controversy
2. Respondent is exercising judicial or quasi-judicial
function
3. Respondent acted without or in excess of its
jurisdiction or acted with grave abuse of
discretion amounting to lack of jurisdiction; and
4. There must be no appeal or other plain, speedy,
and adequate remedy
Requisites of Prohibition:
1. There must be a controversy
2. Respondent is exercising judicial, quasi-judicial,
or ministerial functions
3. Respondent acted without or in excess of its
jurisdiction or acted with grave abuse of
discretion amounting to lack of jurisdiction; and
4. There must be no appeal or other plain, speedy,
and adequate remedy
Requisites of Mandamus: prevented during the pendency of the proceedings for the
1. There must be a clear legal right or duty writ, the petitioner should obtain a restraining order
 If there is discretion as to the taking or non- and/or writ of preliminary injuction. [Regalado]
taking of the action sought, there is no clear
legal duty, and mandamus will not lie The office of prohibition is not to correct errors of
judgment but to prevent or restrain usurpation by
2. The act to be performed must be practical inferior tribunals and to compel them to observe the
 Within the powers of the respondent to limitation of their jurisdictions. (Herrera)
perform such that if the writ of mandamus
was issued, he can comply with it, or else the General Rule: Prohibition does NOT ordinarily lie to
essence will be defeated restrain an act which is already fait accompli.
3. Respondent must be exercising a ministerial duty
 A duty which is absolute and imperative and Exception: Writ of prohibition will lie to prevent the
involves merely its execution unlawful creation of a new province by those in the
4. The duty or act to be performed must be existing corridors of power who could avoid judicial intervention
 A correlative right will be denied if not and review by merely speedily and stealthily completing
performed by the respondents the commission of such illegality (Tan, et al. v. COMELEC)
5. There is no other plain, speedy, and adequate
remedy in the ordinary course of law
WHEN PETITION FOR MANDAMUS PROPER
DISCRETIONARY ACT MINISTERIAL ACT
One which an officer or The purpose of mandamus is to compel the performance,
One where public tribunal performs in a when refused, of a ministerial duty, this being its main
functionaries, by virtue of given state of facts, in a objective.
a power or right conferred prescribed manner, in
upon them by law, can act obedience to the mandate A writ of mandamus will not issue to control the exercise
officially under certain of a legal authority, of official discretion or judgment, or to alter or review the
circumstances, without regard to or the action taken in the proper exercise of the discretion of
uncontrolled by the exercise of his own judgment, for the writ cannot be used as a writ of error or
judgment or conscience of judgment upon the other mode of direct review.
others propriety or impropriety
of the act done However, in extreme situations generally in criminal
cases, mandamus lies to compel the performance of the
fiscal of discretionary functions where his actuations are
WHEN PETITION FOR CERTIORARI IS PROPER tantamount to a wilful refusal to perform a required duty.
[Regalado]
Only to correct errors of jurisdiction, not errors of
judgment. Grounds for Mandamus:
1. When any tribunal, corporation, board, officer or
Questions of fact cannot be raised in an original action for person, UNLAWFULLY NEGLECTS the
certiorari. Only established or admitted facts may be performance of an act which the law specifically
considered. (Suarez, NLRC, 1998) enjoins as a duty resulting from an office, trust, or
station
Where appeal is available, certiorari will not lie. 2. When any tribunal, corporation, board, officer, or
Exceptions: person, UNLAWFULLY EXCLUDES another from
1. Where the appeal does not constitute a speedy the due and enjoyment of a right or office to
and adequate remedy which the other is entitled
2. Where orders were also issued either in excess or
without jurisdiction
3. For certain special considerations, as public MANNER OF FILING THE PETITION
welfare or public policy
4. Where, in criminal actions, the court rejects the 1. A verified petition is filed in the proper court
rebuttal evidence for the prosecution as, in case accompanied by:
of acquittal, there could be no remedy a. Certified true copy of the judgment, order,
5. Where the order is a patent nullity resolution subject thereof
6. Where the decision in the certiorari case will b. Copies of all pleadings and relevant and
avoid future litigations pertinent documents
c. Sworn certification of non-forum shopping
2. Contents of the petition
WHEN PETITION FOR INJUNCTION IS PROPER a. Allegation of facts with certainty
b. Prayer
Prohibition is a preventive remedy. However, to prevent
the respondent from performing the act sought to be Prayers:
1. In certiorari
142
 a. That the judgment be rendered annulling or
modifying the proceedings of such tribunal,
board or officer; and
b. Granting such incidental reliefs as law and
justice may require
2. In prohibition
a. That the judgment be rendered commanding
the respondent to desist from further
proceedings in the action or matter specified;
or
b. Otherwise granting such incidental reliefs as
law and justice may require
3. In mandamus
a. That the judgment be rendered commanding
the respondent, immediately or at some
other time to be specified by the court, to do
the act required to be done to protect the
rights of the petitioner ; and
b. To pay the damages sustained by the
petitioner by reason of the wrongful acts of
the respondent
EXCEPTIONS TO FILING MOTION FOR
RECONSIDERATION BEFORE FILING PETITION
General Rule: A MR is an essential precondition for the
filing of a petition for certiorari, prohibition, or
mandamus. It is a plain, speedy, and adequate remedy.
This is to enable the lower court, in the first instance, to
pass upon and correct its mistakes without the
intervention of the higher court
If a MR is filed, the period shall not only be interrupted
but another 60 days shall be given to the petitioner within
which to file the appropriate petition for certiorari or
prohibition with the superior court (SC Admin Circular
00-2-03)
Exceptions: MR may be dispensed with in some cases:
1. Where the order is a patent nullity
2. Where questions raised in the certiorari
proceeding have been duly raised and passed
upon by the lower court , or are the same as
those raised and passed upon in the lower court
3. Where there is urgent necessity for the resolution
of the question and any further delay would
prejudice the interests of the Government
4. Where under the circumstances, a MFR would be
useless, as where the court had already indicated
that it would deny any motion for
reconsideration of its questioned order
5. Where petitioner was deprived of due process
and there is extreme urgency for relief
6. Where, in a criminal case, relief from an order of
arrest is urgent and granting such relief by trial
court is improbable
7. Where the proceedings in the lower court are a
nullity for lack of due process
8. Where the proceeding was ex parte or in which
the petitioner had no opportunity to object
143
9. Where the issue raised is one purely of law or
where public interest is involved
10. Where the subject matter of the action is
perishable
PROCEDURE
1. A petition for certiorari/ mandamus/ prohibition
is filed
When filed:
a. Not later than 60 days from notice of
judgment/order/resolution
b. If a motion for reconsideration/new trial is
filed, the 60-day period shall be counted
from notice of denial of motion.
c. Extension may be granted for compelling
reasons, not exceeding 15 days. [Rule 65, Sec.
4]
Where filed: (Follow hierarchy of courts)
a. Supreme Court
b. Court of Appeals; Whether or not the same is
in aid of its appellate jurisdiction BUT if it
involves the acts of a quasi-judicial agency,
the petition shall be filed only in the CA,
unless otherwise provided by law or the
Rules.
c. Regional Trial Court, if it relates to acts /
omissions of a lower court / corporation /
board / officer / person. RTC must exercise
jurisdiction over the territorial area
d. Sandiganbayan, if it is in aid of its appellate
jurisdiction. [Rule 65, Sec. 4]
e. The COMELEC in election cases involving an
act or omission of the MTC/RTC
2. Order to Comment - If the petition is sufficient in
form and substance to justify such process, the
court shall issue an order requiring the
respondent(s) to comment on the petition within
10 days from receipt of a copy thereof.
Such order shall be served on the respondents in
such manner as the court may direct, together
with a copy of the petition and any annexes
thereto. [Rule 65, Sec. 6]
3. Hearing or Memoranda - After the comment or
other pleadings required by the court are filed, or
the time for the filing thereof has expired, the
court may hear the case or require the parties to
submit memoranda. [Rule 65, Sec. 8]
4. Judgment - If after such hearing or submission of
memoranda or the expiration of the period for
the filing thereof, the court finds that the
allegations of the petition are true, it shall render
judgment for the relief prayed for or to which the
petitioner is entitled.
The court, however, may dismiss the petition if it
finds the same to be:
 a. Patently without merit,
b. Prosecuted manifestly for delay, or
c. The questions raised therein are too
unsubstantial to require consideration. [Rule
65, Sec. 8]
5. Service and Enforcement of Order or Judgment -
A certified copy of the judgment rendered shall
be served upon the court, quasi-judicial agency,
tribunal, corporation, board, officer or person
concerned in such manner as the court may
direct, and disobedience thereto shall be
punished as contempt.
for delay, or that the questions raised therein are too
unsubstantial to require consideration. (Rule 65, Sec. 8)
In these cases, the court may award TREBLE COSTS
solidarily against petitioner and counsel, in addition to
administrative sanctions
Court may impose, motu proprio, based on res ipsa
loquitur, other disciplinary sanctions for patently dilatory
and unmeritorious petitions (AM No. 07-7-12-SC)

RELIEFS PETITIONER IS ENTITLED TO

Petitioner may be entitled to:

1. Injunctive relief – Court may may issue orders
expediting the proceedings, and it may also grant
a temporary restraining order or a writ of
preliminary injunction for the preservation of the
rights of the parties [Rule 65, Sec. 7]
2. Incidental reliefs as law and justice may require
[Rule 65, Secs. 1 and 2]
3. Other reliefs prayed for or to which the petitioner
is entitled [Rule 65, Sec. 8]

INJUNCTIVE RELIEF

Rule 65, Sec. 7 provides for the issuance of a temporary

restraining order, and not only for a writ of preliminary
injunction, but such order shall be subject to the rules on
the grounds and duration thereof. [Regalado]

General Rule: The petition shall not interrupt the course of

the principal case.

The public respondent shall proceed with the principal

case WITHIN 10 DAYS from filing of the petition for
certiorari with the higher court, absent a TRO or
preliminary injunction, or upon its expiration. Failure
may be a ground for an administrative charge (AM No. 07-
7-12-SC)

Exception: Unless a TRO or preliminary injunction has

been issued against the public respondent from further
proceedings in the case

FACTS/OMISSIONS OF MTC/RTC IN ELECTION CASES

In election cases involving an act or an omission of a

municipal or regional trial court, the petition shall be filed
EXCLUSIVELY with the Commission on Elections, in aid of
its appellate jurisdiction (Rule 65, Sec. 4, as amended in
AM No. 07-7-12-SC)

EFFECTS OF FILING AN UNMERITORIOUS PETITION

The court, however, may dismiss the petition if it finds the

same to be patently without merit, prosecuted manifestly

144
 QUO WARRANTO In fine, Rule 66 applies to quo warranto IN GENERAL
while election law governs quo warranto against
NATURE SPECIFIED elective officials.

Quo Warranto literally means “by what authority”.
It is a prerogative writ by which the government can call
upon any person to show by what warrant he holds a
public office or exercises a public franchise.
When the inquiry is focused on the legal existence of a
body politic, the action is reserved to the State in a
proceeding for quo warranto or any other direct
proceeding.
Subject Matter: The subject matter of a quo warranto may
be a public office, franchise, or position.
NOTE: NOTE: Rule 66 deleted an office in a
corporation created by authority of law. This falls
under the jurisdiction of the SEC under PD 902-A.
AGAINST WHOM MAY THE ACTION BE BROUGHT (Rule
66, Sec. 1)
1. A PERSON who USURPS, intrudes into, or
unlawfully holds or exercises a public office,
position, or franchise
2. A PUBLIC OFFICER who does or suffers an act,
which, by provision of law, constitutes a ground
for FORFEITURE OF OFFICE
3. An ASSOCIATION which acts as a corporation
within the Philippines without being legally
incorporated or without lawful authority to act
Actions for quo warranto against corporations with
regard to franchises and rights granted to them, as well as
their dissolution now fall under the jurisdiction of the
RTC (Securities Regulation Code, Sec. 5.2)

Jurisdiction to Issue Writ: Original jurisdiction to issue the

writ of quo warranto is vested in the SC, CA, and RTC. WHO MAY COMMENCE THE ACTION (Rule 66, Sec. 2 –
5)

DISTINGUISHED FROM QUO WARRANTO IN THE General Rule: The Government, through the Solicitor
OMNIBUS ELECTION CODE General or public prosecutor
1. MANDATORY (Sec. 2); When to commence:
ROC Rule 66 OEC Sec. 253 a. When directed by the President, or
Filed by whom b. When upon complaint or otherwise he has
Solicitor General or Public good reason to believe that any case in Sec. 1
Prosecutor in behalf of the Any voter can be established by proof
Republic; Individual
Where filed 2. DISCRETIONARY (Sec. 3); When to commence:
COMELEC, if against a. This is upon permission of court
election of a Member of b. Bringing such action (ex relatione) at the
Congress, Regional, request and upon the relation of another
By SolGen: RTC Manila, CA or person, PROVIDED:
Provincial or City
SC; Otherwise, RTC with (1) Officer bringing it may require an
Officer;
jurisdiction over territorial indemnity bond
area where respondent (2) Leave of court will have to be obtained
appropriate RTC or
resides, CA or SC
MTC, if against a
municipal or barangay Exception: An individual may commence the action (Sec.
officer 5); PROVIDED:
1. He institutes the action in his own name
Period for filing
a. He does not have to secure the intervention
Within 1 year from ouster, or
Within 10 days after of the Solicitor General or public prosecutor
from the time the right to the
proclamation of results b. No leave of court necessary
position arose
2. HOWEVER, he must claim to be entitled to the
Against whom, grounds
office or position usurped or unlawfully held or
A person, who usurps, exercised by another.
intrudes into or unlawfully a. He must aver and be able to show that he is
holds or exercises a public entitled to the office in dispute. There must
office, position or franchise; be an allegation that respondent is either a
Ineligibility or disloyalty de facto or de jure officer
A public officer, who does or to the Republic
suffers an act which, by
provision of law, constitutes PERIOD FOR PLEADINGS AND PROCEEDINGS MAY BE
a ground for forfeiture of REDUCED (Rule 66, Sec. 8)
office
Period to File: The action must be commenced within 1
year from the date after the cause of such ouster or the

145
right of the petitioner to hold such office or position
arose. (Sec. 11)
Laches does not attach and failure to file quo-warranto
proceedings does not operate adversely against a
dismissed government employee where it was the act of
responsible government official which contributed in the
delay of filing of complaint for reinstatement (Cristobal v.
Melchor).
Reduction of Period: The court may reduce the period for
filing and for all other proceedings in the action to secure
most expeditious determination of the matters involved
therein, consistent with the rights of the parties.
JUDGMENT IN QUO WARRANTO ACTION (Rule 66, Sec.
9)
When respondent is found guilty of usurping, intruding,
or unlawfully holding, judgment rendered:
1. That such respondent is ousted and altogether
excluded therefrom
2. That petitioner or relator, as the case may be,
recover his costs
3. May determine the respective rights in and to the
public office, position, or franchise of all parties
RIGHTS OF A PERSON ADJUDGED ENTITLED TO
PUBLIC OFFICE (Rule 66, Sec. 10)
Rights of persons adjudged entitled to office:
1. Execution of the office
 After taking oath of office and executing any
official bond required by the law
2. Demand from respondent all the books and
papers appertaining to the office to which
judgment relates
 Respondent’s neglect or refusal to comply
with the demand is punishable by contempt
3. Bring an action for damages against respondent
 For damages sustained by him by reason of
the usurpation
 Must be commenced within 1 year after
entry of judgment establishing petitioner’s
right to the office in question (Sec. 11)
146
EXPROPRIATION
NATURE
Eminent Domain is the right and authority of the State, as
sovereign, to take private property for public use upon
observance of due process and payment of just
compensation.
It is a government’s right to appropriate, in the nature of a
compulsory sale to the State, private property for public
use or purpose.
Requisites for the Valid Exercise of the Right
1. There must be due process of law
2. Payment of just compensation
3. Taking must be for public use
Subject Matter of Expropriation: All properties can be
expropriated, EXCEPT:
1. Money (futile; because of just compensation)
2. Choses in action (conjectural in nature; validity
and its value)
When is Expropriation Proper:
1. When the owner refuses to sell
2. When he agrees to sell but an agreement as to the
price cannot be reached.
MATTERS TO ALLEGE IN COMPLAINT FOR
EXPROPRIATION
Contents of the Complaint (Rule 67, Sec. 1)
1. State with certainty the right and purpose of
expropriation
a. Where the right of the plaintiff to expropriate
is conferred by law, complaint does not have
to state with certainty the right of
expropriation (MRR Co. v. Mitchel)
2. Describe the real or personal property sought to
be expropriated
3. Joining of defendants
a. All persons owning or claiming to own, or
occupying, any part thereof or interest
therein. showing separate interest of each
defendant, as far as practicable
b. Make the following averments, if needed:
(1) If title appears to be in the Republic,
although occupied by private individuals
(2) If title is otherwise obscure or doubtful
so that plaintiff cannot with accuracy or
certainty specify who the real owners
are
Where to File: RTC where property is located. MTC has no
jurisdiction since an action for expropriation is incapable
of pecuniary estimation.
TWO STAGES IN EVERY ACTION FOR EXPROPRIATION
First Stage: Determination of the authority of the plaintiff
to exercise the power of eminent domain and the
propriety of its exercise in the context of the facts
involved. This ends with either: On RA 8974
1. An order of dismissal, or
2. An order of expropriation On Nov. 7, 2000, Congress enacted RA 8974, a special law
to facilitate the acquisition of right of way, site, or location
Second Stage: Determination of the just compensation for for national government infrastructure projects:
the property sought to be taken.
RULE 67,
RA 8974
NOTE: Multiple appeals is allowed in expropriation. SEC. 2
Aggrieved party may appeal in each stage separately. Only when national
government
expropriates
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO Expropriation
APPLICATION property for national
POSSESSION OF THE REAL PROPERTY, IN RELATION in general
government
TO R.A. NO. 8974 infrastructure
projects
Plaintiff shall have the right to take or enter upon Government Government is
possession of the real property upon: FOR WRIT OF is required to required to make
1. Filing of complaint or at any time thereafter, and POSSESSION make immediate payment
after due notice to defendant TO ISSUE preliminary to owner upon filing
4. Making preliminary deposit (Rule 67, Sec. 2) deposit of complaint
Equal to the market
Preliminary deposit: value of the property
as stated in the tax
Provide damages if court finds that the Equal to declaration or
plaintiff has no right to expropriate assessed current relevant
AMOUNT OF
Purposes value of real zonal value of BIR,
Advance payment for just compensation, if PAYMENT OR
property for whichever is higher,
property is finally expropriated DEPOSIT
purposes of and value of
taxation improvements
If Real Property - Equivalent to the assessed and/or structures
value of the property for purposes of using replacement
taxation cost method
Value
If Personal Property – Value shall be
provisionally ascertained and fixed by the Remember the Applicable Rules:
court 1. RA 8974 specifically governs expropriation for
With the authorized government depositary national government infrastructure projects
Where to
Amount is to be held by such bank subject to 2. Sec 19, LGC governs the exercise of the power of
deposit
the orders of the court eminent domain by LGUs through an enabling
Deposit shall be in money ordinance

UNLESS, in lieu of money, court authorizes

Form of
deposit of a certificate of deposit of a
Deposit
government bank of the Republic, payable on
demand to the authorized government
depositary
After the deposit, court shall order sheriff or proper
officer to place plaintiff in possession of the property.
Such officer shall promptly submit a report to the court
with service of copies to parties.
NOTE: Preliminary deposit is only necessary if the
plaintiff desires entry on the land upon its institution of
the action. Otherwise, he could always wait until the
order of expropriation is issued before it enters upon the
land.
Once the preliminary deposit has been made, the
expropriator is entitled to a writ of possession as a matter
of right, and the issuance of said writ becomes ministerial
on the part of the trial court (Biglang-Awa v. Bacalla)
NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL
JUST COMPENSATION
For the acquisition of right-of-way, site or location for any
national government infrastructure project through
expropriation, upon the filing of the filing of the
complaint, and after due notice to the defendant, the
implementing agency shall immediately pay the owner of
the property the amount equivalent to the sum of (1) 100
percent of the value of the property based on the current
relevant zonal valuation of the BIR; and (2) the value of
the improvements and/or structures as determined
under Sec. 7 of RA 8974 (Sec. 4, RA 8974)
DEFENSES AND OBJECTIONS
No Objection Or Defense To Has Objection Or Defense
The Taking To The Taking
What to file and serve

147
 Notice of appearance and
Answer to the complaint
manifestation
Period to file
Time stated in the summons
Contents
Specifically
Manifestation to the effect designating/identifying
that he has no objection or the property in which he
defense; claims to have an interest
in and the nature and
Specifically extent of the interest;
designating/identifying the
property in which he ALL his objections and
claims to be interested defenses to the complaint
or any allegation therein
Prohibited
Counterclaim, cross-claim,
third party complaint in
any pleading
1. Plaintiff not permitted to dismiss or discontinue
the proceeding
a. EXCEPTION: On such terms as the court
deems just and equitable, plaintiff may be
allowed to dismiss or discontinue
2. Forecloses any further objections to the right to
expropriate, including the public purpose of the
same
ASCERTAINMENT OF JUST COMPENSATION (Rule 67,
Sec. 5)
Upon rendition of the Order of Expropriation, the court
issues an Order of Appointment.
Order of Appointment:
1. Court appoints not more than 3 commissioners to
ascertain and report to the court the just
compensation for the property

NOTE: A defendant waives all defenses and objections not 2. Contents:

so alleged, but the court, in the interest of justice, may a. It shall designate the time and place of the
permit amendments to the answer not to be made later first session of hearing to be held by
than ten (10) days from filing thereof. commissioner
b. Specify the time within which their report
NOTE: In any case, in the determination of just shall be submitted to court
compensation, defendant may present evidence as to the
amount of compensation to be paid. 3. Procedures:
a. Copies of the Order shall be served on the
NOTE: The defendant CANNOT be declared in default for parties
failure to file Answer. Failure to file an answer would b. Objections to appointment:
result to the court’s judgment on the right to expropriate (1) Filed with the court within 10 days from
without prejudice to the right to present evidence on the service
just compensation and to share in the distribution of the (2) Objections shall be served to all
award. commissioners
(3) Resolved within 30 days after all
commissioners shall have received
ORDER OF EXPROPRIATION (Rule 67, Sec. 4) copies

Order of Expropriation - It is the order declaring that the Just Compensation

plaintiff has lawful right to take the property.
When Issued: It is issued when:
1. Objections or defenses against the right of
plaintiff to expropriate are overruled; or
2. No party appears to defend the case
Contents of the Order:
1. That the plaintiff has a lawful right to take the
property sought to be expropriated
2. For public use or purpose described in the
complaint
3. Upon payment of just compensation
a. To be determined as of the date of taking, or
b. The filing of the complaint, whichever came
first
Remedy of Defendant: Order of condemnation is final, not
interlocutory. Hence, it is appealable.
Effects of the Order:
148
Just Compensation has been defined as the full and fair
equivalent of the property taken from its owner by the
expropriator. Just compensation means not only the
correct determination of the amount to be paid but also
the payment of the land within a reasonable time from its
taking.
Market Value
Is “that sum of money which a person desirous but not
compelled to buy, and an owner willing but not compelled
to sell, would agree on as a price to be given and received
therefore.” [BPI v. CA (2004)]
Time when market value should be fixed:
1. When plaintiff takes possession before institution
of proceedings, value should be fixed as of the
TIME OF TAKING
2. When the taking coincides with or subsequent to
the commencement of proceedings, DATE OF
FILING of the complaint should be the basis

APPOINTMENT OF COMMISSIONERS;
COMMISSIONER’S REPORT; COURT ACTION UPON
REPORT
Qualifications of the Commissioners:
1. Competent and
2. Disinterested
Proceedings by Commissioners (Rule 67, Sec. 6)
1. Commissioners shall first take and subscribe an
oath that they will faithfully perform their duties.
Oath shall be filed in court together with other
proceedings.
2. Evidence may be introduced by either party
before the commissioners who are authorized to
administer oaths on hearings before them
Duties of Commissioners:
1. View and examine the property sought to be
expropriated and its surroundings, and may
measure the same
a. Due notice to parties to attend must first be
given UNLESS the parties consent to the
contrary
b. After this, each party may argue the case
2. They shall assess the consequential damages to
the property not taken and deduct from such the
consequential benefits to be derived by owner
a. In no case shall the consequential benefits
assessed exceed the consequential damages
b. In no case shall the owner be deprived of the
actual value of his property taken
Report by Commissioners (Rule 67, Sec. 7)
Commissioners shall make a full and accurate report to
the court of all their proceedings.
Such proceeding shall not be effectual until court has
accepted their report and rendered judgment in
accordance with their recommendations.
Report shall be filed within 60 days from date
commissioners were notified of their appointment. Time
may be extended by court discretion,
Upon filing, clerk shall serve copies of the Commissioners’
Report to all interested parties. Clerk includes a notice
that parties are allowed to file objections to the report
within 10 days from notice
Action Upon Commissioners’ Report (Rule 67, Sec. 8)
1. When court renders judgment: Upon
a. Filing of objections to the report or of the
agreement thereon of all interested parties;
or
b. Expiration of 10-day period to object from
the report
2. Court may:
149
a. After hearing, accept the report and render
judgment in accordance therewith
b. Recommit to commissioners for further
report of facts, for cause shown
c. Set aside the report and appoint new
commissioners;
d. Accept the report in part and reject in part
e. Make such order or render such judgment as
shall secure the plaintiff and the defendant
RIGHTS OF PLAINTIFF UPON JUDGMENT AND
PAYMENT (Rule 67, Sec. 10)
When will the right of plaintiff TO ENTER the property
sought to be appropriated or RIGHT TO RETAIN it should
he have taken immediate possession thereof accrue?
1. RIGHT TO RETAIN: Upon filing of complaint,
serving notice to defendant, and after depositing
the assessed value of property for taxation
purposes with authorized government
depositary (Sec. 2)
2. RIGHT TO ENTER:
a. Upon payment by plaintiff to defendant of
compensation fixed by judgment, with legal
interest from taking (Sec. 10)
b. After tender to defendant of amount so fixed
and payment of the costs (Sec. 10)
EFFECT OF RECORDING OF JUDGMENT
Contents of the Judgment
1. Statement of the particular property or interest
therein expropriated, with adequate description
2. Nature of the public use or purpose for which it is
expropriated
In case of real estate, a certified true copy of such
judgment shall be recorded in the registry of deeds of the
place in which property is situated. Effect is to vest title.
Title in Expropriation is vested:
1. If PERSONAL property, upon payment of just
compensation (Sec. 10)
2. If REAL property, upon payment of just
compensation AND registration of property (Sec.
13)
FORECLOSURE OF REAL ESTATE MORTGAGE
NATURE
Foreclosure of Mortgage is a proceedings in a court of
justice conducted according to legal forms by which the
mortgagee or his successors or one who has by law
succeeded to the rights and liabilities of the mortgagee
undertakes to dispose of, to ban, to cut-off the legal and
equitable claims of lien holders or of the mortgagors or
those who have succeeded to the rights and liabilities of
the mortgagor.
The cause of action in a foreclosure suit is generally the
non-payment of the mortgage loan, but it may be on other
grounds which under the contract warrant the
foreclosure, such as the violation of the other conditions
therein.
Foreclosure may be made:
1. Judicially – governed by Rule 68
2. Extrajudicially – proper only when so provided in
contracts in accordance with Act. No. 3135;
governed by A.M. No. 99-10-05-0.
COMPLAINT IN AN ACTION FOR FORECLOSURE (Rule
68, Sec. 1)
Venue: A foreclosure action must be brought in the RTC of
the province where the land or any part thereof is
situated
Contents of the Complaint:
1. The following dates:
a. Date and due execution of the real mortgage
b. Date of the note or other documentary
evidence of the obligation secured by the
mortgage
2. Its assignments, if any
3. The following names and residences:
a. Of the mortgagor and mortgagee
b. Of all persons having or claiming an interest
in the property subordinate in the right to
that of the holder of the mortgage
4. Description of the mortgaged property
5. Amount claimed to be unpaid
Defendants in a judicial foreclosure
1. Persons obliged to pay the mortgage debt
2. Persons who own, occupy, or control the
mortgaged premises or any part thereof
3. Transferee or grantee of the property
4. Second mortgagee or junior encumbrancers or
any person claiming a right or interest in the
property subordinate to the mortgage sought to
be foreclosed to foreclose their equity of
redemption
 But if the action is by the junior
encumbrancer, first mortgagee MAY also be
joined as defendant
150
5. Mortgagor even if not owner of the mortgaged
property should be included to satisfy the
deficiency
JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE
(Rule 68, Sec. 2)
If upon trial, the facts set forth in the complaint are true,
the court shall:
1. Ascertain the amount due to the plaintiff upon
the mortgage debt or obligation including
interests, other charges approved, costs
2. Render judgment for the sum so found due
3. Order that the amount be paid to the court or to
judgment obligee
a. Within a period of not less than 90 days but
not more than 120 days from entry of
judgment
b. In default of such payment, property shall be
sold at public auction to satisfy judgment
Judgment on Foreclosure is the judgment of the court
ordering the debtor to pay within 90-120 days from entry
of judgment after ascertaining the amount due to plaintiff
NOTE: Multiple appeals are allowed under Rule 68
1. Judgment of foreclosure is appealable (Sec. 2)
2. Order confirming foreclosure sale is a final
disposition with respect to the issue of validity
and regularity of the sale (Sec. 3)
3. Deficiency judgment is a disposition on the
merits of the correctness of such award (Sec. 6)
SALE OF MORTGAGED PROPERTY; EFFECT (Rule 68,
Sec. 3)
When Proper: When Defendant fails to pay the amount of
judgment within the period specified, the court shall
order the property to be sold.
How: By motion and under the provisions of Rule 39.
It is the ministerial duty of the court to order the
foreclosure of the property when the debt is not paid
within the period specified.
A motion for such order of sale is non-litigable and may
be made ex parte. [Gov’t of P.I. v De las Cajigas (1931)]
NOTE: Such sale shall not affect the rights of persons
holding prior encumbrances upon the property or a part
thereof.
Order of Confirmation - When confirmed by an order of
the court, also upon motion, it shall operate to divest the
rights in the property of all the parties to the action and to
vest their rights in the purchaser, subject to such rights of
redemption as may be allowed by law.
Confirmation of the sale of mortgaged real property vests
title in the purchaser including the equity of redemption,
it retroacts to the date of the sale. It cuts off all the rights
or interests of the mortgagor and of the mortgagee.
[Lozame v Amores (1985]].
The motion for the confirmation of the sale requires a
hearing to grant an opportunity to the mortgagor to show
cause why the sale should not be confirmed [Tiglao v
Botones, 90 Phil 275], as by proof of irregularities therein
or of gross inadequacy of the price. Lack of notice vitiates
the confirmation of the sale.
Writ of Possession - Upon the finality of the order of
confirmation or upon the expiration of the period of
redemption when allowed by law, the purchaser at the
auction sale or last redemptioner, if any, shall be entitled
to the possession of the property, unless a third party is
actually holding the same adversely to the judgment
obligor.
DISPOSITION OF PROCEEDS OF SALE (Rule 68, Sec. 4)
1. Amount realized from the foreclosure sale, less
costs of the sale, shall be paid to the person
foreclosing
2. Court shall then render judgment against
defendant for any such balance for which he may
personally be liable to plaintiff
3. Execution may then issue immediately if balance
is all due at the time of rendition of judgment
a. If not, plaintiff shall be entitled to execution
at such time as the balance remaining
becomes due
Instances when court CANNOT render deficiency judgment
1. Recto Law (Art. 1484, par. 3)
2. When mortgagor is a non-resident and is not
found in the Philippines
3. When mortgagor dies, mortgagee may file his
claim with the probate court (Sec. 7, Rule 86)
4. If mortgagor is a third person but not solidarily
liable with debtor
 No deficiency judgment may be rendered
against owner who is not a mortgagor and
has not assumed personal liability for the
debt
 Remedy is ordinary action against debtor
5. In case of a mortgage debt due from the estate of
a deceased mortgagor and the mortgage creditor
availed of the third remedy which is to rely upon
his mortgage alone and foreclosing the same
within the statute of limitations (Sec. 7, Rule 86)

2. When there is a balance or residue after paying

the mortgage debt, the same shall be paid to JUDICIAL FORECLOSURE vs. EXTRAJUDICIAL
junior encumbrancers in the order of priority as FORECLOSURE
ascertained by the court
JUDICIAL EXTRAJUDICIAL
3. If there are no junior encumbrancers, the residue FORECLOSURE FORECLOSURE
goes to the mortgagor or his authorized agent, or Requires court No court intervention
any other person entitled to it intervention necessary
There is only an equity
Right of redemption exists
of redemption
DEFICIENCY JUDGMENT; INSTANCES WHEN COURT Governed by Rule 68 Governed by Act 3135
CANNOT RENDER DEFICIENCY JUDGMENT (Rule 68, No Deficiency judgment
Sec. 6) There could be a because there is no judicial
Deficiency Judgment proceeding but recovery of
Deficiency Judgment is judgment rendered by the court deficiency is allowed
holding defendant liable for any unpaid balance due to the Recovery of deficiency Recovery of deficiency is
mortgagee if the proceeds from the foreclosure sale do can be done by mere through an independent
not satisfy the entire debt. motion action
In extrajudicial foreclosure, the mortgagee can also
recover by action any deficiency in the mortgage account EQUITY OF REDEMPTION vs. RIGHT OF REDEMPTION
which was not realized in the foreclosure sale. [PNB v. CA
(1999)] Equity of Redemption is the right of the defendant
mortgagor to extinguish the mortgage and retain
A motion for deficiency judgment may be made only after ownership of the property by paying the secured debt
the sale and after it becomes known that a deficiency within the 90 to 120 day period after entry of judgment or
exists. [Governor of the Philippine Islands v. Torralba Vda. even after the foreclosure sale but prior to its
de Santos (1935)] confirmation
If the debtor dies, the deficiency may be filed as a claim
EQUITY OF REDEMPTION RIGHT OF REDEMPTION
against his estate. [Rule 86, Sec. 7]
Right of the defendant Right of the debtor, his
mortgagor to extinguish successor in interest, or
How Done:
the mortgage and retain any judicial creditor of said
1. Judgment creditor files motion for deficiency
ownership of the property debtor or any person
judgment
by paying the secured having a lien on the
151
 debt within the 90 to 120 property subsequent to
day period after entry of the mortgage or deed of
judgment or even after the
foreclosure sale but prior
to its confirmation
Period is 90-120 days
Period is 1 year from date
after entry of judgment or
of registration of
even after foreclosure sale
certificate of sale
but prior to confirmation
Governed by Sec. 29-31,
Governed by Rule 68
Rule 39
EXTRAJUDICIAL
JUDICIAL FORECLOSURE
FORECLOSURE
Mortgagor has a right to
redeem the property
No right of redemption,
within one year from
only equity of redemption
registration of the deed of
sale
EXCEPT: Sec. 47 of the
General Banking Act
provides that in case of
extrajudicial foreclosure,
EXCEPT: Those granted by
juridical persons shall
banks or banking
have the right to redeem
institutions as provided
until, but not after, the
by the General Banking
registration of the
Act (mortgagor may
certificate of foreclosure
exercise a right of
sale with the Register of
redemption)
Deeds which in no case
shall be more than 3
months after foreclosure,
whichever is earlier
NOTE: What Sec. 2 and 3, Rule 68 provide for is the
mortgagor’s EQUITY, nor right, of redemption. - This
may be exercised by him even beyond the period to pay
the judgment obligation and even after the foreclosure
sale itself, provided it be before the order of the
confirmation of sale
152
PARTITION
NATURE
Partition is the process of dividing and assigning the
property owned in common among the various co-owners
thereof in proportion to their respective interests in said
property.
Partition may be:
1. JUDICIAL – Procedure is Rule 69
2. EXTRAJUDICIAL – No court intervention required
The partition of property may be made voluntarily (by
agreement) or compulsorily under the Rules. Even if the
parties had resorted to judicial partition, they may still
make an amicable partition of the property.
An action for partition and accounting under Rule 69 is in
the nature of an action QUASI IN REM. Such an action is
essentially for the purpose of affecting the defendant’s
interest in a specific property and not to render a
judgment against him.
WHEN CAN PARTITION BE MADE
General Rule: It can be made anytime. The right to
demand partition is imprescriptible.
Exception to Imprescriptibility of Right to Partition: If a co-
owner asserts adverse title to the property. In which case,
period of prescription runs from such time of assertion of
adverse title.
Exceptions to the Right to Ask for Partition:
1. When there is a stipulation against it, not
exceeding 10 years [Art. 494, Civil Code]
2. When partition is prohibited by the donor or
testator for a period not exceeding 20 years [Art.
494, 1083 Civil Code]
3. When partition is prohibited by law (e.g. ACP,
party wall) [Art. 494, Civil Code]
4. When the property is not subject to a physical
division and to do so would render it
unserviceable for the use for which is it intended
[Art. 495 Civil Code] or
5. When the condition imposed upon voluntary
heirs before they can demand partition has not
yet been fulfilled. [Art. 1084 Civil Code]
WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE
DEFENDANTS (Rule 69, Sec. 1)
Who May File: A person having the right to compel
partition of real estate, or of personal property, or both
real and personal property (Sec. 1, Sec. 13)
Venue: An action for partition should be filed in the RTC of
the province where the property or part thereof is
situated.
Parties
1. The plaintiff is the person who is supposed to be
a co-owner of the property
2. Defendants are all the co-owners, who are
indispensable parties
3. Creditors or assignees of co-owners may also
intervene and object to the partition
MATTERS TO ALLEGE IN THE COMPLAINT FOR
PARTITION
Contents of the Complaint:
1. Nature and extent of his title
2. Adequate description of the real estate sought to
be partitioned
3. Joining of Defendants – All other persons
interested in the property
TWO STAGES IN EVERY ACTION FOR PARTITION
First Stage: Determination of the propriety of partition
This involves a determination of whether the subject
property is owned in common and whether all the co-
owners are made parties in the case.
The order may also require an accounting of rents and
profits recovered by the defendant. This order of partition
is appealable. [Miranda v. Court of Appeals (1976)]
If not appealed, then the parties may partition the
common property in the way they want. If they cannot
agree, then the case goes into the second stage. However,
the order of accounting may in the meantime be executed.
[De Mesa v. CA (1994)]
Second Stage: Actual partitioning of the subject property
This is also a complete proceeding and the order or
decision is appealable.
When there was a prior partition, the fact that the share
of each co-heir has not been technically described and the
title over the whole lot remains uncancelled does not
negate such partition.
There can be no partition again because there is no more
common property. [Noceda v. CA (1999)]
ORDER OF PARTITION AND PARTITION BY
AGREEMENT
Order of Partition: The court issues an order of partition
AFTER the trial and the court finds that the plaintiff has a
right to partition. The court orders the partition of the
property.
The parties may make the partition proper themselves, by
agreement:
153
1. After the issuance of the order of partition, the
parties will then be asked if they agree to make
partition of the property among themselves
2. If they agree, proper instruments of conveyance
will be executed to effect the partition.
3. After the execution of instruments of conveyance,
the court shall confirm the partition through a
final order.
4. The final order of partition and the instruments
of conveyance shall be registered with the
Registry of Deeds where the property is situated.
[Rule 69, Sec. 2]
PARTITION BY COMMISSIONERS; APPOINTMENT OF
COMMISSIONERS; COMMISSIONER’S REPORT; COURT
ACTION UPON COMMISSIONER’S REPORT
When proper: If parties fail to agree on the manner of
partition, commissioners are appointed to make partition.
How Done: The court appoints not more than 3 competent
and disinterested commissioners to make the partition.
(Sec. 3)
Oath of the Commissioners: Before entering into their
duties, commissioners must first make an oath that they
will faithfully perform their duties as commissioners.
Such oath is to be filed in court. (Sec. 4)
Duties of the Commissioners:
1. They shall view and examine real estate, after
due notice to parties to attend at such view and
examination
2. They shall hear the parties as to their preference
in the portion to be set apart to them
3. They shall also determine the comparative value
thereof
4. They shall set apart the same to the parties in lots
or parcels as will be most advantageous and
equitable considering the improvements,
situation, and quality of the parts thereof
Assignment of Real Estate to One Party (Sec. 5)
1. General Rule: If the commissioners should
determine that the real estate cannot be divided
without prejudice to the interests of the parties,
the court may order that the property be
assigned to one of the parties willing to take the
same PROVIDED he pays to the other parties
such amounts as the commissioners deem
equitable
2. Exception: if one of the parties asks that the
property be sold instead of being so assigned,
then the court shall ORDER the commissioners to
sell the real estate at public sale under such
conditions and within such time as the court may
determine
Commissioner’s Report: Commissioners shall make a full
accurate report to the court. Contents: Judgment shall state the Judgment shall vest the
1. All proceedings as to the partition, or name of the purchaser or real estate in the
2. The assignment of real estate to one of the purchasers and a definite purchaser(s), making the
parties, or description of the parcels of payment(s) free from the
3. The sale of the same real estate sold to each claims of any parties to the
purchaser action.
Upon filing of Commissioner’s Report:
1. Clerk shall serve copies on all interested parties
with notice that they are allowed to file
objections A certified copy of the judgment shall in either case be
2. Parties may file objections within 10 days upon recorded in the registry of deeds of the place in which the
receipt of notice real estate is situated. [Rule 69, Sec. 11]

Hearing on the Report (Sec. 7)

1. When Conducted:
a. Upon expiration of the 10 day period for
filing objections; or
b. Even before expiration but after the
interested parties have filed their objections
or their statement of agreement therewith
PARTITION OF PERSONAL PROPERTY
The provisions of Rule 69 shall apply to partitions of
estates composed of personal property, or of both real
and personal property, in so far as the same may be
applicable. (Sec. 13)

2. The court may:

a. Accept the report and render judgment in
accordance therewith; or
b. Recommit the same to commissioners for
further report of facts, for cause shown; or
c. Set aside the report and appoint new
commissioners; or
d. Accept the report in part and reject in part;
e. Make such order and render such judgment
as shall effectuate a fair and just partition of
the real estate, or of its value, if assigned or
sold
JUDGMENT AND ITS EFFECTS (Rule 69, Sec. 11)
PRESCRIPTION OF ACTION
The right of action to demand partition does not prescribe
[De Castro v. Echarri (1911)], EXCEPT where one of the
interested parties openly and adversely occupies the
property without recognizing the co-ownership [Cordova
v. Cordova (1958)] in which case, acquisitive prescription
may set in.
If a co-owner repudiates the co-ownership and makes
known such repudiation to the other co-owners, then
partition is no longer a proper remedy of the aggrieved
co-owner. He should file an accion reivindicatoria, which
is prescriptible. [Roque v. IAC (1988)]

Contents of Judgment Effects of Judgment

If Actual Partition Is Properly Made
Judgment shall state
Judgment shall vest in
definitely, by metes and
each party to the action in
bounds and adequate
severalty the portion of
description, the particular
the real estate assigned to
portion of the real estate
him.
assigned to each party.
If The Whole Property Is Assigned To One Of The Parties
After Payment
Judgment shall vest in the
Judgment shall state the fact
party making the payment
of such payment and of the
the whole of the real
assignment of the real estate
estate free from any
to the party making the
interest on the part of the
payment.
other parties.
If Property Is Sold And Sale Is Confirmed By The Court

154
 FORCIBLE ENTRY AND UNLAWFUL for more than 1 has lasted for
DETAINER year more than
one year
NATURE All cases of
forcible entry
Ejectment cases are SUMMARY proceedings intended to and unlawful
provide an expeditious means of protecting actual detainer,
RTC has jurisdiction if value of the
possession of property. irrespective of
property exceeds P20,000 outside
the amount of
Metro Manila; exceeds P50,000
Reason: The owners of property have no authority to use damages or
within Metro Manila.
force and violence to eject alleged usurpers who were in unpaid rentals
prior physical possession of it. They must file the sought to be
MTC has jurisdiction if value of
appropriate action in court and should not take the law in recovered
property does not exceed the above
their own hands. should be
amounts
brought to the
(RA 7691 expanded the jurisdiction
NOTE: The Rule on Summary Procedure applies MTC.
of 1st level courts)
only in cases filed before the MTC However, if not
brought within
DEFINITIONS AND DISTINCTIONS 1 year, RTC has
jurisdiction
FORCIBLY ENTRY UNLAFUL DETAINER
(Detentacion) (Desahucio)
Possession is inceptively HOW TO DETERMINE JURISDICTION
Possession of land by
lawful but it becomes
defendant is unlawful In Accion Interdictal: In the proper Municipal Trial Court
illegal by reason of the
from the beginning as he
termination of his right to
acquires possession by NOTE: Amount of rents and damages claimed
possession of the property
force, intimidation, does not affect the jurisdiction of the MTC
under his contract with the
strategy, threat, or stealth because they are only incidental or accessory to
plaintiff
Demand is jurisdictional if the main action
No previous demand for
the ground is non-payment
defendant to vacate the HOWEVER, municipal courts have no jurisdiction over a
of rentals or failure to
premises is necessary FEUD case involving agricultural tenants. Jurisdiction is
comply with lease contract
with the HLURB
Plaintiff must prove that
he was in prior physical
Plaintiff need not have In accion publiciana and accion reinvindicatoria:
possession of the
been in prior physical 1. RTC has jurisdiction where the assessed value of
premises until he was
possession the property exceeds P20K or, in MM, P50k
deprived thereof by
2. MTC has jurisdiction if the assessed value does
defendant
not exceed said amounts
The 1-year period is
Period is counted from the
generally counted from
date of last letter of
date of actual entry on
demand WHO MAY INSTITUTE THE ACTION AND WHEN;
land
AGAINST WHOM MAINTAINED
The issue centers on who The issue centers on
was in prior possession de whether the defendant’s
Who May Institute Proceedings (Rule 70, Sec. 1)
facto. right to possess has
1. In Forcible Entry:
expired or not.
a. A person deprived of possession of any land
or building by force, intimidation, strategy,
threat, or stealth (FISTS)
DISTINGUISHED FROM ACCION PUBLICIANA, ACCION
REINVINDICATORIA, ACCION INTERDICTAL
2. In Unlawful Detainer:
a. Lessor, vendor, vendee or other person
The Three Kinds of Action for Recovery of Possession
against whom any land or building is
unlawfully withheld
ACCION ACCION ACCION b. Or their legal representatives or assigns
INTERDICTAL PUBLICIANA REINVINDICATORIA
Summary action A plenary Period of Filing: Within ONE (1) year after such unlawful
An action for
for recovery of action for deprivation or withholding of possession. Reckoning
recovery of
physical recovery of points:
ownership, which
possession real right of 1. For forcible entry, it is counted from date of entry
necessarily includes
where the possession or taking of possession
the recovery of
dispossession when 2. For unlawful detainer, it is counted from:
possession
has not lasted dispossession
155
 a. Date of last demand to vacate in case of non-
payment of rent or non-compliance with
conditions of the lease
b. Date of notice to quit, in case of tacit renewal
of lease
c. Date of revocation of the permit in case of
occupancy on mere tolerance or under
temporary permit
Against whom may the action be maintained - Person or
persons unlawfully withholding or depriving of
possession, or any person/s claiming under them:
1. Action of Forcible Entry and Unlawful Detainer
(FEUD) may be maintained only against one in
possession at the commencement of the action
2. Tenant with right of possession may bring action
against another tenant
3. Vendor may bring action for ejectment against
vendee upon failure to pay installments
4. FEUD lie against the very owner of the property
5. Action may be maintained against government
officials or agents acting in behalf of the
government, even if government is not made a
party to the action
PLEADINGS ALLOWED
Pleadings must be VERIFIED. (Rule 70, Sec. 4)
What must be alleged in a complaint for forcible entry:
1. That plaintiff was in prior physical possession of
the property in litigation until he was deprived
thereof by defendant
2. That the dispossession was through FISTS
3. That the complaint was filed within 1 year from
dispossession
What must be alleged in a complaint for unlawful detainer:
1. That defendant is unlawfully withholding
possession from plaintiff because his right to
possess had expired
2. That landlord has made a demand upon tenant to
comply with the terms of the contract and to
return the possession of the property, and that
the tenant failed to satisfy the demand within 15
or 5 days, in case of buildings
3. That the complaint is filed within 1 year from
demand
Allowed pleadings:
1. Complaint
2. Compulsory Counterclaim pleaded in the answer
3. Cross-claim pleaded in the answer
4. Answer
ACTION ON COMPLAINT (Rule 70, Sec. 5)
From the examination of allegations in the complaint, the
court may:
1. Dismiss the case outright on any grounds
mentioned in Rule 16
156
2. If there is no ground for dismissal, court issues
summons
Answer by defendant (Rule 70, Sec. 6) – Defendant shall
file his answer within 10 days from service of summons
Effect of Failure to Answer (Rule 70, Sec. 7) - Court shall
render judgment; motu proprio or upon motion
1. Judgment:
a. Warranted by the facts alleged in the
complaint
b. Limited to what is prayed for
2. Court may reduce the amount of damages and
attorney’s fees claimed
a. For being excessive or otherwise
unconscionable
b. In the exercise of its discretion
c. No prejudice to applicability of Sec. 3(c), Rule
9 if there are 2 or more defendants
Preliminary Conference (Rule 70, Sec. 8) – Preliminary
conference shall be held not later than 30 days after filing
of last answer.
Submission of Affidavits and Position Papers (Rule 70, Sec.
10) – Affidavits and position papers are to be submitted
within 10 days from receipt of the Order stating the
matters taken in the preliminary conference.
Rendition of Judgment (Rule 70, Sec. 11) – Court shall
render judgment within 30 days after receipt of affidavits
and position papers.
WHEN DEMAND NECESSARY
Rule 70, Sec. 2 requires a prior written demand against
the lessee before the lessor can proceed against him.
NOTE: This applies ONLY to unlawful detainer
cases.
It is only where defendant fails to comply with the
demand within the periods provided by Sec. 2 will his
possession become unlawful.
Requisites before the lessor can proceed against lessee
1. Demand is made by lessor to lessee:
a. Demand to pay and vacate; or
b. Demand to comply with conditions of the
lease and to vacate
2. Lessee fails to comply with the demand:
a. After 15 days in the case of lands; or
b. After 5 days in case of buildings
NOTE: Demand contemplated by Sec. 2 is jurisdictional
and is always two-fold.
Demand upon a tenant may be oral. (Jakihaca v. Aquino,
1990)
A person who occupies the land of another at the latter's
tolerance or permission, without any contract between
them is necessarily bound by an implied promise that he
will vacate upon demand, failing which, an action for
unlawful detainer may be instituted against him.
(Dakudao v. Consolacion, 1983)
PRELIMINARY INJUNCTION AND PRELIMINARY
MANDATORY INJUNCTION
Court may grant preliminary injunction in accordance
with Rule 58 to prevent defendant from committing
further acts of dispossession against plaintiff (Rule 70,
Sec. 15).
How done: Possessor may present a motion in the action
for issuance of preliminary mandatory injunction within 5
days from filing of complaint to restore him in his
possession. Court shall decide the motion within 30 days
from filing.
Preliminary mandatory injunction shall be available:
1. At the start of the action (Rule 70, Sec. 15)
2. On appeal to the RTC (Sec. 2) upon motion of
plaintiff within 10 days from perfection of appeal
Preliminary preventive injunction is available in
either case. Note that Sec. 15 makes the provisions of
Rule 58 applicable to Rule 70.
NOTE: Note that there is no distinction as to the type of
ejectment case involved.
The injunction is to restore to plaintiff in possession
1. If the court is satisfied that the defendant’s
appeal is frivolous or dilatory, or
2. That the appeal of plaintiff is prima facie
meritorious
RESOLVING DEFENSE OF OWNERSHIP (Rule 70, Sec. 16)
In an action for unlawful detainer, the question of
possession is primordial while the issue of ownership is
generally unessential. The issue of ownership should be
raised by the affected party in an appropriate action.
Under BP 129, when in FEUD cases, the defendants raise
the question of ownership in his pleadings, and the issue
of ownership, the MTCs nevertheless have undoubted
competence to resolve the issue of ownership ONLY TO
DETERMINE THE ISSUE OF POSSESSION
Guidelines laid down by the Court in Refugia, et al. v. CA
regarding the legislative prescription in Sec. 33 (2). BP
129:
1. Primal rule is that the principal issue must be
that of possession
a. Ownership is merely ancillary
b. Issue of ownership may be resolved but only
for the purpose of determining the issue of
possession
2. It must sufficiently appear from allegations of
complaint that what plaintiff really and primarily
seeks is restoration of possession
157
3. Inferior court cannot adjudicate on the nature of
ownership where relationship of lease has been
sufficiently established
a. UNLESS it be proven that there has been a
subsequent change in or termination of that
relationship between parties
4. The rule in forcible entry, but not in unlawful
detainer, is that a party who can prove prior
possession can recover such possession even
against the owner himself
a. Hence, it prior possession may be
ascertained in some other way, inferior court
cannot intrude into the issue of ownership
5. Where the question of who has prior possession
hinges on the issue of who the real owner is
a. Inferior court may resolve issue of
ownership
b. But such pronouncement is merely
provisional
c. It does not bar or prejudice an action
between the same parties involving title
HOW TO STAY IMMEDIATE EXECUTION OF JUDGMENT
(Rule 70, Sec. 19)
GENERAL RULE: Judgment of the MTC against defendant
in ejectment cases is immediately executory
EXCEPTION: When the following concur:
1. The defendant perfects his appeal
2. He files a sufficient supersedeas bond
 To pay the rents, damages, and costs
accruing down to the time judgment
appealed from
 The supersedeas bond shall be transmitted
by the MTC, with the other papers, to the RTC
Clerk
3. He deposits with the appellate court:
a. The amount of rent due from time to time
under the contract, or
b. In the absence of contract, the reasonable
value of the use and occupation of premises
for the preceding month or period
determined by judgment on or before the
10th day of each succeeding month or period
(Chua v. CA, 1998)
The judgment of the Regional Trial Court against the
defendant shall be immediately executory, without
prejudice to a further appeal that may be taken
therefrom. (Rule 70, Sec. 21)
SUMMARY PROCEDURE, PROHIBITED PLEADINGS
GENERAL RULE: All actions for FEUD shall be governed
by the summary procedure of Rule 70, irrespective of the
amount of damages or unpaid rentals sought to be
recovered
EXCEPTIONS: CONTEMPT
1. In cases covered by the agricultural tenancy laws
2. When the law otherwise expressly provides NATURE

Prohibited Motions: Contempt of Court is disobedience to the court by acting

1. Motion for a BILL of particulars
2. Motion for EXTENSION of time to file pleadings,
affidavits, or any other paper
3. Motion for NEW trial, or for reconsideration of a
judgment, or for reopening of trial
4. Motion to DISMISS the complaint; Except on the
ground for lack of jurisdiction over the subject
matter or failure to comply with Sec. 12
5. Motion to DECLARE defendant in default
6. DILATORY motions for postponement
Prohibited Pleadings:
1. THIRD-party complaints
2. REPLY
3. INTERVENTIONS
4. PETITION for relief from judgment
5. PETITION for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court
in opposition to its authority, justice, and dignity. It
signifies not only a willful disregard of disobedience to
the court’s orders but also conduct tending to bring the
authority of the court and administration of law into
disrepute, or, in some manner, to impede the due
administration of justice.
The power to declare person in contempt of court and in
dealing with him accordingly is an INHERENT power of
the court. It is used as a means to protect and preserve
the dignity of the court, the solemnity of the proceedings,
and administration of justice.
KINDS OF CONTEMPT; PURPOSE AND NATURE OF
EACH
According to Nature
1. CRIMINAL CONTEMPT – conduct directed against
the authority and dignity of the court or a judge
acting judicially
2. CIVIL CONTEMPT – failure to do something
ordered to be done by a court or by a judge for
the benefit of the opposing party

CRIMINAL CONTEMPT CIVIL CONTEMPT

Punitive in nature Remedial in nature
Purpose is to provide a
Purpose is to preserve the remedy for an injured
court’s authority and to suitor and to coerce
punish for disobedience of compliance with an order;
its orders for the preservation of the
rights of private persons
Intent is necessary Intent is not necessary
Instituted by the aggrieved
party, or his successor, or
State is the real
someone who has a
prosecutor
pecuniary interest in the
right to be protected
Proof required is proof Proof required is more
beyond reasonable doubt than mere preponderance
If judgment is for
If accused is acquitted,
respondent, there can be
there can be no appeal
appeal

According to Manner of Commission

1. DIRECT CONTEMPT – act committed in the
presence of or so near the court or judge as to
obstruct or interrupt the proceedings before the
same
2. INDIRECT CONTEMPT – one not committed in
the presence of the court. It is an act done at a
distance which tends to belittle, degrade,
obstruct, or embarrass the court and justice

DIRECT CONTEMPT INDIRECT CONTEMPT

Committed in the Not committed within the
presence of or so near a presence of the court
158
 court Imprisonment not
There is charge and exceeding 10 days
Summary in nature
hearing Fine not exceeding P200
Punishment: If lower court: and/or
Punishment:
If committed against the Imprisonment not
If committed against RTC:
RTC: Fine of not exceeding exceeding 1 day
Fine not exceeding
P2,000 and/or
P30,000 and/or
imprisonment not Remedy of a person adjudged in direct contempt (Rule 71,
imprisonment not
exceeding 10 days Sec. 2)
exceeding 6 months
If committed against the 1. He cannot appeal
If committed against MTC:
MTC: Fine not exceeding 2. But he may file certiorari or prohibition
Fine not exceeding P5,000
P200 and or a. Execution of judgment shall be suspended
and/or imprisonment not
imprisonment not pending resolution of such petition,
exceeding 1 month
exceeding 1 day PROVIDED:
Remedy is certiorari or (1) He files a bond fixed by the court which
Remedy is appeal
prohibition rendered judgment, and
Otherwise known as Otherwise known as (2) Conditioned that he will abide by and
Contempt in Facie Curiae Constructive Contempt perform the judgment should the
petition be decided against him
Contempt, whether direct or indirect, may be civil or
criminal depending on the nature and effect of
contemptuous act. INDIRECT CONTEMPT

The real character of the proceedings in contempt cases is
to be determined by the relief sought or by the dominant
purpose. The proceedings are to be regarded as criminal
when the purpose is primarily punishment, and civil
when the purpose is primarily compensatory or remedial.
DIRECT CONTEMPT
For a person to be adjudged guilty of direct contempt, he
must commit a “misbehavior in the presence of or so near
a judge as to interrupt the administration of justice …”
Grounds for Direct Contempt (Rule 71, Sec. 1)
1. DISRESPECT toward the court;
2. OFFENSIVE personalities toward others
3. REFUSAL to be sworn or answer as witness or
subscribe an affidavit when lawfully required to
do so
4. MISBEHAVIOR in the presence of or so near a
court as to obstruct or interrupt the proceedings
5. When the counsel WILLFULLY and deliberately
engages in forum shopping
Procedure: Summarily adjudged in contempt by such
court
By whom initiated:
1. Generally, civil contempt proceedings should be
instituted by an aggrieved party, or his successor,
or someone who has pecuniary interest in the
right to be protected
2. In criminal contempt proceedings, it is generally
held that the State is the real prosecutor
Penalties:
OFFENSE PENALTY
If RTC or a court of Fine not exceeding P2,000
equivalent or higher rank and/or
159
Specific acts constituting indirect contempt (Rule 70, Sec.
3)
1. MISBEHAVIOR of an officer of a court in the
performance of his official duties or in his official
transactions
2. ABUSE of or any unlawful interference with
processes or proceedings of a court not
constituting direct contempt
3. DISOBEDIENCE or resistance to lawful writ,
process, order, or judgment of a court, or any
unlawful intrusion to any real property after
being ejected
4. FAILURE to obey subpoena duly served
5. ASSUMING to be an attorney or officer of a court,
and acting as such without authority
6. IMPROPER conduct tending to impede, obstruct,
or degrade administration of justice
7. RESCUE, or attempted rescue, of a person or
property in custody of an officer
8. Failure by COUNSEL to inform the court of the
death of his client
Procedural requisites for indirect contempt proceedings:
1. A charge in writing or an order of the court to
appear and explain
2. An opportunity for respondent to comment on
the charge and to appear and explain his conduct
Two modes of commencing a proceeding for indirect
contempt (Rule 70, Sec. 4)
1. Motu proprio by the court against which
contempt was committed
a. By order or any other formal charge
requiring respondent to show why he should
not be punished for contempt
2. Independent action in all other cases
a. By a charge commenced by a verified petition
with supporting particulars
Where Charge is to be Filed (Rule 70, Sec. 5)
 1. General rule: Proceeding for Indirect Contempt Rule 71, Sec. 8 does not apply to tenants who refused or
shall be filed and tried by the court against which failed to pay their rentals to the special administratrix of
the contumacious conduct was committed. the property. The non-payment of rentals, which is a civil
debt, is covered by the constitutional guarantee against
2. Exceptions: imprisonment. [Regalado]
a. If committed against a lower court, it may be
tried by the RTC, regardless of the imposable
penalty; and CONTEMPT AGAINST QUASI-JUDICIAL BODIES (Rule
b. If committed against the SC, it may cause it to 71, Sec. 12)
be investigated by the prosecutor and filed
with the RTC, or for hearing and Rule 71 shall apply to contempt committed against
recommendation where the charge involves persons, entities, bodies, or agencies exercising quasi-
questions of fact judicial functions or have suppletory effect to such rules
as they may have adopted.
Penalties for indirect contempt (Rule 71, Sec. 7)
RTC of the place where the contempt was committed shall
OFFENSE PENALTY have jurisdiction.
Fine not exceeding P30,000
If against RTC, or It is not within the jurisdiction and competence of quasi-
and/or
court of equivalent or judicial bodies to decide indirect contempt cases. The
Imprisonment not exceeding 6
higher rank requirement for a verified petition must also be complied
months
Fine not exceeding P500, and/or with (e.g. DARAB has no power to decide the contempt
If committed against charge filed before it). [Land Bank v Listana (2003)]
Imprisonment not exceeding 1
lower court
month
Offender may also be ordered to Rule 71, Sec. 12 confers contempt powers on all Quasi-
make complete restitution to the Judicial entities or supplements their rules, unless the
party injured by such violation of applicable law provides otherwise.
the property involved or such
If contempt consists amount as may be alleged and Acts or violations against quasi-judicial bodies punishable
in violation of a writ proved. as contempt: where a person, without lawful excuse, fails
of injunction, TRO, or to appear, make oath, give testimony or produce
status quo order If there is nothing more to documents when required to do so by the official or body
return, offender is personally exercising such powers. Other acts or violations cannot be
liable for the restitution of the punished as contempt unless specifically defined in the
money equivalent to the lost governing law as contempt of court or if it authorizes the
thing (Rosario Textile Mills v. CA) quasi-judicial body to punish for contempt, and providing
If committed against Penalty shall depend upon the the corresponding penalty. [People v. Mendoza (1953),
a person or entity provisions of the law which §13, Ch. 3, Bk VII, Admin Code of 1987]
exercising quasi- authorizes penalty for contempt
judicial functions against such persons or entities

Remedy of a person adjudged in indirect contempt (Rule

71, Sec. 11)

May be appealed to the proper court as in criminal cases,

but execution shall not be suspended until BOND is filed.

WHEN IMPRISONMENT SHALL BE IMPOSED

When the contempt consists in the refusal or omission to

do an act which is yet in the power of the respondent to
perform, he may be imprisoned by order of the court
concerned until he performs it. (Rule 71, Sec. 8)

The respondent “carried the keys to his prison in his own

pocket.” [Galvez v. Republic Surety & Insurance Co., Inc.
(1959)]

Only the judge who ordered the confinement of the

person for contempt of court can issue the Order of
Release. [Inoturan v Limsiaco, Jr. (2005)]

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 THE SPECIAL CIVIL ACTIONS
JURISDICTION
Personal Property:
1. MTC – if value not more than P300,000 outside Metro Manila, or not
more than P400,000 in Metro Manila (Sec. 33, BP129)
2. RTC – value exceeds P300,000 outside Metro Manila, or P400,000 in
Metro Manila, or if incapable of pecuniary estimation (Sec. 19, BP129)
INTERPLEADER
Real Property
1. MTC – assessed value not more than P20,000 outside Metro Manila or
not more than P50,000 in Metro Manila (Sec. 33, BP 129)
2. RTC – value exceeds P20,000 if outside Metro Manila, or P50,000 if in
Metro Manila, or incapable of pecuniary estimation (Sec. 19, BP129)
VENUE
Rule 4 applies
If the action affects title to or possession of real property
Venue is where the real property involved or a portion thereof is situated
All other actions—At the election of the plaintiff
1. Where plaintiff or any of the principal plaintiffs reside; or
2. Where defendant or any of the principal defendants resides; or
3. In case of an non-resident, where he may be found
Rule 4 applies

If the action affects title to or possession of real property

GENERAL RULE: In the appropriate RTC
Venue is where the real property involved or a portion thereof is situated
DECLARATORY RELIEF
EXCEPTION: Where the action is for reconveyance, cancellation or quieting of title
All other actions—At the election of the plaintiff
to real property, jurisdiction will depend on the assessed value of the property
1. Where plaintiff or any of the principal plaintiffs reside; or
2. Where defendant or any of the principal defendants resides; or
3. In case of an non-resident, where he may be found
REVIEW OF
JUDGMENTS AND FINAL With the SC
Certiorari rules apply
ORDERS OF Via Special Civil Action of Certiorari
COMELEC/COA
RTC, CA, SC,
CERTIORARI RTC where the respondent is situated, where petition relates to an act or omission of a corporation, board,
Sandiganbayan (in aid of its appellate jurisdiction),
PROHIBITION an officer, or person
COMELEC (in election cases involving an act or omission by MTC or RTC, in aid of
MANDAMUS (Rule 65, Sec. 4)
its appellate jurisdiction_
Action can be brought in: The SC, CA, or RTC exercising jurisdiction over the territorial area where
RTC, CA, SC
respondent resides or any of the respondent resides
Sandiganbayan (exclusive original jurisdiction over quo warranto cases filed by
the PCGG)
QUO WARRANTO If commenced by the SolGen, it may be filed with: RTC Manila, CA, or SC
COMELEC (exclusive jurisdiction over cases falling under the OEC)
SEC for quo warranto against duly licensed association (Corp Code rules apply, not
File in the SEC (following the Corp Code):If petition for quo warranto is against a corporation or against
the ROC)
persons who usurp an office in a corporation
EXPROPRIATION With the RTC Where the real property involved, or a portion thereof, is situated
JUDICIAL
With the RTC Where the real property involved, or a portion thereof, is situated
FORECLOSURE
Rule 4 applies

If the action affects title to or possession of real property

PARTITION With the RTC
Venue is where the real property involved or a portion thereof is situated

All other actions—At the election of the plaintiff

FORCIBLE ENTRY AND
With the MTC Where the real property involved, or a portion thereof, is situated
UNALWFUL DETAINER
If committed against RTC or a court of equivalent or higher rank, or against an officer appointed by it: File
with such court
CONTEMPT MTC, RTC, CA, SC If committed against a lower court. File with the RTC of the place in which lower court is sitting
If act was committed against persons or entities exercising quasi-judicial functions: File with the RTC of the
place wherein contempt was committed
161
162
SPECIAL RULES
The court may in its discretion reduce the amount of
damages and attorney’s fees claimed for being excessive
or unconscionable without prejudice to the applicability
of Sec. 4, Rule 18 ROC, if there are 2 or more defendants
REVISED RULES ON SUMMARY PROCEDURE
PRELIMINARY CONFERENCE AND APPEARANCES OF
PARTIES (Sec. 7)
CASES COVERED BY THE RULE (Sec. 1)
A preliminary conference shall be held not later than 30
days after the last answer is filed.
Rule shall govern the summary procedure in the MTC,
MTC in Cities, MCTC in the following cases falling within
Rules on pre-trial in ordinary cases shall be
their jurisdiction:
applicable unless inconsistent with the provisions of
this Rule
For Civil Cases:
1. Cases of forcible entry and unlawful detainer
Failure of plaintiff to appear in preliminary conference
a. Irrespective of the amount of damages or
1. Cause for dismissal of complaint
unpaid rentals sought to be recovered
2. Defendant who appears in the absence of plaintiff
b. Where attorney’s fees are awarded, it shall
shall be entitled to judgment on his counterclaim
not exceed P20,000
in accordance with Sec. 6
3. All cross-claims shall be dismissed
2. All other civil cases where total amount of
plaintiff’s claim does not exceed P100,000 or
If sole defendant shall fail to appear
P200,000 in Metropolitan Manila, exclusive of
1. Plaintiff entitled to judgment in accordance with
interest and costs
Sec. 6
a. EXCEPT: probate proceedings
2. Rule shall not apply where one of 2 or more
defendants sued under a common cause of action
For Criminal Cases
who had pleaded a common defense shall appear
1. Traffic laws, rules, and regulations violation
at preliminary conference
2. Rental law violations
3. Municipal or city ordinance violations
4. All other criminal cases where penalty prescribed
by law for offense charged is imprisonment not
exceeding 6 months and/or a fine not exceeding
P1,000
a. Irrespective of other imposable penalties,
accessory or otherwise, or of civil liability
arising therefrom
b. In offenses involving damage to property
through criminal negligence, this rule shall
govern where imposable fine does not
exceed P10,000

Rule shall not apply:

1. To a civil case where plaintiff’s cause of action is
pleaded in the same complaint with another
cause of action subject to ordinary procedure
2. To a criminal case where offense charged is
necessarily related to another criminal case
subject to ordinary procedure

EFFECT OF FAILURE TO ANSWER (Sec. 6)

If defendant fail to answer the complaint within the

period provided, court (motu proprio or on motion of
plaintiff) shall render judgment

The judgment:
1. As may be warranted by the facts alleged in the
complaint and
2. Limited to what is prayed for

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 KATARUNGANG PAMBARANGAY LAW (PD
1508; RA 7160 as amended) VENUE (RA 7610, Sec. 409)

SCOPE AND APPLICABILITY OF THE RULE PARTIES LUPON

Between actual residents
Lupon of said barangay
RA 7610 Sec. 399-422, and 515 is applicable. The LGC is of the same barangay
now the governing law on Katarungang Pambarangay. PD Lupon of the barangay
Between actual residents
1508 was expressly repealed where the respondent or
of different barangays but
any of the respondents
within same
CASES COVERED actually resides at the
city/municipality
option of complainant
All disputes, civil and criminal in nature, where parties Lupon of barangay were
actually reside in the SAME CITY/MUNICIPALITY are Involving real property or the real property or the
subjected barangay conciliation. any interest therein larger portion thereof is
located
SUBJECT MATTER FOR AMICABLE SETTLEMENT (Sec. Between parties arising at Lupon of the barangay
408, RA 7160) the workplace or at were the workplace or
institutions of learning institution is located
The lupon of each barangay shall have authority to bring
together the parties actually residing in the same city or EXECUTION
municipality for amicable settlement of all disputes.
The amicable settlement or arbitration award may be
WHEN PARTIES MAY GO DIRECTLY TO COURT enforced by execution by the lupon within six (6) months
from the date of the settlement. After the lapse of such
In these cases, referral to barangay conciliation is not a time, the settlement may be enforced by action in the
condition precedent for filing a case to court: appropriate city or municipal court. (Sec. 417, RA 7160)

1. Where one party is the government, or any REPUDIATION

subdivision or instrumentality thereof;
2. Where one party is a public officer or employee,
and the dispute relates to the performance of his
official functions;
3. Offenses punishable by imprisonment exceeding
one (1) year or a fine exceeding Five thousand
pesos (P5,000.00);
Any party to the dispute may, within ten (10) days from
the date of the settlement, repudiate the same by filing
with the lupon chairman a statement to that effect sworn
to before him, where the consent is vitiated by fraud,
violence, or intimidation. Such repudiation shall be
sufficient basis for the issuance of the certification for
filing a complaint as hereinabove provided. (Sec. 418, RA
7160)

4. Offenses where there is no private offended

party;

5. Where the dispute involves real properties

located in different cities or municipalities unless
the parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon;

6. Disputes involving parties who actually reside in

barangays of different cities or municipalities,
except where such barangay units adjoin each
other and the parties thereto agree to submit
their differences to amicable settlement by an
appropriate lupon;

7. Such other classes of disputes which the

President may determine in the interest of Justice
or upon the recommendation of the Secretary of
Justice.

The court in which non-criminal cases not falling within

the authority of the lupon under this Code are filed may,
at any time before trial motu propio refer the case to the
lupon concerned for amicable settlement.
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 RULES OF PROCEDURE FOR SMALL CLAIMS
CASES (A.M. No. 08-8-7-SC)
SCOPE AND APPLICABILITY OF THE RULE
This Rule shall govern the procedure in actions before the
MeTC, MTC in Cities, MTC and MCTC for payment of
money where the value of the claim does not exceed
P100,000 exclusive of interest and costs. (Sec. 2)
This Rule is applicable in all actions which are; (Sec. 4)
1. Purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or
reimbursement of sum of money, and
2. Civil aspect of criminal action, or reserved upon
the filing of the criminal action in court, pursuant
to Rule of 111 of the Revised Rules of Criminal
Procedure.
These claims or demands may be;
1. For money owned under any of the following;
a. Contract of Lease;
b. Contract of Loan;
c. Contract of Services;
d. Contract of Sale; or
e. Contract of Mortgage;
2. For damages arising from any of the following;
a. Fault or negligence;
b. Quasi-contract; or
c. Contract;
3. The enforcement of a barangay amicable
settlement or an arbitration award involving a
money claim covered by this Rule pursuant to
Sec. 417, LGC.
COMMENCEMENT OF SMALL CLAIMS ACTION;
RESPONSE (Sec. 5)
How commenced: By filing with the court an accomplished
and verified STATEMENT OF CLAIM in duplicate
Attachments to the Statement of Claim:
1. Certification of Non-forum Shopping
2. Two (2) duly certified photocopies of the
actionable document/s subject of the claim
3. Affidavits of witnesses and other evidence to
support the claim
NOTE: No evidence shall be allowed during the
hearing which was not attached to or submitted
together with the Claim. UNLESS good cause is shown
for admission of additional evidence.
No formal pleading, other than the Statement of Claim, is
necessary to initiate a small claims action.
After examination of allegations of the Claim, the court
may dismiss outright the case for any of the grounds
apparent for the dismissal of a civil action. (Sec. 9)
165
If no ground of dismissal is found, the court shall issue
Summons directing defendant to submit a verified
response. (Sec. 10)
The defendant shall file with the court and serve on the
plaintiff a duly accomplished and verified Response
within a non - extendible period of ten (10) days from
receipt of summons (Sec. 11). Attachments:
1. Certified photocopies of documents
2. Affidavits of witnesses
3. Evidence in support
NOTE: No evidence shall be allowed during
hearing which was not attached or submitted
together with the Response.
Should the defendant fail to file his response within the
required period, the court by itself shall render judgment
as may be warranted by the facts alleged in the Statement
of claim limited to what is prayed for. The court however,
may, in its discretion, reduce the amount of damages for
being excessive or unconscionable. (Sec. 12)
PROHIBITED PLEADINGS AND MOTIONS (Sec. 14)
The following pleadings, motions, and petitions shall not
be allowed in the cases covered by this Rule:
1. Motion to dismiss the compliant except on the
ground of lack of jurisdiction;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits, or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions.
APPEARANCES
The parties shall appear at the designated date of hearing
personally or through a representative authorized under
a Special Power of Attorney to:
1. Enter into an amicable settlement,
2. Submit of Judicial Dispute Resolution (JDR) and
3. Enter into stipulations or admissions of facts and
of documentary exhibits (Sec. 16)
No attorney shall appear in behalf of or represent a party
at the hearing, unless the attorney is the plaintiff or
defendant. (Sec. 17)
Failure to appear:
1. If plaintiff fails to appear – it shall be a cause for
dismissal without prejudice. Defendant present
 shall be entitled to judgment on permissive
counterclaim.
2. If defendant fails to appear – same effect as
failure to file Response.
HEARING; DUTY OF THE JUDGE
At the beginning of the court session, the judge shall read
aloud a short statement explaining the nature, purpose
and the rule of procedure of small claims cases. (Sec. 20)
At the hearing, the judge shall conduct JDR through
mediation, conciliation, early neutral evaluation, or any
other mode of JDR. (Sec. 21)
If JDR fails and the parties agree in writing that the
hearing of the case shall be presided over by the judge
who conducted the JDR, the hearing shall so proceed in an
informal and expeditious manner and terminated within
one (1) day. (Sec. 22)
Absent such agreement
1. In case of a multi-sala court , the case shall, on the
same day, be transmitted to the Office of the
Clerk of Court for immediate referral by the
Executive Judge to the pairing judge for hearing
and decision within five (5) working days from
referral; and
2. In case of single sala court, the pairing judge shall
hear and decide the case in the court of origin
within five (5) working days from referral by the
JDR judge.
FINALITY OF JUDGMENT
After the hearing, the court shall render its decision on
the same day, based on the facts established by the
evidence.
The decision shall immediately be entered by the Clerk of
Court in the court docket for civil cases and a copy thereof
forthwith served on the parties.
The decision shall be final and unappealable. (Sec. 23)
166
EFFICIENT USE OF PAPER RULE (A.M. No. 11-
9-4-SC)
FORMAT AND STYLE
All pleadings, motions and similar papers intended for the
court and quasi-judicial body’s consideration and action
(court-bound papers) shall:
1. Be written in single space with one-and-a –half
space between paragraphs,
2. Use an easily readable font style of the party’s
choice, of 14-size font, and on a 13 –inch by 8.5-
inch white bond paper
All decisions, resolutions and orders issued by courts and
quasi-judicial bodies under the administrative
supervision of the Supreme Court shall comply with these
requirements. Similarly covered are the reports
submitted to the courts and transcripts of stenographic
notes.
MARGINS AND PRINTS
The parties shall maintain the following margins on all
court-bound papers:
1. Left hand margin of 1.5 inches from the edge;
2. Upper margin of 1.2 inches from the edge;
3. Right hand margin of 1.0 inch from the edge;
4. Lower margin of 1.0 inch from the edge.
Every page must be consecutively numbered.
COPIES TO BE FILED
Unless otherwise directed by the court, the number of
court- bound papers that a party is required or desires to
file shall be as follows:
In the Supreme Court,
1. One original (properly marked) and 4 copies
2. Two sets of annexes, one attached to the original
and an extra copy
If the case is referred to the Court En Banc:
a. Parties shall file 10 additional copies.
b. For the En Banc, the parties need to submit
only 2 sets of annexes, one attached to the
original and an extra copy.
All members of the Court shall share the extra
copies of annexes in the interest of economy of
paper.
In the Court of Appeals and the Sandiganbayan,
1. One original (properly marked) and
2. Two copies with their annexes;
In the Court of Tax Appeals,
1. One original (properly marked) and
2. 2 copies with annexes
On appeal to the En Banc:
a. One Original (properly marked)
 b. 8 copies with annexes; and

In other courts,
1. One original (properly marked)
2. With the stated annexes attached to it.

ANNEXES SERVED ON ADVERSE PARTY

A party required by the rules to serve a copy of his court-

bound on the adverse party need not enclose copies of
those annexes that based on the record of the court such
party already has in his possession.

In the event a party requests a set of the annexes actually

filed with the court, the part who filed the paper shall
comply with the request within five days from receipt.

APPLICABILITY

This Rule applies to all courts and quasi-judicial bodies

under the administrative supervision of the Supreme
Court.

END OF CIVPRO!!!

167