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Civpro Reviewer [Justice de Leon]. Finals.

by Butch Ramiro 2C

1. RULE MAKING POWER OF THE SC: of that discretion absent grave abuse or palpable error. Section 6, Rule 1 of
the 1997 Rules of Civil Procedure even mandates a liberal construction of
Art 8 Sec 5(5) of the Consti: the rules to promote their objectives of securing a just, speedy, and
inexpensive disposition of every action and proceeding.
 Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in: 5. PROCEDURAL RULES THAT PARTIES MAY CHANGE
o All courts
o The admission to the practice of law a. Venue (may be agreed upon by the parties)
o The Integrated Bar b. Court’s discretion in the interest of substantial justice
o And Legal assistance to the underprivileged c. Waiver
 Guidelines on the rules:
o They must provide a simplified and speedy disposition of cases 6. JURISDICTION
o The rules shall be uniform for all courts of the same grade
o The rules shall not diminish, increase, or modify substantive rights Jurisdiction: Capacity or power conferred by the Constitution or law to a court or
 These powers may not be reduced by Congress but Congress may add more tribunal to entertain, hear and determine controversies and render judgment
thereon.
Art 6 Sec 30 of the Consti:
How is jurisdiction acquired?
 No law shall be passed increasing the appellate jurisdiction of the SC as
provided in this Constitution without its advice and concurrence OVER Acquired by the filing of the complaint, petition or
PLAINTIFF/PETITIONER initiatory pleading before the court by the plaintiff or
2. PROCEDURAL AND SUBSTANTIVE petitioner.
OVER 1. Voluntary appearance
Procedural and Substantive Rules DEFENDANT/RESPONDENT 2. Submission by the defendant to the court
3. Coercive process issued by the court (summons)
 Procedural law: the body of legal rules that govern the process for OVER SUBJECT MATTER Conferred by law
determining the rights of parties OVER THE ISSUES 1. Determined by the pleadings
 Substantive law: body of rules that determine the rights and obligations of 2. Determined by agreement in a pre-trial
persons order/stipulation
3. Implied consent: failure of a party to object to
evidence on an issue not covered by the pleadings
3. FORCE AND EFFECT OF RULES OF COURT
OVER THE RES (PROPERTY Acquired by actual/constructive seizure by the court of
WHICH IS THE SUBJECT OF the thing e.g. attachment, garnishment, provision of law
Rules of Courts, promulgated by authority of law, have the force and effect of
LITIGATION) (like in land registration proceedings)
law; and rules of court prescribing the time within which certain acts must be done,
or certain proceedings taken are considered absolutely indispensable to the
prevention of needless delays and to the orderly and speedy discharge of 7. ESTOPPEL TO DENY JURISDICTION
judicial business. (Shioji vs. Harvey, 43 Phil., 333)
Hinog v. Melicor: Party motioned to serve a supplemental pleading. It was
4. POWER OF THE SC TO SUSPEND RULES OF COURT considered as seeking affirmative relief from the courts.

 If a party invokes the jurisdiction of a court, he cannot thereafter


Nonetheless, it is also true that procedural rules are mere tools designed to
challenge the court’s jurisdiction in the same case because of estoppel.
facilitate the attainment of justice. Their strict and rigid application should be
relaxed when they hinder rather than promote substantial justice. Public policy
dictates that court cases should, as much as possible, be resolved on the 8. JURISDICTION IS DETERMINED A T THE TIME OF FILING ACTION
merits not on mere technicalities. Substantive justice trumps procedural rules
WHEN IS A CIVIL By the filing of the original complaint in court
It is within the court's sound discretion to relax procedural rules in order to fully ACTION
adjudicate the merits of a case. This Court will not interfere with the exercise COMMENCED?
WHAT IF AN The action is commenced with regard to him on the date of the
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

ADDITIONAL filing of the later pleading 1. RTC


DEFENDANT IS 2. Quasi judicial agencies, instrumentalities, boards or
IMPLEADED IN A This is irrespective of whether the motion for its admission, if commissions, SEC, Social Security Commission,
LATER PLEADING? necessary, is denied. the Employees' Compensation Commission and the
Civil Service Commission
People v. Cawaling
RTC:
 Once the court acquires jurisdiction, it may not be ousted from the case by a
new law placing such proceedings under the jurisdiction of another tribunal Exclusive original 1. Civil actions in which the subject of litigation is
o Exceptions: jurisdiction incapable of pecuniary estimation (e.g. specific
 An express provision in the statute performance, support, rescission)
 The statute is clearly intended to apply to actions pending 2. Civil actions which involved the title to or possession
before its enactment of real property or any interest therein (e.g. accion
publiciana) NOTE: unlawful detainer and forcible entry
9. COURTS jurisdiction with MTC
a. Metro Manila: assessed value of property
Art 8 Sec 1: exceeding 50,000
b. Outside MM: assessed value of property
exceeding 20,000
The judicial power shall be vested in one Supreme Court and in such lower courts
3. All actions of admiralty and maritime jurisdiction
as may be established by law.
a. MM: demand or claim exceeds 400k
b. Outside MM: exceeds 300k
Judicial power:
4. All matters of probate (testate/intestate)
 Includes the duty of the courts of justice to settle actual controversies involving
a. MM: gross value of estate exceeds 400k
rights which are legally demandable and enforceable
b. Outside MM: exceeds 300k
 To determine whether or not there has been a grave abuse of discretion
5. In all actions involving the contract of marriage/martial
amounting to lack or excess of jurisdiction on the part of any branch or
relations (Family courts are RTCs: see below)
instrumentality of the Government
6. In all cases not within the exclusive jurisdiction of
any court, tribunal, person or body exercising
BP 129: Pertinent Provisions:
judicial/qj functions
7. In all civil actions and special proceedings falling within
CA: the EOJ of a juvenile and domestic relations court and
of the court of agrarian relations as now provided by
law
CA Power: Power to try cases and conduct hearings, receive evidence 8. In all other cases in which the demand (exclusive of
and perform any and all acts necessary to resolve factual interest, damages of whatever kind, atty’s fees,
Note: CA is also a issues raised in cases falling within its original and appellate litigation expenses and costs) OR the value of the
trier of facts. jurisdiction, including the power to grant and conduct new property in controversy (basically if demand or value of
trials or further proceedings. prop exceeds the amounts below)
a. MM: exceeds 400k
Trials or hearings in the Court of Appeals must b. Outside MM: exceeds 300k
be continuous and must be completed within 3 months, Original jurisdiction 1. Issuance of writs of certiorari, prohibitions, mandamus,
unless extended by the CJ quo warranto, habeas corpus and injunction which may
Original Jurisdiction To issue writs of mandamus, prohibition, certiorari, habeas be enforced in any part of their respective regions
corpus, and quo warranto, and auxilliary writs or processes, 2. In actions affecting ambassadors and other public
whether or not in aid of its appellate jurisdiction ministers and consuls
Exclusive original Actions for annulment of judgments of RTCs (Rule 47!) Appellate jurisdiction Over all cases decided by MeTC, MuTC, MCTC in their
jurisdiction respective territorial jurisdictions
Exclusive appellate ALL final judgments, decisions, resolutions, orders or awards
jurisdiction of

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial 2. Petitions for guardianship, custody of children, habeas
Courts shall exercise: corpus in relation to the latter;
3. Petitions for adoption of children and the revocation
Exclusive Original 1. Civil actions and probate proceedings + grant of thereof;
Jurisdiction provisional remedies in proper cases 4. Complaints for annulment of marriage, declaration of
a. MM: value of the personal property or nullity of marriage and those relating to marital status
estate or the amount of demand does not and property relations of husband and wife or those
exceed 400k living together under different status and agreements,
b. Outside MM: value of the personal property and petitions for dissolution of conjugal partnership of
or estate or the amount of demand does gains;
not exceed 300k 5. Petitions for support and/or acknowledgment;
Note: interest, damages, atty’s fees, litigations expenses 6. Summary judicial proceedings brought under the
and costs are NOT included in the determination of provisions of Executive Order No. 209, otherwise known
jurisdiction but are INCLUDED in the determination of filing as the "Family Code of the Philippines";
fees 7. Petitions for declaration of status of children as
abandoned, dependent o neglected children, petitions
2. Cases of forcible entry and unlawful detainer for voluntary or involuntary commitment of children;
the suspension, termination, or restoration of parental
Note: when defendant raises questions of ownership in his authority and other cases cognizable under Presidential
pleadings and the question of possession cannot be resolved Decree No. 603, Executive Order No. 56, (Series of
w/o deciding the issue of ownership, the issue of ownership 1986), and other related laws;
shall be resolved ONLY to determine the issue of possession 8. Petitions for the constitution of the family home;
9. Cases against minors cognizable under the Dangerous
3. Civil actions which involved the title to or possession Drugs Act, as amended;
of real property or any interest therein 10. Violations of Republic Act No. 7610, otherwise known as
a. MM: assessed value does not exceed 50k the "Special Protection of Children Against Child Abuse,
b. Outside MM: assessed value does not exceed Exploitation and Discrimination Act," as amended by
20k Republic Act No. 7658; and
11. Cases of domestic violence against:
Note: Exclusive of interest, damages of whatever kind, a. Women - which are acts of gender based
atty’s fees, litigation expenses and costs violence that results, or are likely to result in
physical, sexual or psychological harm or
Note: In case of land not declared for tax purposes, the suffering to women; and other forms of
value of the property shall be determined by the assessed physical abuse such as battering or threats and
value of the adjacent lots. coercion which violate a woman's personhood,
integrity and freedom movement; and
b. Children - which include the commission of all
Family Courts: forms of abuse, neglect, cruelty, exploitation,
violence, and discrimination and all other
Exclusive original 1. Criminal cases where one or more of the accused is conditions prejudicial to their development.
jurisdiction below eighteen (18) years of age but not less than nine
(9) years of age but not less than nine (9) years of age
or where one or more of the victims is a minor at the
time of the commission of the offense: Provided, That if
the minor is found guilty, the court shall promulgate
sentence and ascertain any civil liability which the
accused may have incurred. The sentence, however, Sandiganbayan:
shall be suspended without need of application pursuant
to Presidential Decree No. 603, otherwise known as the A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
"Child and Youth Welfare Code"; graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Sec. 2, Title

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

VII, Book II of the Revised Penal Code, where one or more of the accused are committed by the public officials and employees mentioned in Sec. a of this Sec. in
officials occupying the following positions in the government whether in a relation to their office.
permanent, acting or interim capacity, at the time of the commission of the
offense: C. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986.
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade '27' and higher, of the  In cases where none of the accused are occupying positions corresponding to
Compensation and Position Classification Act of 1989 (Republic Act No. salary grade '27' or higher, as prescribed in the said Republic Act No. 6758, or
6758), specifically including: military or PNP officers mentioned above, exclusive original jurisdiction thereof
shall be vested in the proper regional trial court, metropolitan trial court,
"(a) Provincial governors, vice-governors, members of the municipal trial court and municipal circuit trial court ' as the case may be,
sangguniang panlalawigan and provincial treasurers, assessors, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg.
engineers and other provincial department heads; 129, as amended.
 "The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
"(b) City mayors, vice-mayors, members of the sangguniang judgments, resolutions or orders or regional trial courts whether in the exercise
panlungsod, city treasurers, assessors engineers and other city of their own original jurisdiction or of their appellate jurisdiction as herein
department heads; provided.
 "The Sandiganbayan shall have exclusive original jurisdiction over petitions for
"(c) Officials of the diplomatic service occupying the position of the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus,
consul and higher; injunctions, and other ancillary writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature, including quo warranto, arising
"(d) Philippine army and air force colonels, naval captains, and all or that may arise in cases filed or which may be filed under Executive Order
officers of higher rank; Nos. 1,2,14 and 14-A, issued in 1986: Provided, That the jurisdiction over these
petitions shall not be exclusive of the Supreme Court.
"(e) Officers of the Philippine National Police while occupying the  The procedure prescribed in Batas Pambansa Blg. 129, as well as the
position of provincial director and those holding the rank of senior implementing rules that the Supreme Court has promulgated and may
superintendent or higher;  hereafter promulgate, relative to appeals/petitions for review to the Court of
Appeals, shall apply to appeals and petitions for review filed with the
"(f) City and provincial prosecutors and their assistants, and Sandiganbayan. In all cases elevated to the Sandiganbayan and from the
officials and prosecutors in the Office of the Ombudsman and Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through
special prosecutor; its special prosecutor, shall represent the People of the Philippines, except in
cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
"(g) Presidents, directors or trustees, or managers of  In case private individuals are charged as co-principals, accomplices or
government-owned or -controlled corporations, state universities accessories with the public officers or employees, including those employed in
or educational institutions or foundations; govemment-owned or controlled corporations, they shall be tried jointly with
said public officers and employees in the proper courts which shall exercise
(2) Members of Congress and officials thereof classified as Grade'27'and up exclusive jurisdiction over them.
under the Compensation and Position Classification Act of 1989;  Any provisions of law or Rules of Court to the contrary notwithstanding, the
criminal action and the corresponding civil action for the recovery of civil
(3) Members of the judiciary without prejudice to the provisions of the liability shall at all times be simultaneously instituted with, and jointly
Constitution; determined in, the same proceeding by the Sandiganbayan or the appropriate
courts, the filing of the criminal action being deemed to necessarily carry with it
(4) Chairmen and members of Constitutional Commissions, without the filing of the civil action, and no right to reserve the filing of such civil action
prejudice to the provisions of the Constitution; and separately from the criminal action shall be recognized: Provided, however,
That where the civil action had therefore been filed separately but judgment
(5) All other national and local officials classified as Grade'27'and higher therein has not yet been rendered, and the criminal case is hereafter filed with
under the Compensation and Position Classification Act of 1989. the Sandiganbayan or the appropriate court, said civil action shall be
transferred to the Sandiganbayan or the appropriate court, as the case may be,
B. Other offenses or felonies whether simple or complexed with other crimes for consolidation and joint determination with the criminal action, otherwise the
separate civil action shall be deemed abandoned."

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

 The extent of the authority of CSC to review decision of the MSPB is now a
Quasi Judicial Bodies settled manner. Under Sec 47, EO 292, CSC shall decide on appeal all
administrative cases involving the imposition of:
SEC: Securities and Exchange Commission 1. A penalty of suspension for more than 30 days
2. Fine in an amount exceeding 30 days salary
Section 5. Powers and Functions of the Commission.– 3. Demotion in rank or salary or transfer
4. Removal or dismissal from office
5.1. The commission shall act with transparency and shall have the powers and  Settled is the rule that a tribunal, board or officer exercising judicial functions
functions provided by this code, Presidential Decree No. 902-A, the Corporation acts without jurisdiction if no authority has been conferred by law to hear and
Code, the Investment Houses law, the Financing Company Act and other existing decide the case.
laws. Pursuant thereto the Commission shall have, among others, the following
powers and functions: HLURB: House and Land Use Regulatory Board
(a) Have jurisdiction and supervision over all corporations, partnership or
associations who are the grantees of primary franchises and/or a license or Sandoval vs. Cañeba
a permit issued by the Government;
 the National Housing Authority (NHA), now known as House and Land
(l) Issue subpoena duces tecum and summon witnesses to appear in any Use Regulatory Board (HLURB), it has exclusive jurisdiction to hear and
proceedings of the Commission and in appropriate cases, order the decide a complaint for collection of unpaid installments against a
examination, search and seizure of all documents, papers, files and subdivision lot buyer, not the regular courts.
records, tax returns and books of accounts of any entity or person under
investigation as may be necessary for the proper disposition of the cases 10. KINDS OF ACTION
before it, subject to the provisions of existing laws;
As to CAUSE OF ACTION: -> Important in determining venue
(n) Exercise such other powers as may be provided by law as well as those
which may be implied from, or which are necessary or incidental to the Real Action An action affecting title to, possession of and interest in real
carrying out of, the express powers granted the Commission to achieve the property
objectives and purposes of these laws.
VENUE: place where the property lies
5.2. The Commission’s jurisdiction over all cases enumerated under section 5 of
Personal Action Brought for
Presidential Decree No. 902-A is hereby transferred to the Courts of general 1. recovery of personal property
jurisdiction or the appropriate Regional Trial Court:Provided, That the
2. for the enforcement of some contract or recovery of
Supreme Court in the exercise of its authority may designate the Regional Trial damages for its breach
Court branches that shall exercise jurisdiction over the cases. The
3. for the recovery of damages for the commission of
Commission shall retain jurisdiction over pending cases involving intra- an injury to the person or property
corporate disputes submitted for final resolution which should be resolved
within one (1) year from the enactment of this Code. The Commission shall VENUE:
retain jurisdiction over pending suspension of payment/rehabilitation
cases filed as of 30 June 2000 until finally disposed. 1. place where the plaintiff or any of the principal
plaintiffs resides
2. the defendant or any of the principal defendants
resides, at the election of the plaintiff

CSC:
As to the OBJECT -> Important in determining how one will be served summons
Magpale, Jr vs. Civil Service Commission
Action in Rem An action against the thing itself
Judgment is binding against the whole world
Example: Accion Publiciana, Land registration proceedings
Action in An action against a particular person on the basis of his
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Personam personal liability  EX: However, its non-payment at the time of filing does not automatically
cause the dismissal as long as the fee is paid within the applicable reglementary
Jurisdiction over the defendant (and SM) is necessary period

Example: Collection case Sun Insurance Office, Ltd (SIOL) vs. Asuncion

Action quasi in An individual is named as defendant, and the purpose of  Permissive counter-claims, third-party claims and the like shall not be
rem the proceeding is to subject his interest therein to the considered filed until and unless the prescribed filing fee is paid. When the
obligation or lien burdening the property judgment of the courts awards a claim not specified in the pleading, the
additional filing fee shall constitute a lien on the judgment.
However, jurisdiction over the defendant is NOT required to  In the case at bar, a more liberal interpretation of the rules is called for
confer jurisdiction over the court as lonjg as the court acquires considering Tiong demonstrated his willingness to abide by the rules
jurisdiction over the thing itself. and pay the additional docket fees

Example: Proceeding where the sole object is the sale of the 13. CAUSE OF ACTION: RULE 2
property of the defendant by attachment, foreclosure, etc. The
judgment entered in these proceedings is binding only Rule 2
between the parties. Also, quieting of title.
Cause of Action A cause of action is the act or omission by which a party
11. COMMENCEMENT OF ACTION: CONDITION PRECEDENT violates a right of another
Elements of 1. a right in favor of the plaintiff by whatever means and
Lumbuan v. Ronquillo cause of action under whatever law it arises or is created;
2. an obligation on the part of the named defendant to
 The prime objective of the Katarungnang Pambarangay Rules is to reduce the Right, Obligation respect or not to violate such right; and
number of court litigations to respect right, 3. an act or omission on the part of such defendant in
 In this case, the Lupon/Pangkat Chairman and Lupon/Pangkat Secretary signed Violation of right violation of the right of the plaintiff or constituting a
the Certificate to File Action stating that no settlement was reached by the breach of the obligation of the defendant to the
parties. plaintiff for which the latter may maintain an action
 While admittedly no pangkat was constituted, it was not denied that the for recovery of damages.
parties met at the office of the Barangay Chairman for possible SPLITTING a A party mat not institute more than one suit for a single cause
settlement. cause of action of action
o The efforts of the Barangay Chairman, however, proved futile as Effects of The filing of one or a judgment upon merits in any one is
no agreement was reached. Although no pangkat was formed SPLITTING available as a ground for the dismissal of the others
o There was substantial compliance with the law.
o It is noteworthy that under the aforequoted provision, the Rule 16: MTD:
confrontation before the Lupon Chairman or the pangkat is sufficient
compliance with the precondition for filing the case in court a. Bar by prior judgment (RES JUDICATA)
b. Another action pending between the same parties for
the same cause (LITIS PENDENTIA)
JOINDER of A party may in one pleading assert, in the alternative or
CAUSES of otherwise, as many causes of action as he may have against an
ACTION opposing party subject to the following conditions:

12. COMMENCEMENT OF ACTION: PAYMENT OF FILING FEE 1. The party joining the causes of action shall comply with the
rules on joinder of parties;
Hinog v. Melicor (reiterating Sun Insurance) 2. The joinder shall not include special civil actions or actions
governed by special rules;
 GR: Payment of the prescribed docket fee is a jurisdictional requirement 3. Where the causes of action are between the same
parties but pertain to different venues or

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

jurisdictions, the joinder may be allowed in the  C occupied a parcel of land and used it as his fishpond. T allegedly forcibly
Regional Trial Court provided one of the causes of entered the premises. After dispossessing C, T carted away a lot of fish and
action falls within the jurisdiction of said court and even defaced the chapel in the premises.
the venue lies therein  C filed with the MTC a complaint for forcible entry. Also, C filed a complaint for
4. Where the claims in all the causes of action are principally damages in the RTC alleging that the intrusion caused him damage
for recovery of money, the aggregate amount claimed
shall be the test of jurisdiction Issue: Can C independently file a case for damages in the RTC for acts that were
Effect of In this situation, there are actually two causes of action which done by T after C was disposed? YES.
MISJOINDER of were mistakenly joined.
causes of action  This is because the recoverable damages in forcible entry and detainer
Remedy: On motion of a party or in the court’s initiative, the cases refer to rents of the reasonable compensation for the use and
misjoined cause of action may be severed and proceeded with occupation of the premises.
separately  The only form of damages that may be recovered in a forcible entry action is
the fair rental value or the reasonable compensation for the use and
Joseph v. Bautista: One injury = One cause of action occupation of the properties
 In this case, C’s claim for damages have no direct relation to the loss of
 It is true that a single act or omission can be violative of various rights at the possession of the premises because it had to do with T’s alleged harvesting and
same time. carting away several tons of milkfish in the fishponds, the destruction of the
 However, when there is only one delict or wrong, there is but a single cause of chapel AFTER the act of dispossession
action regardless of the number of rights that may have been violated  There was no splitting of a cause of action in this case.
belonging to one person
 The singleness of a cause of action lies in the singleness of the delict or wrong Uniwide Holdings, Inc vs Cruz
vilating the rights of one person.
 In the case at bar, there is no question that Joseph sustained a single injury on  U, doing business in PARANAQUE, entered into a franchise agreement with C,
his person AND that vested him a single cause of action, even with the wherein C was granted a 5 year franchise agreement. In the agreement, it was
correlative rights of action against the different respondents stipulated that QC will be the venue of any action involving the agreement.
 C bought goods from A. A assigned this receivable back to U. C failed to pay
Progressive v. CA: certain fees arising from the franchise agreement with U and arising from its
transaction with A.
 P leased to W a parcel of land. W failed to pay rentals so P repossessed the  In response, U filed a case in RTC Paranaque to collect both on the transaction
leased premises. W then filed a complaint against P for forcible entry in the arising from the FRANCHISE AGREEMENT and on the receivable that was
MeTC. In the MeTC, the parties compromised and agreed that W would pay. W ASSIGNED to it. C filed a MTD claiming that the courts of QC had exclusive
didn’t pay but it still filed an action for damages in the RTC against P. jurisdiction as per the agreement.

Issue: Should an action for damages filed with the RTC by the lessee against the Issue: Should the case be dismissed on the ground of improper venue? NO
lessor be dismissed on the ground of the pendency of another action of forcible
entry with damages with the MeTC? YES  There are two causes of action here. One is U’s cause of action arising from C’s
breach of the franchise agreement. The second is U’s cause of action arising
 The RoC clearly provides that no claim for damages arising out of forcible from the receivable that A assigned to it.
entry or unlawful detainer may be filed separately and independently of  In this case, Rule 2 Sec 5 was applied to wit: Where the causes of action are
the claim for restoration of possession between the same parties but pertain to different venues or jurisdictions, the
 More importantly, the restoration of possession and demand for actual joinder may be allowed in the Regional Trial Court provided one of the causes
damages in the MeTC and the demand from the RTC both arise from the of action falls within the jurisdiction of said court and the venue lies therein
same cause of action namely: the forcible entry of P into the leased  This is PRECISELY what happened: cause of action 1 pertains to QC as per the
premises venue agreement, cause of action 2 is covered by the general rule on venue:
 Basically, the damages case was also based on the forcible entry, which was place where the plaintiff resides. U was in its right to file the case in the RTC
W’s only cause of action. It was split so it was indeed a ground for dismissal. Paranaque (The joinder is allowed in this case)

CGR Corporation v. Treyes

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

14. TOTALITY RULE: PERMISSIVE JOINDER OF PARTIES

Flores v. Mallare-Phillips (Made it conform to the present figures)

 On Jan 2, in MM, A bought 154k worth of plastic from M. On Jan 3, B bought


255k worth of plastic from M. A and B refused to pay. M then filed a case
against A and B (they were joined) in the RTC. M’s argument: totality of his
claims = 409k so its within RTC jurisdiction.
 A and B filed a motion to dismiss on the ground of RTC’s lack of jurisdiction,
alleging that the totality rule is inapplicable.

Issue: Does the RTC have jurisdiction? NO

 A and B’s joinder was merely permissive.


 To apply the totality rule: Requisites:
1. The cause of action in favor of a plaintiff against two or more
defendants must arise out of the SAME TRANSACTION/SERIES of
TRANSACTIONS
2. There must be a COMMON QUESTION OF LAW ANF FACT
 In this case, M’s claim against A and B are borne out of separate transactions
so RTC did not have jurisdiction.
 Othewise put: where a claim in all causes of action in one pleading are
PRINCIPALLY for the recovery of money, the aggregate amount claimed shall be
the test of jurisdiction, but the requisites must be fulfilled in case it is
against two or more defendants
 HOWEVER when one plaintiff sues one defendant and it is principally for
recovery of money, even if he has 10 causes of action, the totality of the claims
the determining factor in jurisdiction.

Exercise:

a. A has a 299k money claim against B. In his complaint, A also asked for
1M in damages. Where should it be filed?
i. Answer: MTC. This is because the money claim is the main
of cause of action
b. In Greenhills, D bought an ipod from F for 20k. D then bought an LCD
TV worth 200k from F. D again bought a computer for 300k from F. D
failed to pay. Where should F file his collection case?
i. Answer: RTC. This is because the aggregate amount claimed
is the test of jurisdiction. Amount: 520k. It does not matter
that it arose from the same transaction in this case.

PARTIES TO A CIVIL ACTION: RULE

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

PARTIES TO A CIVIL ACTION o In fact, they admitted that they did not seek affirmative relief from
COA. They clearly have no standing
WHO MAY BE PARTIES 1. Natural Person
o As the incumbent COA officers, it was held that they were not demoted
IN A CIVIL ACTION? 2. Juridical person (corporations, parts, State and its
political subdivisions)
3. Entity authorized by law 7. REPRESENTATIVE PARTIES
WHO IS CONSIDERED 1. Claiming party
THE PLAINTIFF? 2. Counter-claimant REPRESENTATIVE Where the action is allowed to be prosecuted or defended by a
3. Cross-claimant PARTIES representative or someone acting in a fiduciary capacity
4. Third party plaintiff
THE DEFENDANT? 1. Original defending party The beneficiary shall be included in the title of the case and
2. Defendant in counterclaim shall be deemed the real party in interest
3. Cross-defendant WHO IS A 1. Trustee of express trust
4. Third party defendant REPRESENTATIVE? 2. Guardian
3. Executor/Administrator
5. REAL PARTY IN INTEREST 4. Party authorized by law/these rules
5. Agent acting in his own name and for the benefit of an
undisclosed principal
 A real party in interest is the party who stands to be benefited or injured by
a. Except when the contract involves thing belonging
the judgment in the suit
to the principal
o The party entitled to the avails of the suit
 General Rule: Every action must be prosecuted or defended in the name of
Oposa v. Factoran
the real party in interest
o Exception: Unless provided by law or these rules
 The plaintiffs in this case are all minors duly represented and jointed by their
respective parents and the defendant is Sec Alcala of the DENR
6. PERSONALITY OR STANDING TO SUE o They also claim to represent their generation as well as generation yet
unborn
Evangelista v. Santiago: A was considered to lack personality to file action for  In this class suit, they pray for the DENR to cancel all existing timber license
quieting of title because he had no legal or equitable title to the subject property agreements in the country and as their cause of action, they cite the
Constitution recognizing the right of the people to a balanced and healthful
Domingo v. Carague ecology
 The DENR Sec argues that the plaintiffs have no standing
 The petitioners in this case assail the legality of a resolution of the Commission
on Audit providing for Organizational Restructuring Plan for being void and Issue: Do the plaintiffs have standing?
lacking an enabling law.
 Petitioners Domingo and others are retired Chairmen/Commissioners of the  The SC ruled that the civil case was indeed a class suit because the subject
COA and they are assailing the resolution as concerned taxpayers matter of the complaint is of common and general interest to all citizens of the
 Co-petitioners Matib and Sanchez are incumbent officers of the COA. They Philippines
allege that they were divested of their designations and ranks and subsequently  Doctrine: The SC also ruled that the plaintiffs are within their right to file a
caused financial prejudice class suit for their generation and for the succeeding generations
 This is based on the concept of intergenerational responsibility insofar as the
Issue: Do the petitioners have standing to sue? No. right to a balanced and healthful ecology is concerned
 The complaint also has a cause of action for the petitioners detailed that their
 The SC started to discuss the litany of political law cases wherein they held that right to a balanced and healthful ecology was/is clearly violated by the TLAs
the petitioners in these various cases had standing to sue based on their
constitutional rights (Chavez v. PEA) and that they had direct and substantial Sec 4: Spouses as parties: Husband and wife shall sue or be sued jointly, except
interests to protect as provided by law
 In this case, petitioners (the retired/former COA officers) have no shown any Sec 5: Minor/Incompetents: A minor or a person alleged to be incompetent may
direct and personal interest in the COA restructuring plan because there sue or be sued, with the assistance of his father, mother, guardian or guardian ad
is no showing that they have sustained or are in imminent danger of sustaining litem.
some direct injury as a result of the implementation of the plan
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

(a) the right to relief arises out of the same transaction or series of transactions;
8. INDISPENSABLE PARTIES AND NECESSARY PARTIES
(b) there is a question of law or fact common to all the plaintiffs or defendants; and
INDISPENSABLE PARTY NECESSARY PARTY
(c) such joinder is not otherwise proscribed by the provisions of the Rules on
jurisdiction and venue
Definition One whose interest will be One who is not indispensable
affected by the court’s action in but ought to be joined as a
the litigation, and without whom party if complete relief is 10. EFFECTS OF MISJOINDER AND NON-JOINDER OF PARTIES
no final determination of the case to be accorded as those
can be had. They have to be already parties, or for a Sec 11: Misjoinder and non-joinder of parties:
included complete
determination/settlement  Neither misjoinder nor non-joinder of parties is ground for dismissal of an
of the claim subject of the action.
action  Parties may be dropped or added by order of the court on motion of any party
Effect if not The absence of an indispensable The court can still validly or on its own initiative at any stage of the aftion and on such terms as are just
included party renders all subsequent proceed even in the absence  Any claim against a misjoined party may be severed and proceeded with
actions of the court null and void. of a necessary part separately

HOWEVER Non-joinder of 11. CLASS SUITS


indispensable parties is NOT a
ground for dismissal because
parties may be added upon order Elements of 1. That the subject matter of the controversy be one of
of the court or upon motion at Class suit common or general interest to many persons
ANY STAGE of the proceedings 2. That such persons be so numerous as to make it
impracticable to bring them all to court
Remedy The remedy in a case of non- Implead the proper party!
joinder of an indispensable party
is to implead the non-party
claimed to be indispensable. Mathay v. Consolidated Bank

This has the curing effect.  An action does become a class suit merely because it is designated as such for
it depends on the attending facts and the complaint
 In this case, the complaint did not state the number of said CMI subscribing
stockholders so that the trial court could not infer that the parties actually
9. PERMISSIVE JOINDER OF PARTIES before it were sufficiently numerous and representative
 Further, each one of the appellants and the CMI stockholders had
Sec 6: Permissive Joinder of Parties: determinable interest for each one had a right only to his respective
portion of the stocks. Not one of them had any right to the stock to which
All persons in whom or against whom any right to relief in respect to or another was entitled.
arising out of the same transaction or series of transactions is alleged to  Also, ―separate wrongs to separate persons” although committed by
exist, whether jointly, severally or in the alternative, may, except as otherwise similar means and even pursuant to a single plan do not create a
provided in these rules, join as plaintiffs or be joined as defendants in one general interest as to entitle them to a class suit.
complaint, where any question of law or fact common to all such plaintiffs,
or to all such defendants may arise in such action
12. DEFENDANTS
But the court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with any
Sec. 10. Unwilling co-plaintiff.
proceedings in which he may have no interest
If the consent of any party who should be joined as plaintiff cannot be obtained, he
may be made a defendant and the reason therefor shall be stated in the
Permissive joinder of parties requires that: (Regalado Compendium)
complaint.

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Sec. 13. Alternative defendants.


Hinog v. Melicor:
Where the plaintiff is uncertain against who of several persons he is entitled
to relief, he may join any or all of them as defendants in the alternative, although  In this case, it must be remembered that Bertuldo Hinog died and he was
a right to relief against one may be inconsistent with a right of relief substituted by his heirs
against the other.  However, no formal substitution of the parties was effected within 30 days from
Bertuldo’s death as required by the RoC.
Sec. 14. Unknown identity or name of defendant. o This rule on substitution is based on the right to due process. It is
Whenever the identity or name of a defendant is unknown, he may be sued as to ensure that the deceased party would continue to be properly
the unknown owner, heir, devisee, or by such other designation as the case represented in the suit through his duly appointed legal representative
may require; when his identity or true name is discovered, the pleading must be o Non-compliance with the rule on substitution would render the
amended accordingly proceedings infirm because the court acquires no jurisdiction
over the persons of the legal representative on whom the trial
Sec. 15. Entity without juridical personality as defendant. and judgment would be binding

When two or more persons not organized as an entity with juridical De la Cruz v. Joaquin
personality enter into a transaction, they may be sued under the name by
which they are generally or commonly known.  Doctrine: The general rule is that proceedings wherein no substitution is made
upon death of the original party are null and void
In the answer of such defendant, the names and addresses of the persons  Doctrine: However, a formal substitution by heirs is NOT necessary
composing said entity must all be revealed. when they themselves voluntarily appear, participate in the case and
present evidence.
o These actions negate any claim that the right to due process was
violated
 Doctrine: Strictly speaking, the rule on the substitution by heirs is not a
13. DUTY OF COUNSEL WHEN PARTY DIES + EFFECT OF NON-SUBSTITUTION OF
matter of jurisdiction but a requirement of due process. Thus, when due
DECEASED PARTY
process is not violated, as when the right of the representative is protected,
non-compliance or belated formal compliance with the rules cannot affect the
Sec. 16. Death of party; duty of counsel. validity of a promulgated decision.
o Mere failure to substitute for a deceased plaintiff is not a
 Whenever a party to a pending action dies, and the claim is not thereby sufficient ground to nullify a trial court’s decision.
extinguished, it shall be the duty of his counsel to inform the court within  N.B. as compared with the Hinog ruling, I think the SC wants to reiterate that
thirty (30) days after such death of the fact thereof, and to give the the rule on substitution is for the deceased party. Whether or not right to due
name and address of his legal representative or representatives. process was violated. Depends on the case.
 Failure of counsel to comply with this duty shall be a ground for disciplinary
action. Limbauan v. Acosta
 The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or  It is well settled that the failure of counsel to comply with his duty under
administrator and the court may appoint a guardian ad litem for the minor Section 16 to inform the court of the death of his client and no substitution of
heirs. such party is effected, will not invalidate the proceedings and the
 The court shall forthwith order said legal representative or representatives to judgment thereon if the action survives the death of such party.
appear and be substituted within a period of thirty (30) days from notice.
 If no legal representative is named by the counsel for the deceased 14. OTHERS: ROUNDING OUT RULE 3
party, or if the one so named shall fail to appear within the specified
period, the court may order the opposing party, within a specified time,
Sec. 17. Death or separation of a party who is a public officer.
to procure the appointment of an executor or administrator for the
estate of the deceased and the latter shall immediately appear for and
 When a public officer is a party in an action in his official capacity and
on behalf of the deceased.
during its pendency dies, resigns, or otherwise ceases to hold office,
 The court charges in procuring such appointment, if defrayed by the opposing
party, may be recovered as costs.

11
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

o The action may be continued and maintained by or against his  Such authority shall include an exemption from payment of docket and
successor IF within thirty (30) days after the successor takes office other lawful fees, and of transcripts of stenographic notes which the court
or such time as may be granted by the court, may order to be furnished him.
 It is satisfactorily shown to the court by any party that: o The amount of the docket and other lawful fees which the indigent was
 there is a substantial need for continuing or exempted from paying shall be a lien on any judgment rendered in
maintaining it AND the case favorable to the indigent, unless the court otherwise
 that the successor adopts or continues or provides.
threatens to adopt or continue the action of his  Any adverse party may contest the grant of such authority at any time before
predecessor. judgment is rendered by the trial court.
 Before a substitution is made, the party or officer to be affected shall be  If the court should determine after hearing that the party declared as an
given reasonable notice of the application therefor and accorded an indigent is in fact a person with sufficient income or property, the proper docket
opportunity to be heard. and other lawful fees shall be assessed and collected by the clerk of court.
o unless the party/officer affected assents to the substitution  If payment is not made within the time fixed by the court, execution shall issue
for the payment thereof, without prejudice to such other sanctions as the court
Sec. 18. Incompetency or incapacity Keyword: The action may be allowed to may impose.
continue
Sec. 22. Notice to the Solicitor General.
 If a party becomes incompetent or incapacitated,
o The court, upon motion with notice, may allow the action to be  In any action involving the validity of any treaty, law, ordinance, executive
continued by or against the incompetent or incapacitated order, presidential decree, rules or regulations,
person assisted by his legal guardian or guardian ad litem. o The court, in its discretion, may require the appearance of the
Solicitor General who may be heard in person or through a
Sec. 19. Transfer of interest Keyword: The action may be continued against the representative duly designated by him.
original party

 In case of any transfer of interest, 15. VENUE: RULE 4


o The action may be continued by or against the original party,
 unless the court upon motion directs the person to
Venue: place where the action is to be commenced/instituted and tried. The place
whom the interest is transferred to be substituted in
of trial and geographical location on which an action should be brought.
the action or joined with the original party.
Jurisdiction Venue
Sec. 20. Action on contractual money claims.
Power and authority of court to hear and Place/Geographic location where the
try the case case is to be tried, the locality or where
 When the action is for recovery of money arising from contract, express or
the suit may be had
implied
Goes into the substance of the case Touches more on the convenience of the
 And the defendant dies before entry of final judgment in the court in which the
parties
action was pending at the time of such death,
o It shall not be dismissed but shall instead be allowed to Jurisdiction over the SM cannot be May be waived and agreed upon
continue until entry of final judgment. waived, only conferred by law AND
 A favorable judgment obtained by the plaintiff therein shall be enforced in the jurisdiction over the nature of the action
manner especially provided in these Rules for prosecuting claims against the is also not waivable
estate of a deceased person.

Sec. 21. Indigent party. Keyword: Court must be satisfied that the party is poor Venue of Actions
REAL PERSONAL: RESIDENCE AGAINST NON-
 A party may be authorized to litigate his action, claim or defense as an AND NOT DOMICILE RESIDENTS
indigent if the court, upon an ex parte application and hearing, is satisfied Court which has 1. Where the plaintiff or 1. commenced and
that the party is one who has no money or property sufficient and available for jurisdiction over the area any of the principal tried in the court
food, shelter and basic necessities for himself and his family. where the property, or a plaintiffs resides of the place
portion thereof is situated 2. Where the defendant/ where the

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

any of the principal plaintiff resides Dacoycoy vs. IAC


defendant resides 2. Where the
(at election of plaintiff) property/any  It also had jurisdiction over Dacoycoy the moment he filed his complaint for
portion thereof is annulment and damages.
found  Dismissing the complaint on the ground of improper venue is not the right
Conditions: course of action, particularly because venue in inferior courts as well as RTC,
may be waived expressly or impliedly.
1. Defendant: non-  Where defendant fails to challenge timely the venue in a motion to dismiss as
resident provided in Sec 4, Rule 4 Rules of Court and allows the trial to be held and a
2. Not found in the decision to be rendered, he cannot appeal or in a special action be permitted to
Philippines challenge belatedly the wrong venue, which is deemed waived.
3. Action affects  So, unless the defendant objects to the venue in a motion to dismiss, the venue
personal status of cannot truly be said to have been improperly laid, as for all intents and
plaintiff purposes, the venue, though technically wrong may be acceptable to the
OR parties.
 The court cannot pre-empt the defendant’s prerogative to object to the
The property of improper laying of the venue by motu proprio dismissing the case, as what
defendant is in the happened in this case
Philippines
These rules are INAPPLICABLE when: Rules Involved:

a. A law/rule provides otherwise Rule 6: Kinds of pleadings


b. Where the parties have validly agreed in writing on the exclusive Rule 7: Parts of a pleading
venue BEFORE the filing of the action Rule 8: Manner of making allegations in pleadings
Rule 9: Effect of Failure to Plead
Diaz vs. Adiong: Improper venue is waivable but it is a ground for dismissal Rule 11: When to File Responsive Pleadings

 Unless and until the defendant objects to the venue in a motion to What is a pleading? (Rule 6, Sec 1)
dismiss prior to a responsive pleading, the venue cannot truly be said
to have been improperly laid. It is a written statement of the respective claims and defenses of the
 In this case, the motion to dismiss was belatedly filed and could no longer parties submitted to the court for appropriate judgment (It’s basically the paper
deprive the court of its jurisdiction. filed to either BEGIN or ANSWER a civil action)
 Well-settled is the rule that improper venue may be waived and such
waiver may occur by laches. What is a motion? (Rule 15, Sec 1)

Legsapi v. Republic On the other hand, a motion is an application for relief other than a pleading.
(Basically, a motion is a request made to the Court for an Order compelling the
 As regards restrictive stipulations on venue, jurisprudence instructs that it must other side to do something or compelling the court to do something)
show that such stipulation is exclusive.
 In the case at bar, the venue is specific (Quezon City) and accompanied by the Where can parties assert their claim? (Rule 6 Sec 2)
words ―the Contractor hereby expressly waiving any other venue‖ which
connotes exclusivity. 1. Complaint (this is the pleading alleging the plaintiff’s cause of action, more on
 The terms clearly stipulate exclusively the venue where action arising from the this below)
Construction Agreement should be filed. 2. Counterclaim
3. Cross-claim
4. Third (fourth) party complaint
16. WAIVER OF IMPROPER VENUE 5. Complaint in intervention

Express Waiver or Implied Waiver What are the parts of the pleading? (Rule 7, Sec 1-5)

13
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

 Caption: Sets forth: forum Forum Shopping:


 The name of the court shopping Undertaking of certification
 Title of the action
 This shall indicate the names of the parties 1. That he has not commenced any action or filed any claim
 HOWEVER in subsequent pleadings, it shall be sufficient if involving the same issues in any court, tribunal or quasi
the name of the first party on each side be stated with an judicial agency and to the best of his knowledge, no such
indication that there are other parties (Juan Cruz et al v. John action or claim is pending therein
Doe et al) 2. If there is such an action/claim, he must completely state its
 Docket # if assigned present status
 Body: Sets forth: 3. If he should learn that the same or similar action or claim has
 The designation of the pleading (is it a complaint, counterclaim etc?) been filed or is pending, he shall report that fact w/in 5 days
 The allegations of the party’s claims or defenses to the court where his complaint or initiatory pleading has
 The relief prayed for been filed
 Date of the pleading
Effect of failure to compl
The RoC sets some guidelines as regards the organization/formatting
FORUM SHOPPING
Paragraphs The allegations in the body must be divided into numbered
paragraphs as to be readily identified Forum As a result of an adverse decision in one forum, or in anticipation
Headings When two or more causes of action are joined, the statement of Shopping: thereof, a party seeks a favorable opinion in another forum
the first shall be prefaced by the words ―first cause of action‖ and through means other than appeal or certiorari
so forth. The same goes for answers. ―answer to first cause of Effect of lack Failure to comply is not curable by mere amendment of the
action‖ of or failure complaint/initiatory pleading.
Relief The pleading shall specify the relief sought and a general prayer to comply
for other relief with the Instead, it is a cause for DISMISSAL of the case without
Dated Every pleading must be dated certification prejudice, unless otherwise provided, upon motion and after
Signature Every pleading must be signed by the party or his counsel, stating hearing (not summary, unlike if it is willful and deliberate)
in either case his address which must not be a post office box
Effect of Indirect contempt of court and possible administrative and
Effect of unsigned pleading: USELESS. No legal effect submission criminal actions
of false
Exception: The court may allow this to be remedied if it shall certification If willful, it is a ground for summary dismissal with
appear that the failure to sign was only due to inadvertence or non- prejudice and shall constitute direct contempt
and not intended for delay compliance
Verification An affiant asserts in an affidavit that he has read the pleading and
that the allegations therein are true and correct based on his
personal knowledge or authentic record

GR: pleadings need not be under oath and verified Rule 8: Manner of making allegations in pleadings
EX: when specifically required by law to be verified ((Petition to
take deposition before action, Petition for certiorari, Prohibition or How are Every pleading shall contain a plain, methodical, plain,
Mandamus, Pleadings in summary procedure, etc: the list is allegations concise and direct statement of the ultimate facts on
comprehensive: made in which the party relies for his claim or defense
http://lawinnovations.wordpress.com/2009/11/19/verifiedpleadin pleadings
gs/ Evidentiary facts should be omitted.

If not verified when required, the pleading can be dismissed out If a defense relied on is based on law, the provisions thereon and
right. their applicability to him shall be clearly and concisely stated.
Certification Required only for the complaint or initiatory pleading Ultimate facts Facts which directly form the basis of the right sought to be
against enforced, or the defense relied upon.
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Capacity Facts showing the capacity of a party to do the following must be Document)
averred: Need to bring When the presence of parties other than those to the original
a. To sue or be sued in new parties action is required for the granting of complete relief in the
b. Authority to sue or be sued in a representative in determination of a counterclaim or cross-claim, the court shall
capacity counterclaim order them to be brought in as defendants, if the court can get
c. Legal existence of an organized association of or cross claim jurisdiction over them.
persons
17. SUBSTANTIAL REQUIREMENTS OF PLEADINGS: THE COMPLAINT
A party desiring to raise an issue as to the legal existence of
any party or the capacity of the party to sue or be sued in
Complaint: The complaint is the pleading alleging the plaintiff’s cause/s of action.
a representative capacity shall do so by specific denial
The names and residences of the plaintiff and defendant must be stated in he
(include supporting particulars that are within the pleader’s
complaint. As stated beforehand, the complaint must be organized, concise and
knowledge)
straight to the point, only including the ultimate facts relied upon. Further, the
Alternative A party may set forth two or more statements of a claim or
capacity of parties to sue/be sued must be averred.
claims or defense alternatively or hypothetically either in one cause of
defenses action or defense OR in separate causes of action or defenses
Reyes v. RTC of Makati: Allegations in complaint determine jurisdiction of
the court
When two or more statements are made in the alternative and
one of them if made independently would be sufficient, the
 However, the rule provides that in all averments of fraud or mistake, the
pleading is not made insufficient by the insufficiency of one or
circumstances must be stated with particularity.
more of the alternative statements
o Rodrigo alleged the following in his complaint:
 ―This is a complaint to determine the shares of stock of the
Alternative pleading permits a party in a court action to argue
deceased spouses Reyes that were arbitrarily and fraudulently
multiple possibilities that may be mutually exclusive by
appropriated for himself x x x‖
making use of legal fiction.
 Oscar through other schemes of fraud, unilaterally took
possession and control of the management of Zenith‖
Pleading in the alternative: sets forth multiple claims or
 By some manipulative scheme, the shares of the mother was
defenses either hypothetically or alternatively such that if one of
transferred solely in Oscar’s name‖
the claims or defenses are held invalid, the others should still
 It is clear that these allegations of fraud are not properly supported by
have to be answered
the required factual allegations. They are not particular enough to
confer jurisdiction on RTC Makati, a special commercial court. Rodrigo
Performance In any pleading, a general statement of the performance or failed to show that the corporation’s nature, structure or powers were
of condition occurrence of all conditions precedent shall be sufficient.
used to facilitate the fraudulent scheme.
precedent  In essence, Oscar, as an individual, was alleged to have transferred the shares
Averments of In all averments of fraud or mistake, the circumstances of Anastacia to his name, allowing him to become the majority stockholder.
fraud, mistake constituting fraud or mistake must be stated with particularity.  The complaint should’ve shown on its face what are claimed to be the
or condition of fraudulent corporate acts in order to invoke RTC Makati’s jurisdiction.
mind However, malice, intent, knowledge or other condition of the  Unfortunately, Rodrigo was given the opportunity to amend his complaint but
mind of a person may be generally averred he refused.
Pleading In pleading a judgment or decision of a domestic/foreign court,  The court’s function in resolving issues of jurisdiction is limited to the
judgments judicial, quasi judicial tribunal, or of a board or officer, it is review of the allegations of the complaint, and on the basis of
SUFFICIENT to aver the judgment or decision w/o setting forth allegations, to the determination of whether they fall within the terms
matter showing jurisdiction to render it. of law defining the court’s jurisdiction. Therefore, RTC does NOT have
Official In pleading an official document/act, it is sufficient to aver that jurisdiction.
documents the document was issued or the act done in compliance with law.
Action or Whenever an action or defense is based on a written
defense based instrument/document, the substance of such instrument shall be
on document set forth in the pleading.

(Actionable
15
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

18. SUBSTANTIAL REQUIREMENTS OF PLEADINGS: THE ANSWER  RM did not deny that he purchased goods on credit BUT his refusal to pay was
due to questionable deliveries and such. RM failed to show a sales invoice which
Answer (Rule 6 Sec 4-5) It is a pleading wherein a defending party sets forth his substantiated his claim of questionable/short deliveries.
 The sales invoices were presented as evidence by M and their genuineness and
defenses
due execution were deemed admitted for RM’s failure to deny them.
 The SC ruled that RM’s answer failed to deny or contest the
What are the types of defenses?
genuineness/due execution of any of the receipts or any of the
signatures. RM, in alleging questionable and short deliveries,
1. Negative: A specific denial of the material facts/facts alleged in the pleading of
the claimant essential to his cause/s of action essentially alleges that M committed fraud.
o However, he failed to substantiate it as he chose to present
How are negative defenses alleged: evidence which did not set forth the facts nor substance of
matters upon which to support his denial as required by Rule 8
Sec 8. (RM only presented the load order and issue form, which
SPECIFIC DENIAL a. A defendant must specify what material allegation he
cannot be considered as his order as he can still call up SMC for
denies and state his basis therefore
more orders)
b. If he wishes to deny only a part of an averment, he shall
 The best evidence of their transactions were the sales invoices because it
specify what’s true and what he denies
showed that RM acknowledged receipt of M’s deliveries without protest. He
c. If he is without knowledge/information sufficient to form
failed to prove fraud. The lower courts did not err in admitting the evidence.
a belief as to the truth of a material averment, he shall
state this and this shall operate as a denial
Philippine American general Insurance Co. v Sweet Lines
Effect of failure to deny: ADMISSION
 A maritime suit was commenced by petitioner Philippine American General
QUESTIONING A party desiring to raise an issue as to the legal existence
Insurance (Philamgen) and Tagum Plastics against respondents Sweet Lines
CAPACITY OF of any party or the capacity of the party to sue or be
and (carrier) Davao Veterans Arrastre and Port Services (arrastre operator)
PLAINTIFF TO SUE sued in a representative capacity shall do so by specific
seeking recovery of cost of lost or damaged goods
denial (include supporting particulars that are within the
 COMPLAINT: It is alleged that Tagum Plastics ordered shipments of
pleader’s knowledge)
Polythylene. Only 5.8k bags out of the 7k bags, however, were in good
QUESTIONING THE The genuineness and due execution of the instrument shall
condition.
GENUINENESS OF be deemed admitted when an action or defense is founded
 ANSWER: SLI, in its answer, raised the defense of prescription as per the bill
THE DOCUMENT upon a written instrument (an actionable document)
of lading which provided:
o Bill of lading provides that claims for misdelivery, loss or damage must
UNLESS: the adverse party, under oath, specifically denies
be filed within 30 days from accrual. Suits arising from shortage,
them and sets forth what he claims to be the facts -> this
damage, or loss, etc shall be instituted within 60 days. Failure to file
denial must be verified
claims or institute judicial proceedings constitutes a waiver of right of
action
Requirement of oath not needed when:
o Further, even if the bills of lading were not formally offered in
evidence, the CA ruled that the litigation obviously depended on them
a.The adverse party does not appear to be a party
and that Sweet Lines seasonably raised prescription in its answer.
to he instrument
 REPLY: Petitioners stated that these were contracts of adhesion so they should
b. When compliance with a court order for an
be declared null and void for being against public policy
inspection of the original instrument is refused
 The RTC ruled in favor of the petitioners and ordered the respondents to pay.
NEGATIVE A denial pregnant with the admission of the substantial facts The CA however dismissed the complaint on the ground of prescription, as
PREGNANT: in the pleading responded to which are NOT squarely denied. provided in the bill of lading.
 Petitioners argue that the CA erred in upholding, without proof of the existence
of the so-called prescriptive period and hypothetically, even if there was, it is
null and void, and even if it was valid, that they complied therewith
Memita v. Masongsong
Issue: Can Sweet Lines maintain prescription as a defense?
 M supplied RM with chicken on credit. M then filed a complaint alleging that
RM’s credit has already reached 600k and that RM refused to pay.

16
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

 In its reply, petitioner failed to specifically deny the existence of the bills of ANSWER OF Within 15 days after service of summons UNLESS a different
lading. This amounts to an admission. Judicial admissions made by parties in DEFENDANT period is fixed by the court
the pleadings/course of the trial are conclusive, no evidence being required to ANSWER OF A Must be filed within 30 DAYS after receipt of such summons by
prove the same. DEFENDANT such entity
 Moreover, when the due execution and genuineness of an instrument are FOREIGN PRIVATE
deemed admitted because of the adverse party’s failure to make a specific JURIDICAL ENTITY
verified denial thereof, the instrument need not be formally presented as ANSWER TO AN 1. When plaintiff files an amended complaint AS A MATTER OF
evidence . AMENDED RIGHT: defendant has 15 days after being served a copy of
 Even granting that petitioner’s averment in its reply amounts to a denial, it is a COMPLAINT the amended complaint
pleading called a negative pregnant, a denial with the admission of the 2. When plaintiff files an amended complaint and it’s not a
substantial facts in the pleading responded to which are not squarely denied. matter of right: defendant has 10 days from notice of the
While petitioners objected to the validity of the agreement for being order admitting the amended complaint
contrary to public policy, the existence of the bills of
lading/stipulations were nevertheless impliedly admitted by them. Note: An answer earlier filed may serve as the answer to the
 It follows therefore that the non-inclusion of the bills of lading in the formal amended complaint if no new answer is filed.
offer of evidence cannot, be considered a fatal procedural error as to bar Sweet
Lines from raising the defense of prescription. g. Waiver of defenses (Rule 9 Sec 2): A compulsory counterclaim, or a cross-
 Also, it was proven that petitioner failed to file a notice of clam within the claim, not set up shall be barred
prescribed period and did not even allege that it did. CA affirmed.
19. SUBSTANTIAL REQUIREMENTS OF PLEADINGS: COUNTERCLAIM
d. Affirmative: An allegation of a new matter which, while hypothetically
admitting the material allegations in the claimant’s pleading, would
nevertheless prevent recovery by him. Counterclaim (Rule 6 Sec 6): A counterclaim is any claim which a defending party
may have against the opposing party
Examples: FRIED-PP
a. Fraud How is a counterclaim raised?
b. Prescription Included in the A counterclaim may be asserted against an original counter
c. Release answer claimant (counter-counter claim)
d. Payment
e. Illegality A cross-claim may also be filed against an original cross
f. Estoppel claimant
g. Discharge in bankruptcy After the answer A counterclaim or a cross-claim which either matured or was
h. Any other matter by way of confession/avoidance acquired by a party after serving his pleading may, with the
court’s permission, be presented as a counterclaim or a
e. Implied Admissions (Rule 9 Sec 1) cross-claim by supplemental pleading before judgment

General Rule Defenses and objects not pleaded either in a motion to dismiss
or in an answer are deemed waived What should the plaintiff do when a counterclaim is filed?
Exception: The court will DISMISS the claim if it appears from the
pleadings or the evidence on the record that: He should file an answer, because against the counterclaim, he is the defendant. He
has 10 days from service. (Rule 11 Sec 4)
a. The court has no jurisdiction over the subject
matter 20. KINDS OF COUNTERCLAIMS
b. That there is another action pending between
the parties for the same cause COMPULSORY COUNTERCLAIM PERMISSIVE
c. That the action is barred by prior judgment COUNTERCLAIM
d. That the action is barred by prescription DEFINITION It is one which, being cognizable The permissive
by the regular courts of justice, counterclaim arises from
f. Periods to plead (Rue 11 Sec 1-3) arises out of or is connected an event unrelated to
with the transaction or the matter on which
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

occurrence constituting the the plaintiff's suit is b. Inadvertence


subject matter of the based. c. Excusable neglect
opposing party’s claim and d. When justice requires
does not require for its This is not barred even if
adjudication the presence of not pleaded He may, by leave of court, set
third parties of whom the the counterclaim/cross by
court cannot acquire amendment BEFORE judgment
jurisdiction NATURE: Generally: A compulsory Not auxiliary as it arises
counterclaim is auxiliary to the from an unrelated event
Note: The counterclaim must proceeding in the original suit to the basis of plaintiff’s
also be within the jurisdiction of and merely derives it suit
the court both as to the amount jurisdictional support therefrom
and to the nature thereof,
except that in an original action Note: A plaintiff sues a defendant in a civil action. A defendant, as per the RoC has
before the RTC, the counterclaim the right to assert a legal claim of his own against the plaintiff. This is the
may be considered regardless of counterclaim. This makes assertions that the defendant could have made if the
the amount. plaintiff did not sue first. This is different from a defense because a defense merely
ELEMENTS: a. It arises out of or is Questions to test if its seeks to DEFEAT the plaintiff’s law suit. The compulsory counterclaim arises from
necessarily connected with, compulsory/permissive: the same transaction or occurrence that forms the basis of the plaintiff’s suit.
the transaction or a. Are the issues of
occurrence which is not the fact/law raised by the Maceda v. CA
subject matter of the counterclaim the
opposing party’s claim same?  V leased his house to M and let him remodel it, subject to reimbursement. V
b. It does not require for its b. Would res judicata died and M was informed that the house was sold to G but M did not want to
adjudication the presence of bar a subsequent suit leave. G filed an ejectment case against M in the MeTC.
third parties of whom the on defendant’s claim  M insisted on being reimbursed for the value of his improvements and set up a
court cannot acquire even without the counterclaim for 240k. MeTC granted the counterclaim and ordered
jurisdiction compulsory reimbursement
c. The court must have counterclaim rule?
jurisdiction to entertain the c. Will substantially the Issue: Did the MeTC, in an ejectment case (over the lessee’s counterclaim for the
claim same evidence value of improvements), exceed the court’s jurisdictional limit of P20k?
support/refute
plaintiff’s claim as  SC held that the MeTC did not have jurisdiction over the counterclaim as it
well as defendant’s exceeded 50k.
counterclaim?  A counterclaim in the MeTC/MTC beyond its jurisdictional limit may be pleaded
d. Is there any logical ONLY by way of defense, but not to obtain affirmative relief.
relation between the
claim and the 21. REPLY
counterclaim?
Reply: It is a pleading which denies or alleges facts in denial or avoidance of
IF NO, then its
new matters alleged by way of defense in the answer. It joins/makes issue as
permissive.
to the new matters.
REMEDY FOR GR: a compulsory counterclaim File an independent action
FAILURE TO RAISE not set up is barred since it involves different
If a party does not file such reply, all the new matters alleged in the answer are
issues anyway
deemed controverted/challenged
EX: when the pleader fails to set
up the counterclaim/cross-claim
If the plaintiff wishes to interpose any claims arising out of the new matters so
through the following,
alleged, such claims shall be set forth in an amended/supplemental complaint.
a. Oversight
Is a reply required?
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Extension of time to plead (Rule 11 Sec 11): Court may extend upon
It is generally optional. motion and on such terms as may be just. Court may also allow a
pleading/answer to be filed beyond the fixed time.
But it is required when an action/defense is founded upon a written
instrument BECAUSE the written instrument shall be deemed admitted 23. FORMAL R EQUIREMENTS: FILING AND SERVICE OF PLEADINGS, MOTIONS AND
unless the adverse party, under oath, specifically denies them and sets ORDERS
forth what he claims to be the facts (Rule 8 Sec 8)
Verification (Rule 7 Sec 4): A pleading is verified by an affidavit that the affiant
Casent Realty v. Philbanking (Instance when a reply has to be made in has read the pleading and that the allegations therein are true and correct of his
order to specifically deny the authenticity of an actionable document)
personal knowledge OR based on authentic records
 C issued a PN in favor of R. R couldn’t collect so he filed a collection case.
Forum shopping: (reiterated): Forum shopping consists of filing multiple suits
 C answered he and R already executed a dacion as regards his loan and C involving the same parties for the same cause of action, either simultaneously or
even presented supporting documents for this.
successively for the purpose of obtaining a favorable judgment
 SC ruled that because R did not reply and specifically deny the supporting
documents of the dacion, its genuineness and due execution was deemed
Elements of Forum Shopping: (Ao-As v. CA)
admitted. This is an instance when a reply has to be made in order to deny the
answer which is based on an actionable document.
1. Identity of parties
2. Identity of rights asserted/relief prayed for
3. Identity of two preceding particulars, such that any judgment rendered in the
22. THIRD/FOURTH PARTY C OMPLAINT other action will amount to res judicata in the action under consideration

3rd/4th Party Complaint (Rule 6 Sec 11): A claim that a defending party may, How is forum shopping committed?
with leave of court, file against a person not a party to the action (called the third,
fourth party defendant for): CISA 1. Litis Pendentia: Filing multiple cases based on the same action and with the
 Contribution same prayer, the previous case not having been resolved yet
 Indemnity 2. Res Judicata: Filing multiple cases based on the same cause of action/prayer,
 Subrogation the previous case having been finally resolved
 Any other relief 3. Splitting: Filing multiple cases based on the same cause of action but with
o In respect of his opponent’s claim different prayers

What is done in response to a third/fourth party complaint? PAL v. Flight Attendants and Stewards Assoc of the Phils (FASAP)

Rule 6 Sec 13: A third/fourth-party defendant may allege in his answer FASAP and Bhagwani filed a case against PAL for unfair labor practice, illegal
his: suspension and dismissal in NLRC. NLRC ruled in favor of FASAP and ordered
i. Defenses payment of damages. NLRC then modified the finding that PAL was guilty of unfair
ii. Counterclaims/cross claims labor practice. PAL appealed to the CA. The certificate of non-forum shopping
iii. Defenses that that the 3rd/4th party plaintiff may have against that accompanied this appeal is what is at issue in this case. The CNFS was
the original plaintiff’s claim signed by the VP of Human Resources and the AVP of Cabin Services of PAL
iv. In proper cases, he may also assert a counterclaim against without showing that they had authority to sign for PAL. Because of this, the
the original plaintiff in respect of the original plaintiff’s claim appeal was dismissed. An MR was filed but with this time accompanied by a board
against the third party plaintiff resolution which showed that he two had authority. This was again dismissed. The
1. The answer must be filed 15 days after service of SC held that only individuals vested with authority by a valid board resolution may
summons sign the CNFS in behalf of the corporation. The belated submission of the
resolution was sufficient ground for dismissal. Further, at the time the
Remedy if dismissed: If the original plaintiff appeals the dismissal of his CNFS was filed, the two really didn’t have authority. An invalid CNFS cannot
complaint, the defendant-third party plaintiff must also appeal to get be remedied by the subsequent submission of the Resolution
affirmative relief
24. FILING AND SERVICE OF PLEADINGS

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

a) Effect of order of default: A party in default shall be entitled to


Rule 13: Filing and Service of Pleadings, Judgments and other Papers notice of subsequent proceedings but NOT to take part in trial
b) Relief from order of default: A party declared in default may at any
Rule 13 governs the filing of all pleadings and other papers as well as the service time after notice thereof and before judgment file a motion under oath
thereof, except those for which a diff mode of service is prescribed. to set aside the order of the default upon showing of FAME
c) Effect of partial default: When a pleading asserting a claim states a
Filing Act of presenting the pleading/other paper to the clerk of common cause of action against several defending parties, some of
court. The manner would be presenting the original copies of whom answer and the others fail to do so, the court shall try the case
the papers personally to the clerk of court or through against all upon the answers thus filed and render judgment on the
registered mail. evidence presented
Service The act of providing a party with a copy of the d) Extent of relief awarded: A judgment rendered agaisn ta party in
pleading/paper concerned. If a party has counsel, service default shall not exceed the amount or be different in kind from that
must be made on the counsel UNLESS the court orders the prayed for nor award liquidated damages
service to be made to the party himself.
Notice of Lis Pendens R13 S14: It is recording of a notice of pendency of an
Service is done either: (R13 S11: Whenever practicable, the service and action affecting the title/right of possession of real property in the RD in which the
filing of pleadings shall be done PERSONALLY. A resort to other means property is situated. The plaintiff or the defendant may file this if an affirmative
must be accompanied by an explanation) relief is claimed as regards the land The filing of such notice will operate to be
the constructive notice of the action as against any
Personally: 1) personally delivering a copy Complete upon actual purchaser/encumbrancer and against parties designated in the notice. It
to the party or his counsel delivery may be cancelled upon order of the court. (Basically, it’s telling everyone that the
2) leaving a copy in his property is currently under litigation. It’s also for determination of good/bad faith)
(party/counsel) office with
a person having charge 25. RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
thereof
3) if no one is at the office, then How are pleadings 1. Adding/striking out an allegation or a name of any
at the party’s/counsel’s amended? party
residence, with a person of 2. Correcting a mistake in the name of a party or a mistaken
sufficient age/discretion or inadequate allegation of description in any other
residing therein respect
Mail: deposit a copy in the post office complete upon actual Purpose So that the actual merits of the controversy may speedily be
receipt of addressee or 5 determined, without regard to technicalities
days from the date when
he received first notice Effect of Amended pleading supersedes the original pleading
from postmatster, which amendment
is earlier HOWEVER, admissions in superseded pleadings may be
Substituted If service cannot be made received in evidence and claims or defenses alleged
Service personally or by mail and the office therein not incorporated in the amended pleading shall
or residence of the party/counsel is be deemed waived.
unknown, it may be made by
delivering the copy to the clerk
of court. Barfel Development Corp. vs. CA

Upon party in default R9 S3:  Petitioner Barfel, as sellers, and Private respondent Reginas Industries, as
buyer, entered into an Agreement to Buy/Sell 2 parcels of land. The agreement
If the defending party fails to answer within the time allowed therefor, the court, stated that the seller will apply the payment of cash to the removal of any lien
shall, upon motion of the claiming party with notice to the defending party, on the properties. Barfel warranted that except for a mortgage in favor of BPI,
and proof of such failure, DECLARE the defending party in default. The court there are no other liens on the properties. However, Reginas Industries
twill then proceed to render judgment granting the claimant such relief as his discovered that the properties were subject to an second mortgage with
pleading my warrant PISO/Central Bank
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

 Subsequently. PSB informed Reginas Industries that its loan application with notice to adverse party and an opportunity to be
which to pay the properties has been approved. This was secured by a real heard. This may be denied if the motion to amend was
estate mortgage on the said properties. PSB undertook to pay the mortgage only for delaying tactics
due to BPI.
 Barfel, in bad faith and breach of contract, failed and refused to comply Amendment to When issues not raised by the pleadings are tried with the
with their obligation of securing releasing the second mortgage on the conform to or consent of the parties, they shall be treated as if they
subject properties, preventing the consummation of the sale. Thus, authorize were raised in the pleadings.
Reginas Industries filed a complaint for specific performance and damages presentation of
against Barfel. evidence To conform to the evidence presented, amendments to the
 During Barfel’s presentation of evidence, Reginas Industries filed an pleadings may be made upon motion of any party at
amended complaint which consisted of impleading PISO Bank as any time, even after judgment.
additional party defendant and compel it to accept payment of the
existing second mortgage. This was admitted by the court. If evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, the COURT
Issue: Was the admission of the amended complaint proper notwithstanding the may allow the pleadings to be amended and shall do so with
provisions Sec 3 Rule 10 which states that ―After the case is set for hearing, liberality if the presentation of the merits and the ends of
substantial amendments may be made only upon leave of court. But such leave justice will be subserved thereby.
may be refused if it appears to the court that the motion was made with intent to
delay the action or that the cause of action or defense is substantially altered? Supplemental pleadings: A pleading that is always by leave court, and upon
motion and upon notice, that seeks to include transactions, occurrences or events
 The reason for the amendment impleading PISO is to compel the latter to which have happened since the date of the filing of the pleading sought to be
accept Regina’s payment and release the second mortgage. However, PISO supplemented.
bank is not a party to the contract subject of the action for specific
performance and damages between Reginas and Barfel. Thus, it is not an Amended Supplemental
indispensable party. It seeks to include facts already existing It seeks to include facts that occurred
 The action for specific performance by Reginas against Barfel is not the proper at the date of the original pleading since the date of the pleading sought to
venue for releasing all liens the subject property, thus allowing such sought to be amended but were not be supplemented
inclusion would delay proceedings on the original case. pleaded due to inadvertence/mistake
 Also, the amendment sought by private respondents, which is to include A matter of right before a responsive Always be leave of court
a new party defendant at a late stage in the proceeding is a substantial pleading is filed
one. Thus, Reginas will have to present additional to the effect that it New copy of entire pleading needed No new copy needed
would be a new trial Original superseded by the amended Original pleading stands and now
includes the supplemental

Kinds of Amendments:

Formal amendment Defects in the designation of the parties or


clerical/typographical errors may be corrected by the court
at its own initiative or upon motion PROVIDED no prejudice
is caused to the adverse party
Substantial 1. As a matter of right: ONCE as a matter of right
amendment a. at any time before a responsive pleading
is served
b. in case of a reply, at any time within 10 days
after it is served
2. As a matter of discretion of the court: A substantial
amendment after a responsive pleading has been filed
may be made only upon leave of court and after
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 12: Bill of Particulars Rule 19: Intervention

WHAT IS A BILL A more definite statement of any matter which is NOT WHAT IS It is an act or proceeding by which a third person is permitted
OF averred with sufficient definiteness or particularity. It INTERVENTION to become a party to an action or proceeding between other
PARTICULARS? becomes part of the pleading to which it is intended. When persons. Its purpose is to determine all conflicting claims
a pleading is couched in general/vague terms, file for a BoP regards all the parties involved.
PURPOSE To enable the opposing party to properly prepare his WHO MAY 1. One who has a legal interest in the matter of litigation
responsive pleading INTERVENE? 2. One who has legal interest in the success of either of the
parties
Virata v. Sandiganbayan: Function is to limit a pleading, M-S-B-A 3. One who has an interest against both parties
specify more particularly a claim or defense set up in 4. One who is so situated as to be adversely affected by a
general terms, give information to the opposite party and distribution or other disposition of property in the custody
the court as to the precise nature, character, scope and of the court or of an officer thereof
extent of the cause of action. REQUIREMENTS Saw v. CA:
WHEN FILED Before responding to a pleading, a party may move for a bill FOR
of particulars INTERVENTION 1. Legal interest of the movant in the SM of litigation or
EFFECT WHEN Clerk will bring it to the attention of the court and court has TO BE ALLOWED: otherwise qualified (basically, LEGAL INTEREST)
FILED three options: 2. Court must give consideration as to whether:
1. Grant 3. the adjudication of the rights of the original parties
2. Deny may be:
3. Allow the parties an opportunity to be heard a. delayed or prejudiced, or
EFFECT OF NON- 1. The court may order the striking out of the pleading or b. whether intervenor’s rights may be
COMPLIANCE the portions thereof to which the order was directed protected in a separated proceeding or not
2. Make another order as it may deem just MANDATORY OR Intervention is discretionary upon the court for an intervening
INTERRUPTING After service of the BoP or after notice of denial of his DISCRETIONARY? party requires the leave of court.
EFFECT motion,
Intervention can only be remedied by mandamus if the denial
The moving party (party who asked for BoP) may file his was due to GADLEJ
responsive pleading within the period to which he was PLEADINGS TO 1. Complaint-in-intervention: If he asserts a claim
entitled at the time of filing his motion which shall be at BE FILED: against either or all of the original parties
least 5 days at any event 2. Answer-in-intervention: If he unites with the defending
NOTICE AND This is a motion so it requires notice of hearing with proof of party in resisting a claim against the plaintiff
HEARING service to the other party WHEN FILED: Motion to intervene must be filed BEFORE trial court renders
REQUIREMENTS: judgment

Doctrines: Doctrines:

1. Virata v. Sandiganbayan: 1. Saw v. CA and Metropolitan Bank v. Presiding Judge


a. It is not the office of a BoP to: a. General Rule: Intervention is just an ancillary and supplemental
i. supply material allegations necessary to the validity of the one which, in the nature of things, unless otherwise provided by
pleading law, is subordinate to the main action. (Basically, if the main
ii. to change a cause of action or defense stated in the action is dismissed, complaint-in-intervention is dismissed)
pleading b. Exception: If the original action is dismissed and it had not
iii. to state a new cause of action affected the rights of intervenor, the intervenor’s petition
showing it to be entitled to affirmative relief will be
preserved.

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 14: Summons ON WHOM SUMMONS SPECIFICALLY HOW IT IS SERVED


SERVED
WHAT IS It is a writ directed to a defendant, notifying him of the civil Normal person- 1. Personal service
SUMMONS? complaint filed against him. defendant (and 2. Substituted service
WHO ISSUES THE The clerk of court issues the summons upon the filing of the generally) 3. Publication (with
SUMMONS? complaint and the payment of fees leave of court)
Entity without 1. Any one of the 1. Personal service
PURPOSE OF To acquire JURISDICTION over the person of the
juridical personality, associated persons 2. Substituted service
SUMMONS defendant
when sued in the 2. All of the associated
CONTENTS OF 1. Name of the court and names of parties to the action name they are persons BUT: such service shall
SUMMONS 2. A direction that the defendant should answer within the generally/commonly 3. Person in charge of the not individually bind any
time fixed known: office person whose connection
3. A notice that unless defendant answers, he shall be with the entity has, upon
declared in default due notice, been severed
WHO SERVES 1. The sheriff before the action was
SUMMONS 2. Sheriff’s deputy brought
3. Other proper court officer: bailiff, subpoena server, Domestic private 1. President 1. Personal service to
warrant officer juridical entity 2. Managing Partner any one of them
4. Any other suitable person authorized by the court 3. General manager 2. Substituted service
EFFECT OF Defendant can file a motion to dismiss on the ground of lack 4. Corporate Secretary
DEFECTIVE of jurisdiction over his person 5. Treasurer
6. In-house counsel
SUMMONS
EFFECT OF If defendant voluntarily appears, it shall be equivalent to Foreign private 1. Resident Agent 1. Personal service
VOLUNTARY service of summons. juridical entity 2. If none, on the 2. Substituted service
APPEARANCE government official
HOWEVER, the inclusion in a MTD of other grounds aside designated by law
from lack of jurisdiction shall not be deemed voluntary 3. Any of its
appearance officers/agents within
the Philippines
Modes of Service Public Corporation 1. Solgen 1. Personal service
2. If province, city, 2. Substituted service
PERSONAL 1. Personally handing a copy to the defendant in
municipality:
person
Executive Head
2. If he refuses, by tendering it to him
3. Other officers as
SUBSTITUTED If, for justifiable reasons, the defendant cannot be
law/court may direct
served, it can be effected by:
Minors 1. Upon the minor AND 1. Personal
his guardian/parent 2. Substituted
1. Leaving a copy of the summons at defendant’s
residence with some person of suitable age and Insane, 1. Upon the insane and 1. Personal
discretion residing therein incompetent his legal guardian 2. Substituted
2. Leaving copies at defendant’s office or regular place Prisoners 1. Upon the officer 1. Personal
of business with some competent person in charge having management 2. Substitute
of the jail who is
deemed deputized
PUBLICATION See Sec 14
Unknown 1. Publication in a
EXTRATERRITORIAL See Sec 15: Not allowed in personal actions defendant: If his newspaper or in
identity and location such places as the
CANNOT be court may order
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

ascertained with Doctrines:


diligent inquiry
Resident 1. Extra-territorial 1. Valmonte v. CA:
temporarily out of service with leave of a. If the action is in rem or quasi in rem, jurisdiction over the person of
the country court the defendant is not essential for giving the court jurisdiction so long
2. Substituted service as the court acquires jurisdiction over the res. If the defendant is a
with leave of court nonresident and he is not found in the country, summons may be
3. Service by served exterritorially in accordance with Sec 15
publication with b. In such cases, what gives the court jurisdiction in an action in
rem or quasi in rem is that it has jurisdiction over the res, i.e. the
leave of court (with
personal status of the plaintiff who is domiciled in the Philippines
order sent to the
or the property litigated or attached.
last known address
c. Service of summons in the manner provided in Sec 15 is not for
of defendant)
the purpose of vesting it with jurisdiction but for complying
4. Any other manner with the requirements of fair play or due process, so that he will
court deems proper be informed of the pendency of the action against him and the
Non-resident: 1. Extra-territorial possibility that property in the Philippines belonging to him or in which
Requirements: service with leave of he has an interest may be subjected to a judgment in favor of the
QUASI in REM and court plaintiff and he can thereby take steps to protect his interest if he is so
IN REM actions 2. Substituted service minded.
Does not reside/not with leave of court 2. Cezar v. Ricafort-Bautista and Lhullier v British Airways:
found in the 3. Service by a. General Rule: Appearance cures defective summons: A voluntary
Philippines publication with appearance is a waiver of the necessity of summons.
leave of court (with b. Exception: If a defendant appears and questions the court’s
The action affects order sent to the jurisdiction, it is not considered a voluntary appearance
personal status of the last known address 3. Montefalcon v. Vasquez:
plaintiff of defendant) a. For residents temporarily out of the country, the primary mode is
4. Any other manner substituted service.
OR court deems proper 4. Valmonte v. CA:
a. When it comes to non-residents who are not found in the
The subject of the Philippines and the action is in-rem/quasi-in-rem, service must be
action is property in made extra-territorially
the Philippines where b. Problem: A is in the US and resides there. B sues A for partition
defendant has interest (quasi in rem) To properly serve A, the three methods as provided
and plaintiff seeks to for in Sec 15 have to be used and they all have to be done
include him OUTSIDE the country:
i. Personal service, with leave of court
OR ii. Publication in newspaper of GC with copy of the
summons/order of the court to be sent by registered mail
Properties of to the last known address of defendant
defendant were iii. Any other manner which the court deems sufficient (i.e.
attached by service through the Phil Embassy in the foreign country
where the defendant resides)

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 15: Motions Doctrines:

WHAT IS A It is an application for relief other than by a pleading 1. Compare and contrast Victory Liner, Lanto and Vlason
MOTION?
FORM In writing Victory Liner Lanto Vlason
Except: those made in open court/course of trial In this case, the losing In this case, A contested a Vlason was not
CONTENTS 1. Relief sought to be obtained party filed a motion for resolution abolishing his informed of any
2. Grounds relied upon reconsideration but did position. He went to court. cause of action
3. Supporting affidavits and other papers if required by the not set the date for The members of the board against it and it was
rules or necessary to prove alleged facts hearing in the motion. (who issued the resolution) NOT validly
NOTICE AND General Rule: every written motion shall be set for hearing The MR was dismissed filed a motion to dismiss summoned. Despite
HEARING by the applicant and it was deemed not and set the hearing for the of that, Vlason was
REQUIREMENTS: have tolled the period motion. A was unable to ordered to be liable in
Exception: Motions which the court may act upon without for appeal. attend the hearing but he the case. Vlason filed
prejudicing the rights of the adverse party was able to file his written an MR but it was
REQUISITES: Victory Liner v. Malinianas: opposition to the motion to dismissed for lack of
dismiss. The judge granted notice of time and
1. Generally written the MTD, BUT took into date of hearing.
2. Relief must be stated consideration A’s
3. Notice of hearing (a date must have been set) to be arguments in his written
addressed to ALL parties concerned opposition.
4. Proof of service required GR: A motion without a EX: When the adverse EX: When a rigid
WHAT IS AN A motion attacking a pleading, order, judgment or notice of hearing (with a party had an opportunity application would
OMNIBUS proceeding (POJP) shall include ALL objections then time and date set) is to oppose, notice of result into
MOTION? available, and all objections not included shall be deemed useless hearing is unnecessary. miscarriage of
waived justice/manifest
injustice
Exception: (Rule 9 Sec 1) Defenses and objections not Reason why motion The SC ruled that the
pleaded either in a motion to dismiss OR in an answer are must set the time and essence of requiring a
deemed waived place for hearing: hearing for a motion is
Unless the movant sets DUE PROCESS.
However, the court will DISMISS the claim when it appears the time and place of
from the pleadings or on evidence on record of these hearing, the court will be In this case, A was able to
situations: unable to determine file his written opposition
a. No jurisdiction over SM whether the adverse and the order of dismissal
b. Litis Pendentia party agrees or objects took into consideration his
c. Res Judicata to the motion and if he arguments.
d. Prescription objects, to hear him on
MOTION DAY GR: All motions shall be schedules for hearing on Friday his objection, since the
afternoons rules themselves DO
NOT fix any period
Ex: If Friday is a non-working day, in the afternoon of the within which he may file
next working day his reply/opposition (to
a motion

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

WHAT IS THE A MTD based on:


Rule 16: Motion to dismiss (Before answer) EFFECT OF
DISMISSAL? a. Res Judicata/Prescription
WHEN IS THE Within the time for but BEFORE filing the answer to the b. Extinguishment of claim
MTD FILED? complaint or to the pleading asserting a claim c. Unenforceability

*Note: Defendant given 15 days to answer Will bar the re-filling of the same action or claim.
WHO FILES The defendant However, this is still subject to the right of the
THISMTD? plaintiff/claiming party to appeal.
GROUNDS FOR 1. Court has no jurisdiction over the PERSON of the CAN THE Affirmative Defense: Allegation of a new matter, which,
MTD defending party GROUNDS BE while hypothetically admitting the material allegations of the
2. Court has no jurisdiction over the SM PLEADED AS pleading, would nevertheless prevent or bar recovery by him.
J2VC-LRC- 3. Improper venue AFFIRMATIVE
EUC 4. Plaintiff has no legal capacity to sue DEFENSES? YES. If no MTD has been filed, any of the grounds provided
5. There is another action pending between the same for may be pleaded as an affirmative defense in the answer
parties for the same cause (litis pendentia)
6. That the cause of action is barred by a prior judgment AND in the DISCRETION of the court, a preliminary
or by statute of limitations (res judicata+prescription) hearing may be had thereon as if a MTD has been filed.
7. That the pleading asserting the claim states no cause of
action However, the dismissal of the complaint under this section
8. That the claim/demand of plaintiff has been paid, (Sec 6: pleading grounds as affirmative defenses) shall
waived, abandoned or extinguished be without prejudice to the prosecution in the same or
9. That the claim is unenforceable separate action of a PERMISSIVE counterclaim pleaded
10. A condition precedent has not been complied with in the action (because mandatory counterclaims are
HEARING At the hearing of the motion, parties shall submit their generally constrained to the main action)
arguments and evidence on the questions of law and fact IS NO. Preliminary hearing when MTD grounds are pleaded as
involved. PRELIMINARY affirmative defense is DISCRETIONARY upon the court.
HEARING
If the case goes to trial, the evidence presented during the MANDATORY? Further, it was held in Municipality of Binan v. CA, that a
hearing = part of the evidence of the party presenting the preliminary hearing is NOT necessary when the affirmative
same defense is failure to state cause of action because the courts
HOW IS 1. Court will DISMISS the action or claim (grant MTD) only have to look at the allegations in the complaint anyway
MOTION 2. Court will DENY the motion (no need to hear the parties when the court has to look at
RESOLVED? 3. Court will ORDER amendment of the pleading (of the the complaint anyway)
plaintiff) REMEDIES AS If MTD is GRANTED:
REGARDS THE  Plaintiff may appeal/MR
All with reasons. MTD  Re-file the case
IF MTD IS The movant shall file his answer within the balance of the If MTD is DENIED:
DENIED, WHAT period to which he was entitled at the time of serving his  File an answer, go to trial, reiterate issues on appeal
WILL MOVANT motion.  If RTC committed GADLEJ, petition for certiorari
DO? under rule 65
However, this shall be at least 5 days in any event,
computed from his receipt of the notice of denial.
WHAT IF THE He shall file his answer within 15 days counted from service
PLEADING IS of the amended pleading unless the court provides a longer
ORDERED TO BE period
AMENDED?
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Case Doctrines:

1. Boticano v. Chu
a. A party cannot question jurisdiction over his person for the first
time on appeal -> Note: BUT jurisdiction over the subject matter
can be questioned at any time because it is conferred by law
b. Instances considered as voluntary appearance:
i. filing a notice of appeal
ii. appearing in person in the hearing
iii. filing notice of appeal, appeal bond, motion for extension
to file record on appeal
2. Del Rosario v. Far East Bank and Trust: ELEMENTS OF RES
JUDICATA:
a. Final former judgment
b. Court which rendered judgment had jurisdiction
c. Judgment must be on the merits
d. There must be identity of parties, SM and causes of action
3. Halimao v. Villanueva: Defendant filed a motion to dismiss based on res
judicata. Plaintiff argues that this operates as a hypothetical admission of
the alleged facts. VS. Tan v. CA
a. SC ruled that if the ground for motion to dismiss is RJ, it does not
operate as a hypothetical admission of the alleged facts.
b. General Rule: A MTD based on lack of cause of action operates
as a hypothetical admission of all the facts alleged in the
complaint (Basically saying, fine, even if all that is true, you still
don’t have a cause of action)
i. In this case, the hypothetical admission is limited to the
facts alleged in the complaint. From there, the court will
determine if there is a cause of action.
c. Exception: The court should not be constrained to the
consideration of facts alleged in the complaint and inferences fairly
deducible therefrom. Courts may consider facts within the range of
judicial notice and other relevant laws and jurisprudence, along
with examining records/documents incorporated in the complaint.
4. Asia Production v. Pano
a. SoF applies only to executory contracts and in actions for their
specific performance. It does NOT apply to actions which are
neither for violation of a contract nor for the performance thereof.
5. Sunville Timber v. Abad:
a. Non-observance of exhaustion of administrative remedies can be a
ground to dismiss (because it results into a lack of cause of action)
b. Examples of non-compliance with condition precedents:
i. Conciliation proceedings in the barangay level
ii. Suits between members of the family and no earnest
efforts for compromise were sought

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 17: Dismissal of actions (Dismissal due to plaintiff) Third Method (R17 S3): Dismissal due to plaintiff’s fault

UNDER RULE 17, This time, it’s the plaintiff HOW IS IT DONE? Motion filed by:
WHO CAUSES THE
DISMISSAL? 1. Defendant
APPLICATION TO The provisions of this rule apply to the dismissal of any 2. By the Court
COUNTERCLAIMS, counterclaim, cross-claim or any third party complaint. GROUNDS FOR THE 1. Failure of the plaintiff to appear on the date of
CROSS-CLAIMS OR MOTION? the presentation of his evidence in chief
THIRD PARTY A voluntary dismissal by the claimant by notice shall be 2. Failure of the plaintiff to prosecute his action
COMPLAINT made BEFOE a responsive pleading/motion for summary (A-P-R-O) for an unreasonable length of time
judgment is served OR if there is none, before the 3. Failure of the plaintiff to comply with Rules of
introduction of evidence at the trial or hearing Court (failure to comply with discovery rules
r24-29 or failure to appear at pre-trial)
First Method (R17 S1): Upon notice by plaintiff 4. Failure of the plaintiff to comply with any order
of the court
HOW IS IT DONE? By filing a notice of dismissal before the court. This is a EFFECT OF Without prejudice to the right of the defendant to
MATTER of RIGHT. No ground needed. DISMISSAL prosecute his counterclaim in the same/separate action
WHEN MUST IT BE  Before the service of the answer (on the plaintiff) IS THE DISMISSAL GR: It is with prejudice of refilling because it has the
DONE?  Before service of motion for summary judgment WITH OR WITHOUT effect of an adjudication upon the merits
EFFECT OF FILING Upon filing of the notice, the court shall issue an ORDER PREJUDICE? EX: If the court declares that it is not
NOTICE confirming the dismissal. Court has no discretion.
IS THE DISMISSAL GR: It is a dismissal without prejudice *Also important in determining existence of the second
WITH OR WITHOUT EX: With prejudice ONLY if stated element of RJ
PREJUDICE? EX: Two-dismissal rule: If the plaintiff already filed a REMEDIES OF 1. Motion for reconsideration (for
notice concerning an action based on or including the PLAINTIFF IF reinstatement/dismissal be made w/o prejudice)
same claim, the SECOND FILING OF THE NOTICE DISMISSAL IS 2. Ko v. PNB: If denied, ordinary appeal under
operates as an adjudication upon the merits UNDER THIS RULE rule 41 (not under rule 45)
AND WITH 3. If judgment final, a petition for relief from
*Two-dismissal rule is IMPORTANT as it fulfills the PREJUDICE judgment due to FAME under rule 38
second element of Res Judicata!
CD:
Second Method (R17 S2): Upon motion of the plaintiff
1. Cruz v. CA: If the lower court orders dismissal due to the fault of the
HOW IS IT DONE? Motion to dismiss filed by the plaintiff + Court approval plaintiff and does not qualify it, it has the effect of adjudication on the
WHEN MUST IT BE  After service of the answer merits. The dismissal will operate as fulfillment of the second element of
DONE?  After service of motion for summary judgment res judicata
EFFECT OF MOTION If granted, GR: Without prejudice to refiling, 2. Pinga v. Heirs of Santiago: Plaintiffs filed a case. Defendant had a
EX: When specified that it is with prejudice counterclaim. The case was dismissed due to the plaintiff’s fault.
WHAT IF The dismissal shall only be limited to the complaint. a. In this case, defendant can still prosecute his counterclaim even
DEFENDANT PLEADS after the dismissal of the main case. This is of course with the
A COUNTERCLAIM The defendant can still prosecute his separate claim in a condition that the counterclaim is with merit or suffers any
BEFORE HE IS separate action UNLESS within 15 day from notice of the jurisdictional flaws (otherwise, court can dismiss it on these
SERVED NOTICE OF motion, he manifests his preference to have his defects)
PLAINTIFF’S
MTD? counterclaim resolved in the same action b. It does not matter whether it be a permissive or a mandatory
WHAT ABOUT CLASS A class suit shall not be dismissed/compromised w/o counterclaim.
SUITS approval of the court
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 9 Sec 3: Law on Default REMEDIES of DEFAULTED PARTY


Rule 9 Sec 3(b): At any time AFTER notice of default and BEFORE
WHO MAY BE The defending party: original defending party, defendant Motion to set aside judgment, he may file a motion to set aside the order of
DECLARED IN in counterclaim, the cross-defendant, the 3rd/4th/etc default with the showing of two grounds (both must
DEFAULT? party defendant concur)
WHEN MAY A 1. If he fails to file an answer (within the time 1. His failure to answer was due to FAME
DEFENDANT BE allowed) 2. He has a meritorious defense
DECLARED IN 2. If he fails to furnish a copy of the answer Rule 40-41: Appeal Before finality, by filing a notice of appeal
DEFAULT? 3. If he fails to appear at a pre-trial from the MTC to
4. If he fails to comply with modes of discovery the RTC and Appeal
WHAT IS THE 1. Claiming party files a motion to declare the from
PROCEDURE? defending party in default Rule 37: Motion for After judgment BUT before finality, he may file an MR or
2. Defending party must be given notice of the motion reconsideration or for new trial upon showing of FAME
*court cannot motu 3. At the hearing, claiming party must show WHY the new trial
proprio declare defending party is in default (in this rule, prove that Rule 38: Petition After finality of judgment, if defaulted defendant
party in default defendant FAILED to answer) for relief from discovered the default, he may file a petition for relief
4. Court will issue the order of default judgments, orders
5. Court will render judgment by default granting the other proceedings
claimant such relief his pleading may warrant Rule 47: When new trial, appeal and petition for relief or other
UNLESS the court requires the claimant to submit Annulment of appropriate remedies are not available through no fault
evidence (clerk of court can receive this evidence) judgments or final of the defaulted party, he may file for annulment of the
WHAT IS THE 1. Defaulted party still entitled to notice of subsequent orders and order of default based only on:
EFFECT OF ORDER IN proceedings resolutions 1. Extrinsic fraud (Fraud that couldn’t have been
DEFAULT? 2. Defaulted party CANNOT present evidence discovered in trial and which prevented
3. Defaulted party LOSES right to be heard defaulted party from participating)
WHAT IS THE When a pleading asserting a claim states a common 2. Lack of jurisdiction of the court
EFFECT OF PARTIAL cause of action against several defending parties, and
DEFAULT? some of whom answer and the others fail to do so, the Default Judgment Order of Default
court shall try the case against all upon the answers thus This is used by the court, on motion Issued by the court after the
filed and render judgment based on the evidence of the plaintiff, for failure of the party defending party has been declared in
presented to file a responsive pleading on time default, or after the evidence of the
WHAT IS THE A judgment in default shall not exceed the amount or be claimant has been received ex parte if
LIMITATION ON THE different in kind from that prayed for. required by the court
RELIEF GRANTED?
It can also not award liquidated damages. 1. Gajudo v. Traders Royal:
WHEN IS DEFAULT In an action for annulment, declaration of nullity or legal a. Just because the opposing party was declared in default, it doesn’t
NOT ALLOWED separation: Instead, prosecuting attorney will check if mean that the plaintiff will automatically win. The burden of proof
there is collusion and if none, will intervene falls upon him to substantiate his claim in his pleadings with
evidence (preponderance)
2. Vlason: No order of default against a party, no default judgment allowed
against that party
a. The court CANNOT render a default judgment against a party who
was not declared in default in the first place. The presentation of
evidence ex-parte against this party is INVALID.
3. Martinez v. Republic

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

a.
Even though it is not expressly provided for in the RoC, a party
declared in default can still appeal the default judgment
against it
4. Jao & Co and Indiana Aerospace University:
a. GR: Default judgment is an adjudication on the merits and is thus
appealable/mr. Rule 65 is not the appropriate remedy
b. EX: Purely legal issues, public interest, extreme urgency, special
circumstances

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 18: Pre-Trial APPEAR AT PRE- a. GR: With prejudice


TRIAL AND TO b. EX: If court orders that its not
WHEN IS PRE- After the last pleading has been served and filed Basically, FILE PRE-TRIAL 2. If defendant fails: Plaintiff may present evidence ex
TRIAL the REPLY by the plaintiff to the answer BRIEF? parte and the court may render judgment on the
CONDUCTED? basis thereof (like default)
WHAT IS THE Pre trial is MANDATORY. The court will consider the ff: WHEN MAY 1. If there is a VALID CAUSE
NATURE AND FAILURE TO 2. If a representative appears in the absent party’s
PURPOSE OF 1. Possibility of an amicable settlement APPEAR BE behalf fully authorized in writing to (depends)
PRE-TRIAL? 2. Simplification of issues EXCUSED? a. Enter into an amicable settlement
3. Necessity of amendments to the pleadings b. To submit to alternative modes of dispute
4. The possibility of obtaining stipulations/admissions of resolution
facts and of documents to avoid unnecessary proof c. To enter into stipulations or admissions of
5. The limitation of the number of witnesses facts and documents
6. The advisability of a preliminary reference of issues to a
commissioner CD:
7. The propriety of rendering judgment on the
pleadings/summary judgment/dismissal 1. LCK Industries v. Planters: A obtained a loan from B secured by a REM.
8. The necessity of suspending the proceedings B foreclosed upon default. In the pre-trial, A’s defense/claim of
9. Other matters that will aid in the disposition of the case overpayment was not taken up. However, the SC ruled that this issue was
WHO HAS THE The plaintiff included because it only required simple math (Selling price at auction
DUTY TO SET THE sale-A’s obligation=overpayment)
CASE FOR PRE- He has 5 days to move ex-parte within 5 days from the a. A pre-trial order does not have to state each and every issue that
TRIAL? date of filing of the reply. may be taken up during trial. Issues that are IMPLIEDLY
included are included in the pre-trial order as those
Effect of failure of plaintiff to set: The clerk of court expressly stipulated
shall issue the notice of pre-trial 2. Calalang v. CA: Counsel of plaintiff was 15 minutes late for pre-trial. His
WHO SHOULD The notice of pre-trial shall be served on: case was dismissed due to this
THE NOTICE OF 1. The counsel (he has the duty of notifying his client) a. Absent any negligent or irresponsible conduct by the party (in this
PRE-TRIAL BE 2. The party who has no counsel case, the plaintiff), the court should consider lesser sanctions than
SENT TO? dismissal.
WHAT IS THE The parties are required by the court to serve on each 3. Spouses Corpuz v. Citibank
PRE-TRIAL other at least 3 days before the date of the pre-trial, a. To constitute excusable negligence:
BRIEF? their respective pre-trial briefs. It shall contain: i. The absence must be due to counsel’s failure to take the
1. A statement of their willingness to enter into an proper steps at the proper time and NOT in consequence
amicable settlement or alternative modes of dispute of his carelessness, inattention or willful disregard of the
resolution court processes
2. A summary of admitted facts ii. It must be due to some UNEXPECTED or UNAVOIDABLE
3. The issues to be tried/resolved hindrance/accident
4. The documents or exhibits to be presented
5. A manifestation of their having availed or their
intention to avail themselves of discovery
procedures/referral to commissioners
6. The number and names of the witnesses, and the
substance of their respective testimonies
WHAT IS THE Depends.
EFFECT OF
FAILURE TO 1. If plaintiff fails to appear: Cause for dismissal
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 20: Calendar of Cases

WHO KEEPS THE The clerk of court


CALENDAR OF
CASES?
WHAT CASES? 1. Pre-trial
2. Trial
3. Postponed/adjourned cases
4. Motions to set for hearing
WHAT CASES 1. Habeas corpus
ARE GIVEN 2. Election
PREFERENCE? 3. Special civil actions
4. Those required by law
HOW ARE CASES EXCLUSIVELY by raffle.
ASSIGNED?
Raffle is done in open session with notice given to interested
parties to watch

Rule 22: Computation of time

How is a period Basically, first day excluded and last day included
computed?
If the last day falls on a Saturday, Sunday or a legal
holiday, the time shall not run until the next working day
What is the Should an act be done which effectively interrupts the
effect of running of the period, the allowable period after such
interruption? interruption shall start to run on the day AFTER the notice
of the cessation of the cause thereof

The day of the act which caused the interruption shall be


EXCLUDED in the computation of the period

EXAMPLES:

Basic 1: Plaintiff files case on May 2. Defendant given notice May 10.
Defendant has until May 26 to file answer.

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

connection with investigations conducted by the


Rule 30: Trial said officer/body
4. Any justice of the SC or of the CA in ANY case or
WHEN IS TRIAL Upon entry of the case in the trial calendar, the clerk of investigation pending within the Philippines
CONDUCTED? court shall notify the parties of the date of the trial to
ensure that the parties receive the notice at least 5 Note: A prisoner sentenced to death, RP or life and who is
days before the date of trial confined in any penal institution shall not be brought
HOW IS A CASE A court may adjourn a trial from day to day and to any outside the penal institution for appearance/attendance
ADJOURNED/ stated time as the case may be unless authorized
POSTPONED?
LIMITATION: However, the court shall not have the power Note: A subpoena is made in the same manner as
to adjourn a trial for more than one month (for each personal/substituted service
adjournment) and the court cannot adjourn for more than 3 CAN A SUBPOENA Yes. On these instances:
months in all -> except when authorized in writing by the BE QUASHED?
Court Admin of the SC 1. Upon motion
WHAT ARE THE 1. Upon affidavit showing the importance of such evidence 2. If it is unreasonable and oppressive
REQUISITES OF 2. AND the due diligence has been used to procure the 3. The relevancy of the books, documents is not
THE MOTION TO evidence apparent
POSTPONE TRIAL 4. If the person who asks for the subpoena fails to
FOR ABSENCE OF HOWEVER, if the adverse party admits the facts to be advance the reasonable cost for the production of
EVIDENCE? given in evidence EVEN if he objects or reserves the the books, docs, etc
right to object to their admissibility, the trial shall not 5. A subpoena ad testificandum can be quashed on the
be postponed. ground that the witness is not bound by it
WHAT ARE THE 1. Upon affidavit/sworn certification that the presence of 6. The witness fees and kilometrage allowed were not
REQUISITES OF A the party/counsel is indispensable tendered when the subpoena was served
MOTION TO 2. AND that the character of his illness is such as to WHAT IF THE ARREST: The judge, upon proof of service and failure of
POSTPONE THE excuse his evidence WITNESS FAILS the witness, may issue a warrant of arrest for the witness
TRIAL FOR TO ATTEND?
ILLNESS OF CONTEMPT: It is also considered contempt of court if the
PARTY/COUNSEL witness fails to obey the subpoena
HOW ARE By subpoena! Rule 21
PARTIES EXCEPTION: Arrest and contempt does not apply to:
COMPELLED TO 1. Subpoena: A process directed to a person requiring
GO TO TRIAL? him 1. a witness who resides more than 100km from his
a. to attend and to testify at the hearing/trial of residence to the place where is to testify
an action 2. a prisoner who is not given permission by the court
b. or any investigation conducted by WHAT IS THE Rule: Trial limited to the issues stated in the pre-trial order
competent authority ORDER OF and shall proceed as follows UNLESS the court for special
c. or for taking his deposition TRIAL? reasons otherwise directs
2. Subpoena duces tecum: A person will be required to
bring with him any books, documents or any things 1. Plaintiff: adduce evidence in support of his
under his control complaint
WHO ISSUES THE 1. The court before whom the witness is required to 2. Defendant: adduce evidence in support of his
SUBPOENA? attend defense, counter-claim, cross-claim and third party
2. The court of the place where the deposition is to be complaint
taken 3. Third party defendant (if any): adduce evidence of
3. The officer or body authorized by law to do so in his defense, counterclaim, cross-claim and fourth
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

party complaint
4. Fourth party and so forth: adduce evidence of the 1. Swagman Hotels: Generally, the lack of cause of action may be
material facts pleaded by them cured by evidence presented during trial but it can only happen when
5. Party against whom any counterclaim/cross-claim the complaint indeed states a cause of action. If there is really none,
has been pleaded: adduce evidence n support of his then it cannot be cured by evidence presented during trial.
defense
6. Afterwards, the parties may then respectively Basically, a cause of action must EXIST but the complaint just failed to
adduce rebutting evidence ONLY allege the essential facts making up the cause of action
a. UNLESS the court, for good
reasons/justice, allows them to adduce Rule 32: Trial by commissioner
more evidence upon their original case
7. Upon admission of the evidence, the case shall be  FIRST WAY: With Consent: By written consent of both parties, the
deemed submitted for decision court may order any or all of the issues in a case to be referred to a
a. UNLESS the court directs the parties to commissioner to be agreed upon by the parties or to be appointed by the
argue or to submit their respective court
memoranda or any further pleadings o Commissioner: referee, auditor, examiner
CAN THE Yes. The parties to any action may agree in writing, upon  SECOND WAY: Without Consent: When the parties do not consent, the
PARTIES AGREE the facts involved in litigation and submit the case for court may, upon the application of either party or of its own motion, direct
TO A STATEMENT judgment on these statement of facts, without having to a reference to a commissioner in the following cases:
OF FACTS? introduce evidence o When the trial of an issue of fact requires the examination of a
long account on either side
If parties agree to ONLY some of the facts, the trial shall be o When the taking of an account is necessary for the information of
held as to the disputed facts the court before judgment, or for carrying a judgment or order
WHEN MAY A 1. If the willingness to discuss a possible compromise into effect
CIVIL ACTION BE is expressed by one or both o When a question of fact, other than upon the pleadings, arises
SUSPENDED? 2. If it appears that one of the parties, before the upon motion or otherwise, in any stage of a case, or for carrying a
ART 2030 commencement of the action, offered to discuss a judgment or order into effect
compromise and the other party refused the offer
WHAT CANNOT 1. Civil status of persons Rule 31: Consolidation:
BE 2. Validity of marriage/leg sep
COMPROMISED? 3. Any ground for legal separation CONSOLIDATION JOINDER OF CAUSES OF PERMISSIVE JOINDER OF
ART 2035 4. Future support ACTION: RULE 2, SEC 5 PARTIES: RULE 3, SEC 6
5. Jurisdiction of courts When actions involving A party in one pleading, All persons in whom or
6. Future legitime a common question of assert, in the alternative against whom any right
WHO GENERALLY Generally, the judge personally receives the evidence law or fact are pending or otherwise, as many to relief in respect to
RECEIVES THE before the court, it may causes of action as he or arising out of the
EVIDENCE? HOWEVER, in: order a joint may have same transaction or
hearing/trial or any series of transactions
1. Default hearings or all the matters in is alleged to exist,
2. Ex-parte hearings issue in the actions may join as
3. Cases where the parties agree in writing plaintiffs/defendants in
The court may order all one complaint, where
The clerk of court may receive the evidence. However, he the actions consolidated any question of law or
cannot rule on objections. The objections still have to be fact common to all
resolved by the court such
plaintiffs/defendants
CD: may arise in the
34
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

action evidence the plaintiff has allegations in the initiatory


NOTE: Here, the NOTE: Here, the party NOTE: Here, the parties presented pleading and not from
ACTIONS are just asserts the causes just join together evidentiary matters
consolidated of action he has in ONE basically as What is AFTER plaintiff rests his BEFORE a responsive pleading
pleading in that ONE defendants/plaintiffs done case, demurrer is filed is filed, a MTD is filed
action Nature Here, the judge has already The judge here is not concerned
Also, remember here received the evidence and with the truth/falsity of the
the two requisites: if he grants the demurrer, allegations. He only looks at the
then it means that the pleading.
1. Same transaction evidence is lacking to
2. Common question of support the cause of action Keyword: PRELIMINARY
law/fact OBJECTIONS before START of
Keyword: EVIDENCE TRIAL
Rule 33: Demurrer to evidence INSUFFICIENT to SUPPORT
COA
WHEN IS THE DEMURRER After plaintiff has completed the presentation of his
FILED? evidence, the defendant may move for dismissal Rule 34: Judgment on the Pleadings & Rule 35: Summary judgment
ON WHAT GROUND? Upon facts and the law, the plaintiff has shown NO
RIGHT TO RELIEF Note: Both are RULE 34: J ON PLEADINGS RULE 35: SUMMARY
WHAT IF THE MOTION OF The defendant will then present evidence motions JUDGMENTS
THE DEFENDANT IS Ground/Requisites 1. When an answer fails 1. No genuine issue
DENIED? to tender an issue on any material
WHAT IF THE MOTION IS The defendant shall be deemed to have waived the 2. When answer admits fact, except for the
GRANTED BUT THEN right to present evidence material allegations of amount of damages
REVERSED ON APPEAL (BY the adverse party’s 2. Moving party must be
PLAINTIFF) pleadings entitled to a
judgment as a
CD: matter of law

1. Republic v. Tuvera:
a. GR: Upon the dismissal of the demurrer in the appellate court, the What is done? Adverse party moves for Claimant:
defendant loses the right to present his evidence and the appellate the court to direct
court shall then proceed to render judgment on the merits on the judgment on the pleading At any time after the
basis of the plaintiff’s evidence (the answer which failed to pleading in answer has
2. Manila Banking Corp v. University of Baguio: IMPT: essential tender an issue/the answer been served, claimant
difference of LACK of CAUSE of ACTION and FAILURE TO STATE CAUSE OF that admitted) will move with support
ACTION affidavits, depositions,
admissions for a
LACK OF CAUSE OF ACTION FAILURE TO STATE CAUSE OF summary judgment in
ACTION his favor
Governing Demurrer to evidence Motion to dismiss (Rule 16)
rule (R33) Defendant:
Situation Where the evidence does Where the complaint does not
not sustain the cause of allege a sufficient cause of At any time, defendant
action that is alleged action may move with
supporting affidavits,
The basis here is the Determined from the depositions or
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

admissions for a
summary judgment in his Rule 36: Judgments, Final Orders and Entry thereof
favor
Nature Here, there is actually NO Here, although the WHAT IS THE FORM It is in writing, personally and directly prepared by the
ISSUE at all. pleadings on their face OF judge, stating clearly and distinctly the facts and the
appear to raise issues of JUDGMENTS/FINAL law on which it is based, signed by him, and filed by the
It is a judgment on the fact (like a denial/conflict ORDERS? clerk of court
facts as pleaded of factual allegations), if WHAT IS THE BA Finance:
it is shown by the support NATURE OF A FINAL
Only the CLAIMANT can file affidavits, depositions or JUDGMENT/FINAL A judgment/ final order disposes of the whole SM or
for judgment on the admissions that those ORDER? terminates a particular proceeding or action, leaving
pleadings issues are FAKE, the nothing to be done but to execute what has been
court shall render determined
judgment for whoever WHEN DOES A When no appeal, MR, motion for new trial is filed within
asks for it JUDGMENT BECOME the reglementary period, the judgment shall be entered
FINAL? by the clerk of court
Basically, it is a
judgment on the facts The date of finality of the judgment/final order shall be
as summarily proven deemed to be the date of its entry
by the A/D/A JUDGMENT Judgment may be for one or more several
FOR/AGAINST ONE plaintiffs/defendants
Case Doctrines: OR MORE SEVERAL
PARTIES AND Separate Judgments: When more than one claim for
1. Ontimare v. Elep: SEPARATE relief is presented in an action, the court at any stage,
a. Issues in a summary judgment ARE APPARENT but in fact JUDGMENTS upon a determination of the issues material to a
proven to be fake as per the affidavits, depositions or particular claim and all counterclaims arising out of the
admissions transaction or occurrence, may render a separate
b. An issue is ONLY genuine when it requires the presentation of judgment disposing of such claim.
evidence
c. If a summary judgment is rendered AFTER the presentation of The judgment will terminate the action with respect to
evidence of the parties in a full blown trial, then the rules on the claim so disposed of and the action shall proceed as
summary judgment does not apply since obviously, the judgment to the remaining claims.
was on the merits
2. Asian Construction v. PCIB: When this happens, the court by order may stay the
a. The determinative factor in a motion for summary judgment is the enforcement of the separate judgment until the
presence/absence of a genuine issue as to any material rendition of a subsequent judgment or judgments and
fact
b. When the facts as pleaded appear uncontested or undisputed, Judgment against entity w/o juridical personality:
then there is no real or genuine issue as to the facts and summary The judgment will set out their individual/proper names
judgment is proper if known.
c. When the facts as pleaded by the parties are disputed,
proceedings for summary judgment cannot take the place of trial
SEVERAL In an action against several defendants, the court may,
JUDGMENTS: when a several judgment is proper, render judgment
against one or more of them, leaving the action to
proceed against the others
KINDS OF 1. Judgment on the pleadings
36
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

JUDGMENTS 2. Judgment on demurrer parties/successors in interest, that only is


3. Summary judgment deemed to have been adjudged in a former
4. Judgment on default judgment/final order which appears upon
5. Judgment after ex parte presentation of evidence its face to have been so adjudged, or which
(failure to appear at pre-trial) was actually and necessarily included
KINDS OF ORDERS 1. Order to dismiss under rule 16 therein/necessary thereto
2. Order to dismiss under rule 17 2. Foreign: (foreign tribunal’s judgment)
3. Order to dismiss under rule 18 (failure to appear at a. If its upon a specific thing, the judgment/fo
pre-trial) is conclusive upon the title to the thing
4. Order to dismiss under rule 29 sec 5 b. If its against a person, the judgment/fo is
KINDS OF ORDERS AS 1. Judgment disposing of the entire claim presumptive evidence of a right as between
TO CLAIMS 2. Judgment only disposing of a certain claim (out of the parties and their successors in interest
others) by subsequent title
KINDS OF ORDERS AS Judgments not stayed on appeal (rule 39 Sec 4) In any case, the judgment/fo may be repelled by
TO HOW EXECUTED a. Judgments that cannot be stayed on evidence of:
appeal: actions for: a. Lack of jurisdiction
i. Injunction b. Lack of notice to the party
ii. Accounting c. Collusion
iii. Support d. Clear mistake of law or fact
iv. Other judgments declared WHEN MAY A 1. Judgments may be amended BEFORE it becomes
immediately executory JUDGMENT BE final and executory
2. Judgments for money (rule 39 sec 9) AMENDED? a. Judgments become final and executory 15
3. Judgments for specific acts (rule 39 sec 10) days after notice of judgment is received: it
4. Special judgments is by operation of law
EFFECTS OF 1. Local (rule 39 sec 47) Example:
JUDGMENTS AND a. If judgment/final order is against:
FINAL ORDERS i. A specific thing A filed a collection case against B. B lost. Court entered
ii. In respect to the probate of a will judgment on April 3, 2010. B received notice of
iii. The administration of the estate of judgment on April 10, 2010. In this case, if B does not
a deceased person appeal, the judgment will become final and executory
iv. In respect to the on April 26, 2010.
personal/political/legal condition of
a person or his relationship to GR: When a judgment becomes final and executory, it
another cannot be amended anymore even if it is perceived
The judgment/final order is conclusive upon the title to to be wrong (In law or in fact)
the thing, the will or the condition or status of the
person EX:
b. In other cases, the j/fo is conclusive
between the parties and their 1. Judgments nunc pro tunc: Correction of errors
successors in interest by title in the judgment (like the non entry of the
subsequent to the commencement of the judgment in the entry book)
action/special proceeding, litigating for the 2. Void judgments
same thing and under the same title and 3. In the interest of justice (In Industrial Timber,
capacity with respect to the matter directly it was a labor case so the court carved out an
adjudged or with respect to any matter exception)
that could’ve been raised in relation thereto WHAT IS A Remember, an amended judgment is an entirely new
c. In any other litigation between the SUPPLEMENTAL decision and supersedes the original decision
37
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

JUDGMENT?
However, a supplemental judgment only serves to
bolster or add something to the main decision.

CD:

1. Del Rosario v. far East Bank and Trust: Difference of Bar by prior
judgment and conclusiveness of judgment

Bar by prior judgment Conclusiveness of judgment


Makes the judgment rendered in the Situation where the judgment in the
first case an absolute bar to the prior action operates as an estoppel
subsequent action because the only as to the matters ACTUALLY
judgment is conclusive not only as determined or which were
to matters offered and received to necessarily included therein
sustain it but also as to any other
matter which might have been
offered for that purpose
This is a ground for a motion to This is not a ground for a MTD
dismiss

Requisites of res judicata (bar by prior judgment)

1. Finality of the former judgment


2. Court had jurisdiction over the SM and the parties
3. It must be a judgment on the merits
4. There must be identity of parties, subject matter and causes of action
as between the two actions

38
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

REMEDIES against Judgments or final orders (to be edited for finals) NOTE: A motion for extension of time to file a motion for
new trial/reconsideration is not allowed
1st remedy: Before finality: Rule 37: New Trial/Reconsideration SECOND MR? Second MR: Second motion for new
SECOND MNT? GR: Generally, not allowed trial:
Motion for Motion for New Trial EX: Equitable grounds (see
Reconsideration PCI Leasing) GR: A motion for new trial
GROUNDS 1. Excessive damages 1. FAME which ordinary shall include ALL grounds
awarded prudence could not then available and those
2. Insufficient evidence to have guarded against not included are deemed
justify decision/final waived.
order Fraud: Extrinsic fraud
3. Decision or final order (happened outside of the As an exception, a second
contrary to law trial) -> Party prevented one is allowed: Requisite:

Shall point out specifically Accident: Actual surprise 1. Must be based on a


the findings or conclusions that prevented one from ground not
of the judgment or final appearing at trial existing/available when
order the first motion was
Mistake: Must be of fact made

Excusable Negligence Time to file:

Supported by: affidavits of Before finality, excluding


merits the time during which the
first motion had been
2. Newly discovered pending
evidence which movant ACTIONS UPON THE 1. Grant: TC may amend 1. Grant: judgment will be
could not have with MOTION FOR the judgment set aside and a new
reasonable diligence, RECON/NEW TRIAL accordingly trial will be granted
have discovered and 2. Deny: unappealable: a. The original
produced at trial and Remedy: an appeal judgment will
which if presented, from the be vacated
would probably alter judgment/final order b. The recorded
the result itself evidence taken
upon the
Supported by: affidavits of former trial
the witness by whom such shall be used
evidence is expected to be at the new trial
given or duly authenticated if its important
documents which are to establish the
proposed to be introduced issues
in evidence 2. Deny: unappealable:
WHEN FILED (BEFORE FINALITY) Within the period for taking an appeal Remedy: an appeal
from the
NOTE: Appeal period is interrupted by a timely motion for judgment/final order
new trial/reconsideration itself
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

PARTIAL GRANT 1. The court may order a new trial/grant IMPT: docket fees must also be paid within the period for
reconsideration as regards the severable issues taking an appeal
without interfering with the judgment or final Effect of  IF APPEAL BY NOTICE: A party’s appeal by notice is
order perfection of deemed perfected as to him upon the filing of the
2. The court may: appeal notice in due time
a. Enter a judgment or final order as to the o The court loses jurisdiction over the case
rest of the issues upon perfection of the appeals filed in due
b. Stay the enforcement of the final time and the expiration of the time to appeal
order/judgment until after the new trial of other parties
PRO FORMA  An MR/New Trial is deemed pro forma if it does not
MR/Motion for specify the finding or conclusions in the judgment  IF APPEAL BY RECORD: If its appeal by record, the
new trial: which are not supported by evidence/contrary to law, appeal is deemed perfected as to the appealing party
making express reference to the pertinent with respect to the SM thereof upon the approval of
evidence/legal provisions the record on appeal
o The court loses jurisdiction only over the SM
 If it is pro forma, then it does not interrupt the period thereof upon the approval of the records on
to appeal appeal filed in due time and the expiration of
 Marina Properties: Although an MR may reiterate the time to appeal of other parties
issues already passed upon, that by itself does not
make it pro forma
o However, where the circumstances of a case  In either case, prior to the transmittal of the original
do not show an intent on the part of the record/record on appeal, the court (lower court) may:
pleader to merely delay and his motion o issue orders for the protection/preservation
reveals a bona fide effort to present of the rights of the parties which do not
additional matters/reiterate his arguments, involve any matter litigated by the appeal
the courts should not swiftly declare the o approve compromises
motion pro forma o permit appeals of indigent litigants
o order execution pending appeal (r39 s2)
o Allow withdrawal of appeal
Rule 40: From MTC to RTC

Where to appeal An appeal from a judgment/final order of a MTC may be Procedure in the  Upon the receipt of the complete record/record on
taken to the RTC exercising jurisdiction over the area to RTC appeal, the clerk of court of the RTC shall notify the
which the MTC pertains parties of such fact
 Within 15 days from such notice, it shall be the duty
Note: of the appellant to submit a memorandum which shall
APPELLANT: appealing (yung talo) briefly discuss the errors imputed to the lower court,
APPELLEE: adverse (yung panalo) a copy of which shall be furnished by him to the
Title remains (if it was Uy v. Sy in MTC, then its going to adverse party
be Uy v. Sy in the RTC on appeal) o FAILURE OF APPELLANT TO SUBMIT
When to appeal Within 15 days after notice to the appellant of the MEMORANDUM: ground for appeal’s dismissal
judgment/final order  Within 15 days from receipt of the memorandum, the
adverse party may file his memorandum
Within 30 days after notice to the appellant if a record on  Upon the filing of the memorandum of the appellee,
appeal is required (special proceedings/in other cases) or the expiration of the period to do so, the case shall
How to appeal Filing a notice of appeal with the court that rendered the be considered submitted for decision. RTC will then
judgment (with the MTC) decide
40
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Appeal from MTC 1. If an appeal is taken from an order of the lower court
order of dismissing the case without a trial on the merits,
dismissal the RTC may either affirm or reverse it as the case
may be
a. If the RTC affirmed dismissal based on lack of
jurisdiction (of the MTC) and the RTC had
jurisdiction, the RTC shall try the case on the
merits (it’s as if it was filed there)
b. If the RTC affirmed dismissal based on some
other grounds, Rule 42 (?)
c. If the RTC reverses the MTC, then the case
will be remanded to the MTC for further
proceedings
2. If the case was tried on the merits by the lower court
without jurisdiction over the SM, the RTC on appeal
shall not dismiss the case if it has original
jurisdiction thereof but it shall decide the case
without prejudice to the admission of amended
pleadings/additional evidence

41
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 41 (RTC to CA)


How done? Filing a petition for review (Rule 42)
WHAT IS THE SUBJECT Taken from a:
OF APPEAL? 3. Appeal by certiorari
1. Final order that completely disposes of the case How done?
2. A particular matter in the case
WHEN IS AN APPEAL 1. An order denying a petition for relief or any similar When questions of law are raised or involved, it shall be to the SC
NOT ALLOWED? motion seeking relief from judgment under rule 45
2. An interlocutory order WHAT IS THE PERIOD 15 days from notice of the judgment or final order appealed from
O (order) 3. An order disallowing or dismissing an appeal FOR AN ORDINARY
4. An order denying a motion to set aside a judgment by APPEAL? INTERRUPTION: a timely motion for new trial or reconsideration
Denying petition for consent, confession or compromise on the ground of fraud,
relief mistake, duress or any other ground vitiating consent NO EXTENSION FOR MR/MNT: can’t file a motion for extension
Interlocutory order 5. An order of execution of time to file MNT or MR
Dismissing Appeal
6. A judgment or final order for or against one or more
Denying a motion to *Note: If habeas corpus cases are appealed, it shall be taken 48
several parties or in separate claims, counterclaims, cross-
set aside a hours from notice of the judgment or final order.
judgment by
claims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom WHEN PERFECTED IF by notice of appeal: perfected upon the filing of the notice
Consent
7. An order dismissing an action without prejudice (with the RTC) and payment of lawful fees
Execution
Dismissing an
action without In these circumstances, what is the remedy? IF by record on appeal: upon approval of the record on appeal
prejudice filed in due time (with the RTC)
Against one or more File an appropriate civil action under rule 65 LOSS OF IF by notice of appeal: the court (RTC) loses jurisdiction over
several parties JURISDICTION the case upon the perfection and the expiration of the time to
appeal of other parties
EFFECT OF AM 07-7- Rule 37 Sec 9 now applies to an order denying a MNT or an MR NOA: P+EXP
12-SC ROA: A+EXP IF by record: the court loses jurisdiction ONLY over the subject
Remedy: When an order denying a MNT or an MR is made, the matter thereof upon the approval of the records on appeal
remedy is an appeal from the judgment itself or final order and the expiration of time to appeal of the other parties
(which is the subject of the MR/MNT) RESIDUAL POWERS In both instances (notice/record), the court (lower court) has
residual powers prior to the transmittal of the original record
Exception (when you can’t appeal an order denying an MR): If I-A-P-O-A (NoA) or record on appeal (RoA):
the subject of the MR is interlocutory (ex: When you’re the
defendant in a case, in case of filing an answer, you file a MTD, 1. Issue orders for the protection and preservation of
when MTD is denied, defendant can file an MR.) -> Here, if the rights of the parties which do not involve any matter
MR is denied, the order denying the MTD is merely an litigated by the appeal
interlocutory order. It’s not a final order. Your remedy is rule 65 2. Approve compromises
certiorari, and not appeal. 3. Permit appeals of indigent litigants
MODES OF APPEAL 1. Ordinary Appeal 4. Order execution pending appeal (Sec 2 R39)
5. Allow withdrawal of appeal
RTC decision in the exercise of its original jurisdiction to DISMISSAL OF APPEAL Prior to the transmittal of the original record or record on
CA appeal to the appellate court, the trial court may dismiss:

How done? Filing a notice of appeal with the court which a. Taken out of time
rendered the judgment and serving a copy of it to the adverse b. Non-payment of docket-other lawful fees
party
Note: The trial court may do this motu proprio or on motion
Record on appeal required only in special proceedings and/r or Remedy of aggrieved party: Rule 65
separate appeals when required. WHAT HAPPENS Judgment becomes final and executory
WHEN APPEAL IS NOT
2. Petition for review FILED IN TIME?
WILL JUDGMENT BE Yes. Perfected appeal under Rule 41 will stay the judgment.
RTC decision in the exercise of its appellate jurisdiction STAYED?

42
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Cases (important cases, he loves questions about appeal) 5. Kho v. Camacho (Notice of appeal does not require approval)

1. Silverio Jr v. CA: The denial of an MR of an order dismissing a complaint is  The RTC cannot dismiss an appeal on the ground that there are only
NOT an interlocutory order. It is a final order. It is therefore appealable. If questions of law
appeal is not proper, like when it’s interlocutory, it’s rule 65.  This is because whether an appeal involves only a question of law and/or
fact is left to the determination of the appellate court, and not by
Quick facts of the case: In the settlement of S’s estate, RTC issued an omnibus the court which rendered the subject decision appealed from.
order requiring N to vacate the property belonging to S’s estate. N filed an MR  The role of the judge who issued the order appealed from (in the RTC) is to
against the order which was denied. N filed a notice of appeal. The RTC denied it approve or disapprove the record on appeal (when required) and the
and the CA reversed. SC agreed with the RTC, reasoning that N availed of the appeal bond, but not a notice of appeal since a notice of appeal DOES
wrong remedy because you can’t appeal an interlocutory order. The remedy was NOT REQUIRE the approval of the judge.
rule 65. The estate wasn’t partitioned yet and the order was just for N to vacate.
6. Custodio v. CA: An appellee (the one who won in the lower court), who has
Difference of final order and interlocutory order not himself appealed may not obtain from the appellate court any affirmative
relief other than what was granted in the lower court’s decision
Interlocutory Order Final order a. EXCEPTION: (Citytrust) A and B, as solidary debtors, lost a
one which does not dispose of the case one that disposes of the subject matter collection case to D. A appealed but it was dismissed. B appealed
completely but leaves something to be in its entirety. successfully and because of that, the interest rate as regards B
decided upon was reduced. The SC held that even if A did not successfully
Generally non-appealable: BUT if Appealable appeal, the reduced interest rate should also be applicable to it,
rendered with GADLEJ: Rule 65 may lie. under the principle of equity

2. Manila Memorial Park v. CA: Effect when MR is filed on last day of 15 day
period: Imaginary 1 day left -> BUT this is changed by Neypes (as discussed
below)

3. Neypes v. CA: FRESH PERIOD RULE

 A filed a case against B. It was dismissed on April 10, 2007.


 A received a copy of the order of dismissal on April 12, 2007.
 On April 27, 2007 (the last day), A filed an MR. It was dismissed.
 Thereafter, A appealed on May 3, 2007.
 CA dismissed the appeal on the ground that it was too late. It ruled that
the 15 day period to appeal should have been counted from April 12,
2007, the day they received the order dismissing the complaint.
 SC ruling: Now you get a fresh 15 day period once your MR/MNT is
denied. 15 days from the receipt of the order of the court dismissing a
MNT/MR.
o However, this 15 day fresh period to appeal is non-
extendible
 40, 41, 42, 43, 45 -> when your MR is denied, you also have new 15 day
period except that under 40 and 41, the fresh period is non-
extendible

4. Trans International v. CA: The court may extend the time or allow the
perfection of the appeal beyond the prescribed period if it be satisfactorily
shown that there is justifiable reason, such as fraud, accident, mistake or
excusable negligence, or similar supervening casualty, without fault of
the appellant, which the court may deem sufficient reason for relieving him
from the consequences of his failure to comply strictly with the law.
43
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 42: Petition for Review from the RTC to the CA notice. Just because CA required respondent to file a comment
doesn’t mean it gave the petition due course
WHEN TAKEN? When the decision of the RTC is in the exercise of its appellate WHEN PERFECTED? Upon timely filing and the payment of corresponding docket
jurisdiction  file verified petition for review in the CA and other lawful fees
LOSS OF RTC loses jurisdiction over the case upon perfection of the
Ross Rica Sales: A filed a case of unlawful detainer against B JURISDICTION appeal and the expiration of the time to appeal of the other
in the MTC. B lost. B appealed the decision to the RTC (Rule parties
40). B lost in the RTC. His remedy is under Rule 42. RESIDUAL POWERS RTC has residual powers before the CA gives the petition due
course
Note: The peculiar thing in this case is that when B lost in the
RTC, he filed a notice of appeal with the RTC (Rule 41) then he (IAPOA)
filed an MR with the RTC too. SC stated that the MR cured the
defective remedy initially availed of by B. 1. Issue orders for the protection and preservation of rights
of the parties which do not involve any matter litigated
N.B. If case starts with MTC, Rule 42 comes into play because by the appeal
the RTC will exercise its appellate jurisdiction 2. Approve compromises
3. Permit appeals of indigent litigants
Grounds: 4. Order execution pending appeal (Sec 2 R39)
1. Error of fact 5. Allow withdrawal of appeal
2. Error of law (pure questions of law may be raised) WILL A PETITION (Situation: B lost a collection case in the MTC. He lost on
3. Mixed errors of fact and law UNDER RULE 42 appeal to the RTC. He filed a petition for review under rule 42
PERIOD 15 days either
STAY THE to the CA. In this case, the judgment can’t be executed while
JUDGMENT? he is appealing it)
from notice of the decision sought to be reviewed OR
from notice of the denial of petitioner’s MNT or MR GR: Yes. When appeal is perfected, it shall stay the judgment
or final order
Note: (2 extensions) EX:
Upon motion: 15 days additional extension can be availed of 1. Civil cases decided under rules of summary procedure (e.g.
THEN another 15 day extension after that (for the most forcible entry, unlawful detainer)
compelling reasons) 2. When CA, law or RoC provide otherwise
CAUSE FOR Note: The RoC provides that these constitute sufficient ground
DISMISSAL for dismissal. Case:

1. Failure to pay docket/lawful fee/costs 1. Ditching v. CA: The CA can dismiss a petition when it’s filed beyond the
2. Failure to comply with proof of service of the petition reglementary period EVEN IF it already gave the petition due course. This is
3. Failure to comply with certification for non-forum because perfection of an appeal within the reglementary period is a
shopping jurisdictional requirement.

Sec 4 also provides that CA may dismiss the petition upon filing
when its: (PPQ)

1. Patently without merit


2. Prosecuted for delay
3. Questions raised are too unsubstantial
WHEN IS PETITION When the CA finds prima facie that the lower court has
GIVEN DUE committed an error of fact or law that will warrant a reversal
COURSE? or modification

Note: Sec 4 provides also that when the petition is filed, CA


may require respondent to file a comment within 10 days from
44
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 43: Quasi Judicial Agencies to CA 1. Patently without merit


2. Prosecuted for delay
WHEN TAKEN? When judgment or final order is by the following quasi-judicial 3. Questions raised are too unsubstantial
agencies (Note: CTA not included anymore and look at RoC for WHEN IS PETITION When the CA finds prima facie that the QJ agency concerned
complete list, will only note down the important/easy to GIVEN DUE has committed an error of fact or law that will warrant a
remember) COURSE? reversal or modification. If no prima facie showing, dismissed.

1. CSC Finding of fact of QJ agency: When supported by substantial


2. SEC evidence, it shall be binding on the CA.
3. Office of the President Effect of rule 43 GR: The filing of a petition under rule 43 will NOT stay the
4. Land Registration Authority on judgment judgment, award, or final order (as compared to Rule 41, which
5. Social Security Commission does)
6. GSIS
7. Board of Investments EXC: when CA directs otherwise or when law directs otherwise
8. Voluntary Arbitrators authorized by law
Remedy to stay judgment: Apply for TRO
Grounds:
1. Question of fact Samaniego doctrine: an appeal will not prevent the OMB
2. Question of law decision from being executory (penalty is not material
3. Mixed question of fact and law anymore) even if appellant gets an injunction
DECISIONS UNDER REMEDY for decisions under the Labor Code (by NLRC,
THE LABOR CODE Secretary of Labor, Director of Bureau of Labor Relations):
1. Fabian v. Desierto and Lanting
Petition for certiorari to the CA under Rule 65 a. Appeals from the decisions of the Office of the Ombudsman in
DECISION OF DOJ REMEDY for decisions of DOJ Sec in petitions for review of administrative disciplinary cases should be taken to the Court of
SEC prosecutor’s resolutions: Appeals under the provisions of Rule 43 (OMB administrative
disciplinary decisions -> Rule 43 to the CA)
Petition for Certiorari to the CA under Rule 65 b. Remedy from decision of OMB finding PC (through a resolution) in
PERIOD 15 days either criminal cases -> Rule 65 to the SC

from notice of the decision sought to be reviewed OR


from notice of the denial of petitioner’s MNT or MR

Note:
Only one MR shall be allowed
(2 extensions)
Upon motion: 15 days additional extension can be availed of
THEN another 15 day extension after that (for the most
compelling reasons
Cause for Note: The RoC provides that these constitute sufficient ground
dismissal for dismissal.

1. Failure to pay docket/lawful fee/costs


2. Failure to comply with proof of service of the petition
3. Failure to comply with certification for non-forum
shopping

Sec 8 also provides that CA may dismiss the petition upon filing
when its: (PPQ)
45
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 45: Appeal by certiorari to the SC Not applicable in criminal cases where the penalty imposed is
death, RP or life imprisonment
WHEN TAKEN? Decisions of these courts:

1. CA 1. Nunez v. GSIS Family Bank


2. Sandiganbayan
3. CTA  The remedies of appeal and certiorari are mutually exclusive and
4. RTC not alternative or successive. (Filing of one will be a bar to the other)
PERIOD 15 days from notice of judgment or decision or denial of MNT or  The distinctions between Rules 45 and 65 are far and wide. The most
MR apparent is that errors of jurisdiction are best reviewed in a special
civil action for certiorari under Rule 65 while errors of judgment
Extension: Upon motion for extension, only a one time 30 day can only be corrected by appeal in a petition for review under Rule
extension. However, SC can do what it wants and relax this. 45.
 However, this Court, in the interest of justice, may treat a petition
Grounds: Only PURE QUESTIONS OF LAW (See CRBC v. CA for certiorari as having been filed under Rule 45 if the same was
below) filed within the reglementary period for filing a petition for review.
OTHER REMEDIES Petitioner may include Nunez filed the petition on time both under Rules 45 and 65
TO BE INCLUDED IN 1. A writ of preliminary injunction therefore it can still be given due course
THE PETITION? 2. Other provisional remedies
CAUSE FOR Note: The RoC provides that these constitute sufficient ground 2. CRBC v. CA: When motion to dismiss is based on failure to state cause of
DISMISSAL for dismissal. action, there is no question of fact. It only raises questions of law. The proper
remedy for the aggrieved party is rule 45 and not rule 41 when this motion to
1. Failure to pay docket/lawful fee/costs dismiss is denied.
2. Failure to comply with proof of service of the petition
3. Failure to comply with certification for non-forum Question of Fact Question of Law
shopping Doubt or difference arises as to the truth exists when there is doubt or
or falsehood of facts OR when the controversy as to how the law is applied
Sec 5 also provides that SC may dismiss the petition upon filing question requires the study of the whole to a certain state of facts
when its: (PPQ) evidence, considering the credibility of
witnesses, relevancy of surrounding examples:
1. Patently without merit circumstances and the like.
2. Prosecuted for delay  determining if complaint states a
3. Questions raised are too unsubstantial KEYWORD: review of evidence to cause of action (Note: Under Rule
IS REVIEW A No. This will be granted only if there are special and important determine truth/falsity of facts 16 MTD)
MATTER OF RIGHT? reasons therefore. The following, even if not controlling, are the  issue of jurisdiction like w/n a court
guidelines has jurisdiction
 determining if a petition for relief
1. When lower court decided a question of substance not from judgment was properly
yet determined by the SC granted
2. When lower court decided a question of substance not
in accordance with the law or jurisprudence
3. When the lower court departed from the accepted and
usual course of judicial proceedings
4. When the lower court allowed a departure from the
accepted and usual course of judicial proceedings
ADDITIONAL IN deciding whether to dismiss, deny or give due course to the
PLEADINGS AND petition, the SC may require or allow the filing of such
DOCUMENTS pleadings, briefs, documents, etc as it may deem necessary
APPLICABILITY Rule 45 applicable to both civil and criminal cases

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 38: Petition for relief from judgment


Mistake: Must be a mistake of fact
WHAT ARE THE 1. Petition for relief from judgment (Rule 38)
REMEDIES AFTER 2. Annulment of judgment (Rule 47) Negligence to be excusable must be one which ordinary
FINALITY? 3. Petition for certiorari (Rule 65) diligence and prudence could not have guarded against.
WHEN IS THIS FINAL JUDGMENT: If a court enters a judgment against a
REMEDY AVAILABLE party through fraud, accident, mistake or excusable negligence 2. Meritorious defense
(FAME) COURT ACTION REQUIRE ANSWER: Once the petition is filed and it is
sufficient in form and substance to justify relief, the court shall
LOSS OF APPEAL: When court enters judgment against a an issue order requiring the adverse parties to file an answer
party and the party is prevented from taking an appeal through (15 days)
FAME
 In both cases, he will file the petition in the court that AFTER ANSWER IS FILED: The court will hear the petition
rendered the decision and if it finds that the allegations in it are not true, it shall
dismiss the petition.
Example: A filed a collection case against B in RTC Manila. A
won and the decision became final. If grounds are present, B IF COURT FINDS MERIT: It shall set aside the judgment or
must file the petition for relief in RTC Manila, the court that final order or other proceedings. Thereafter, the case will stand
rendered the judgment as if it was never taken. The court shall then proceed to
hear and determine to the case as if a MNT/MR was
Note: You can only file petition for relief from judgment in the granted.
RTC or the MTC (not in the CA or SC)
WHERE DENIAL OF AN APPEAL IS SET ASIDE: The lower
Valencia v. CA: A petition for relief from judgment is only court shall be required to give due course to the appeal and to
available against a final and executory judgment. elevate the record of the appealed case as if a timely and
proper appeal was made.
If the RTC/MTC decision subject of the petition for relief from PRELIMINARY The court, which the petition for relief was filed, may grant a
judgment has not yet attained finality because of a timely INJUNCTION preliminary injunction as may be necessary upon filing by the
appeal or MR, then this remedy is NOT available. petition of a bond in favor of the adverse party, conditioned
PERIOD TO FILE Within 60 days after petition learns of the judgment, final order that if the petition is dismissed or the petitioner fails on the trial
or other proceeding but NOT more than 6 months after such of the case upon its merits, he will pay the adverse party all
judgment was entered or such proceeding was taken damages and costs that may be awarded to him by reason of
the issuance of the injunction.
“Since the proceeding was taken vs. entry of judgment”
HOWEVER, the injunction shall not operate to discharge or
Not all decisions are entered. For example, a compromise extinguish any lien which the adverse party may have acquired
judgment requires no entry of judgment. From the time it is upon the property of the petitioner.
rendered, it is already executory. In this case, the period shall
be counted from the time the compromise judgment was made. 1. Gomez v. Montalban

Victory Liner v. Malinias: Time for filing is strictly followed. If  Gomez filed a collection caseagainst Montalban in RTC. Montalban was declared
it elapses, the petition CANNOT be given due course. in default for failing to file her answer on time. Court ruled in favor of Gomez
GROUNDS 1. FAME  Montalban filed a petition for relief from judgment, alleging that there was
defective summons because the summons was served on a certain dela Torre,
Fraud: must be extrinstic, the kind which prevented the who allegedly was not authorized to receive summons (which led to her not
aggrieved party from having a trial or presenting his case being able to answer)
to court. o She claimed she had valid defenses and even claimed that the RTC did
not have jurisdiction as the amount was only cognizable by the MTC
Accident: Must be fortuitous, without any fault on part of (40k was the principal amount claimed) The petition for relief was
the one asking for relief
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

granted. RTC set aside its decision for lack of jurisdiction without
prejudice to re-filing in the MTC
 Gomez went to the SC under rule 65

Issue: Did the RTC have jurisdiction? Was Montalban’s remedy proper given the
fact that it was filed within the period for filing a motion for reconsideration/appeal?

 Yes, RTC had jurisdiction. The principal loan was 40k with 15% interest but it
already grew to 239k. When it grew to 239k (because of interest), that’s when
Gomez filed the complaint. (Back then, it was 200-300 for RTC)
o assuming that RTC had no jurisdiction on account of the defective
service, the remedy of Montalban should have been an MR/MNT or
maybe even under rule 65
 In Montalban’s petition for relief, she contended that judgment as entered
against her through mistake or fraud due to alleged defective summons.
 A petition for relief from judgment is an equitable remedy that is
allowed only in exceptional cases where there is no other available or
adequate remedy. In this case, she had so many other remedies available.
 When a party has another remedy available to him, which may be either a
motion for new trial or appeal from an adverse decision of the trial court, and
he was not prevented by fraud, accident, mistake or excusable negligence from
filing such motion or taking such appeal, he cannot avail himself of this
petition.
 Indeed, relief will not be granted to a party who seeks avoidance from the
effects of the judgment when the loss of the remedy at law was due to his own
negligence; otherwise the petition for relief can be used to revive the right to
appeal which had been lost thru inexcusable negligence
 It also noteworthy that Montalban did not avail of the remedies of a defaulted
party
 In addition, a petition for certiorari to declare the nullity of a judgment by
default is also available if the trial court improperly declared a party in default,
or even if the trial court properly declared a party in default, if grave abuse of
discretion attended such declaration.

What is the remedy when a petition for relief from judgment is granted?

Rule 45: If questions of law involved


Rule 41: If there also questions of fact involved

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 47: Annulment of Judgments or final orders and resolutions ANNULMENT OF annulment shall set aside the questioned judgment or final
JUDGMENT order or resolution and render the same null and void WITHOUT
WHEN TAKEN? Decisions/Final orders of RTC: This remedy is still available prejudice to the original action being re-filed in the proper court
even if the judgment has been final and executory
Purcon v. MRM: IF GROUND IS EXTRINSIC FRAUD: The court may on
Only MTC/RTC Who annuls? The CA annuls. motion, order the trial court to try the case as if a timely motion
decisions can be for new trial has been granted (CA will tell the RTC to try it
subject of However, Sec 10 provides for this: again or RTC will tell MTC to try it again)
Annulment of
SUSPENSION OF The prescriptive period for re-filing of the original action shall
Judgment
Judgments and final orders of MTCs shall be annulled in the RTC PRESCRIPTIVE be deemed suspended from the filing of such original action
having jurisdiction over the MTC. (meaning, if MTC decision is PERIOD until the finality of the judgment of annulment.
sought to be annulled, file it with the RTC)
HOWEVER the period will not be tolled where the extrinsic fraud
Reliefs Available (Sec 9) is due to the plaintiff in the original action.

The judgment of annulment may include the award of damages, Victory Liner v. Malinias
attorney’s fees and other relief.
 Malianas’ car collided with Victory Liner’s bus. Malianas sued Victory Liner for
If the questioned judgment or final order or resolution has damages to his truck. MTC ruled in favor of Malianas.
already been executed, the court may issue such orders of  Victory Liner filed an MR but it was declared to be a mere scrap of paper for failure to
restitution or other relief as equity may warrant. include notice of hearing therefore it did not toll the period to appeal (therefore it
GROUNDS was final and executory) He then went to the RTC by certiorari assailing the denial of
1. When ordinary remedies of MNT, appeal or petition for
(COMBINED his MR. Also dismissed.
relief are no longer available through no fault of the
SECTION 1 AND 2)
 Victory Liner filed a petition for relief from judgment against the MTC denial of his
petitioner
MR. It was denied for being filed out of time.
2. Either EXTRINSIC FRAUD or LACK OF JURISDICTION (of  Victory Liner also filed a petition for annulment of judgment under rule 47 (with the
the RTC) CA) CA ruled that the extrinsic fraud grounds raised by Victory Liner had already
been availed of in its earlier petition for relief from judgment. Determined, Victory
Note: Extrinsic fraud shall not be a valid ground IF it was Liner went to the SC under Rule 45
already availed of OR could have been availed of in a motion for
new trial or petition for relief Issue: Should Victory Liner’s petitions be granted?

Extrinsic Fraud: any fraudulent act of the prevailing party in the  First, what should have petitioner done?
litigation which is committed outside of the trial of the case. o It could have assailed MTCs denial of the MR under rule 65 alleging
PERIOD FOR FILING 1. IF based on extrinsic fraud: Within 4 years from the GADLEJ.
discovery of the fraud o It could’ve filed under rule 38, seeking that the MTC allow the appeal
2. IF based on lack of jurisdiction: Before laches or despite the finality of judgment on the ground that it was prevented from
taking an appeal due to FAME
estoppel bars its filing
 What he did was file a notice of appeal even if it was stated that the decision was
PARTIES AND Islamic Da’Wah: A non-party to the judgment may file this already final and executory due to the defective MR. This was wrong. Also, it was
CONTENTS petition as long as he can prove his allegation that the only after the notice of appeal was denied that VL pursued rule 38. Unfortunately,
judgment was obtained through FAME or that the court did not this was filed 16 months after the rendition of the judgment sought to be set aside
have jurisdiction. and 14 months after the judgment was declared final and executory
 As regards the Rule 47 petition, VL went to the CA to annul the RTC ruling as regards
It must be verified and also include a certification for non-forum its petition for certiorari with a half-hearted attempt to also include the MTC ruling.
shopping However, this is incorrect because an action to annul a judgment or final order of the
COURT ACTION If there is no substantial merit to the petition, it can be MTC should be filed with the RTC and NOT the CA.
dismissed outright. o Possible remedy for RTC dismissal of petition for certiorari: Rule 41 appeal
 As regards CA’s reasoning in dismissing the rule 47, the SC stated that the rule 38
IF prima facie merit is found, it shall be given due course and was for the MTC decision (dismissing his notice of appeal) while the rule 47 was for
respondent will be served summons the RTC decision.
EFFECT OF IF GROUND IS LACK OF JURISDICTION: A judgment of Rule 65: Certiorari

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 65: Petition for CERTIORARI certiorari. RTC was incorrect because appeal was available. Also, RTC cannot
entertain questions of fact in a rule 65 proceeding
Certiorari: Grounds: a. Courts cannot correct (petitioners cannot raise) questions of fact in a
Original civil 1. No jurisdiction/GAD: When any tribunal, board or officer certiorari case. The proper remedy is to assign questions of fact as an
action to exercising judicial or quasi-judicial functions has acted error in a properly taken appeal.
correct errors without/excess of its jurisdiction OR with grave abuse of b. Errors in the application of the law and the appreciation of evidence
of jurisdiction discretion amounting to lack or excess of jurisdiction committed by a court after it has acquired jurisdiction over a case are
2. No appeal or any plain speedy and adequate remedy correctible ONLY by appeal.
in the ordinary course of law 3. Romy’s Freight Service v. Castro: A filed a complaint for illegal dismissal
against B before the labor arbiter. B lost. B appealed to the NLRC. NLRC ruled
Grave abuse of discretion: The judgment is rendered in a in favor of B. A went to the CA under Rule 65 ascribing GADLEJ. CA ruled in
capricious, whimsical arbitrary or despotic manner favor of A, reasoning that the finding of the labor arbiter was supported by
substantial evidence. B went to the SC under Rule 65. SC ruled that it couldn’t
What is being asked of the court to do? To annul or modify entertain questions of fact and law under Rule 65, and could only correct errors
Where can it be 1. If the petition relates to an act or omission of a MTC of jurisdiction.
filed or of a corporation, board, officer: RTC exercising a. As a general rule, a motion for reconsideration is needed before a
jurisdiction over the territorial area (or also CA or petition for certiorari under rule 65 can be resorted to. However, there
Sandiganbayan, w/n it is in the aid of the court’s appellate are exceptions (many, like when the order is a patent nullity because
jurisdiction) the lower court did not have jurisdiction, where the MR would be
2. If petition involves act or omission of a quasi-judicial useless these have to be proven first to justify not filing an MR)
agency: CA b. In a certiorari proceeding, questions of fact and questions of law are
3. If election cases involving an act or omission of a NOT entertained. The sole object of the writ is to correct errors of
MTC/RTC: COMELEC in aid of its appellate jurisdiction jurisdiction or grave abuse of discretion.
4. Remember, however, that Rule 56 provides that the SC 4. Gerardo v. de la Pena
also has original jurisdiction over petitions for mandamus, a. The SC possesses no authority to rule upon non-jurisdictional issues in
prohibition and certiorari. SC will generally dismiss if a certiorari proceeding. The only question involved in certiorari is
originally filed in it unless there are special reasons. jurisdiction.
Period for filing 60 days from notice of the judgment or resolution b. In this case, the lower court correctly dismissed the complaint in CIVIL
CASE 2 based on res judicata considering the prior judgment in CIVIL
In case an MR/MNT is timely filed, whether such motion is CASE 1. All the requisites were present.
required or not, the petition shall be filed not later than 60 days 5. Banco Filipino v. CA
counted from the notice of the denial of the motion a. GENERALLY: IF petition for review under Rule 45 is available, Rule 65
CANNOT be availed of
1. Jamer v NLRC: A filed a labor case in NLRC. She lost. She went to the SC b. HOWEVER, although the SC may treat a petition for certiorari as
under rule 65 without filling an MR in NLRC. having been filed under Rule 45 (even if originally filed under 65), the
a. When an MR is an adequate remedy, a petition for certiorari will not petition must STILL BE FILED within the reglementary period for filing
prosper. petition for review (15 days from notice/within 30 day extension pd)
6. Fajardo v. Bautista: Jareno, as developer of land, sold lots to Fajardo under a
Error of Judgment Error of Jurisdiction contract to sell. However, Jareno also sold the lot to Habacon. Aggrieved,
Not within the ambit of Rule 65 Within the ambit of Rule 65 Fajardo went to the RTC to annul the contract to sell. RTC dismissed stating
When court exercises its jurisdiction and When court is without jurisdiction and that it did not have jurisdiction, as the HLURB had jurisdiction. Fajardo did not
commits an error. The decision is VALID renders a decision. The decision is void file an MR and instead went to the SC under R65, alleging GADLEJ of the RTC.
even if wrong and the remedy is even if correct and the remedy is SC ruled that Fajardo used Rule 65 as a substitute for the lost remedy of
APPEAL. Examples would be errors of CERTIORARI. Remember, Rule 65 is only appeal. Also, HLURB really did have jurisdiction and the RTC didn’t. RTC was
procedure or mistake in the court’s a remedy to correct errors of correct in dismissing.
findings. JURISDICTION. a. Generally, an order of dismissal, whether right or wrong, is a final
order and hence a proper subject of appeal, NOT CERTIORARI.
2. Day v. RTC of Zamboanga: A filed an ejectment case against B in the MTC. B GENERALLY, the remedies of appeal and certiorari are mutually
exclusive and not alternative or successive
lost. B went to the RTC of Zamboanga under Rule 65. RTC granted petition for

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

b.Accordingly, although the special civil action of certiorari is NOT proper


when an ordinary appeal is available, it may granted where it is
shown that the appeal would be inadequate, slow, insufficient.
c. Nevertheless, certiorari CANNOT substitute for the lost or lapsed
remedy of appeal, where such loss is through the neglect or error in
the choice of remedies.
7. Lansang v. CA and Jaca v. Davao Lumber
a. The availability of appeal DOES NOT AUTOMATICALLY
PRECLUDE the filing of a petition for certiorari when the appeal is
NOT an ADEQUATE REMEDY or EQUALLY BENEFICIAL, SPEEDY
OR SUFFICIENT. It is the inadequacy, and not the mere absence of
all other legal remedies, and the danger of failure of justice without
the writ, that must usually determine the propriety of certiorari
8. Tan v. CA:
a. GR: MR must first be filed before resorting to Rule 65
b. EXC:
i. The order is a patent nullity, as where the lower court has no
jurisdiction
ii. Where the questions raised in the certiorari proceeding have
been duly raised and passed upon by the lower court
iii. When there is an urgent necessity for the resolution of the
question and further delay would prejudice the interests of
the Government
iv. Where petitioner was deprived of due process
v. Where an MR would be useless
vi. Where the issue raised is one purely of law or where public
interest requires

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Discovery of contradicting or impeaching the testimony of deponent


as a witness
Epigraphs: 2. The deposition of a party or of any one, who at the time of
taking the deposition was an officer, director or managing
Rule 23: Depositions pending action agent of a public or private corporation, partnership or
Rule 24: Depositions before action or pending appeal association which is a party may be used by an adverse
Rule 25: Interrogatories to Parties party for any purpose
Rule 26: Admission by Adverse Party 3. WHEN A DEPOSITION OF A WITNESS, WHETHER OR
Rule 27: Production or inspection of documents or things NOT A PARTY, MAY BE USED BY ANY PARTY FOR ANY
Rule 28: Physical and mental examination of persons PURPOSE  deposition may be used without the
Rule 29: Refusal to comply with modes of discovery deponent actually being called to the witness stand:
when the court finds that (D-A-A-S-E-100)
WHAT IS A A deposition is the out-of-court oral testimony of a witness a. The witness is dead
DEPOSITION ? that is reduced to writing for later use in court or for b. The witness resides more than 100km from the
discovery purposes. place of trial or hearing
WHAT IS Discovery is the pre-trial phase in a lawsuit in which each c. The witness is abroad UNLESS it appears that his
DISCOVERY? party, through the law of civil procedure, can obtain evidence absence was procured by the party offering the
from the opposing party by means of discovery devices deposition
including requests for answers to interrogatories, requests for d. The witness is unable to attend or testify because
production of documents, requests for admissions and of age, sickness, infirmity or imprisonment
depositions e. That the party offering the deposition has been
unable to procure the attendance of the
Modes of discovery: witness by subpoena
1. Depositions pending action (Rule 23) f. Upon application and notice, in exceptional
2. Depositions before action or pending appeal (Rule 24) circumstances wherein the testimony of the
3. Interrogatories to Parties (Rule 25) witness is important
4. Request for admission (Rule 26) 4. If only part of a deposition is offered in evidence by a
5. Motion for production or inspection of documents or party, the adverse party may require him to introduce all
things (Rule 27) of it which is relevant to the part introduced and any party
6. Submission to a physical or mental examination by a may introduce any other parts
doctor (Rule 28) OTHER SECTIONS 1. Sec 5: Substitution of parties does not affect the right to
RULE 23: When can depositions pending action be taken? OF RULE 23 use depositions previously taken and when an action has
DEPOSITIONS 1. With leave of court after jurisdiction has been been dismissed and another action involving the same
PENDING ACTION: obtained over any defendant (through subject is afterward brought between the same
summons/voluntary submission) or over property that parties/representatives/successors-interest, all depositions
is subject of the action lawfully taken and duly filed in the former action may be
a. If a person is in prison, deposition must used as if it was originally taken
always been taken with leave of court 2. Sec 6: Objection may be made at the trial or hearing to
2. Without leave of court after an answer has been receiving in evidence any deposition/part thereof for any
served reason which would require the exclusion of the evidence if
the witness were then present and testifying
Scope of examination: Any matter not privileged which is 3. Sec 7: A party shall not be deemed to make a person his
relevant to the subject of the pending action own witness for any purpose by taking his deposition
RULE 23 SEC 4 At the trial or upon the hearing of a motion or an interlocutory 4. Sec 8: The introduction in evidence of the deposition/any
(IMPORTANT) proceeding, any part or all of a deposition may be used against part thereof for any purpose OTHER THAN THAT OF
any party who was present or represented at the taking of the CONRADICTING or IMPEACHING THE DEPONENT makes
deposition or who had due notice thereof in accordance with the deponent the witness of the party introducing the
the following: deposition
a. HOWEVER this shall not apply to the use by an
1. Any deposition may be used by any party for the purpose adverse party of a deposition against an officer of
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

a corporation etc (The deposition of a party or of interrogatories shall serve upon every other party notice of
any one, who at the time of taking the deposition such. A party so served may serve cross-interrogatories
was an officer, director or managing agent of a upon the party proposing to take the deposition within 10
public or private corporation, partnership or days. Within 5 days, the latter may serve re-direct
association which is a party may be used by an interrogatories upon a party who has served cross
adverse party for any purpose) interrogatories
5. Sec 9: At the trial or hearing, any party may rebut any 14. Sec 29: Effect of errors or irregularities in depositions:
relevant evidence contained in a deposition whether a. As to notice: All E/I for taking a deposition are
introduced by him or by any other party waived unless written objections are promptly
6. Sec 10: Persons before whom depositions may be taken made
within the Philippines b. As to DQ of an officer: objection deemed
a. Any judge waived unless objection is promptly made before
b. Any notary public the taking begins or as soon thereafter as the dq
c. If agreed upon by parties in writing, with any becomes known to or could be discovered with
person authorized to administer oaths. This can reasonable diligence
be done at any time or place c. As to competency or relevancy of evidence:
7. Sec 11: Persons before whom depositions may be taken in objections as to this are not waived by failure to
foreign countries: make them before or during the taking of the
a. On notice: Before a secretary of embassy or deposition unless the ground for objection is one
legation, consul general, consul, vice consul or which might have been obviated or removed if
consular agent of the Republic of the Philippines presented at that time
(in that foreign country) d. As to oral examination/other particulars:
b. Before such person or office as may be appointed deemed waived unless objected to at the taking of
by commission or under letters rogatory the deposition
c. If agreed upon by parties in writing, with any e. As to form of written interrogatories:
person authorized to administer oaths. This can objections waived unless objection served in
be done at any time or place writing
8. Sec 12: Commission/letters rogatory (referred to in (b) of f. As to manner of preparation: waived unless a
above: A commission or letters rogatory shall be issued motion to suppress deposition is promptly made
when necessary and convenient on application and notice. RULE 24: 1. Sec 1: BEFORE ACTION: A person who desires to
Through this, officers may be designated in DEPOSITIONS perpetuate his own testimony or that of another
notices/commissions to take the depositions BEFORE ACTION person regarding any matter that may be cognizable in
9. Sec 13: Person taking deposition cannot be a OR PENDING any court of the Philippines may file a verified petition in
a. relative of the deponent (6th degree of APPEAL the court of the place of the residence of any expected
consanguinity/affinity) adverse party
b. employee or counsel (and employee of counsel) of 2. Sec 7: PENDING APPEAL (leave of court required): If
deponent an appeal has been taken from a judgment of a court
c. person financially interested in the action (including the CA in some cases) OR before taking of an
10. Sec 15: A party must give reasonable notice in writing to appeal before the time expires,
every other party in the action when he wants to take the
deposition of any person upon oral examination The court in which the judgment was rendered may allow
11. Sec 16: After notice is served for taking a deposition by the taking depositions of witnesses to perpetuate their
oral examination and a motion is filed by any party or by testimony for use in the event of further proceedings in the
the person sought to be examined, the court may issue said court. In this case, the person desiring to perpetuate
orders to protect the deponent or other parties the testimony may file a motion for leave to take the
12. Sec 17: The officer who will take the deposition shall put depositions
the witness on oath and shall personally record the RULE 25: When can interrogatories to parties be made?
testimony of the witness INTERROGATORIES 1. With leave of court after jurisdiction has been
13. Sec 25: Deposition upon written interrogatories: A party TO PARTIES obtained over any defendant (through
desiring to take the deposition of any person upon written (QUESTIONS!) summons/voluntary submission) or over property that
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

is subject of the action party pursuant to such request is for the purpose of the
a. If a person is in prison, deposition must pending action ONLY and shall not constitute an admission
always been taken with leave of court by him for any other purpose nor may the same be used
2. Without leave of court after an answer has been against him in any other proceeding
served 4. Sec 4: The court may allow the party making an admission
under this rule, to expressly or impliedly withdraw the
How is it made? When a party desires to elicit material and admission
facts from any adverse parties, he shall file and serve upon
them written interrogatories to be answered. If the party N.B. Serve the request for admission on the party you’re
served is a corporation/partnership/association, the officer asking. You can’t serve it on the counsel alone. There is no
allowed to testify in its behalf will answer. implied admission if you do that.
RULE 27: MOTION Upon motion of any party showing good cause, the court in
Time to answer: 15 days from service unless the court extends FOR INSPECTION which an action is pending may
(on motion)
1. Order any party to produce and permit the inspection
Time to file objections: Objections to any interrogatories must and copying/photographing of any documents, papers,
be made 10 days after service. Answers deferred until books, accts, letters, photographs, objects NOT
objections resolved privileged, which constitute or contain evidence
material to any matter involved in the action and
Effect of failure to answer: No admission. You’re just being which are in the possession and control of the party
asked questions. ordered
2. Order any party to permit entry upon designated land
Limit: No party may, without leave of court, serve more than or other property in his possession or control for the
one set of interrogatories to be answered by the same party purpose of inspecting, measuring ,surveying, etc.

Effect of failure to serve written interrogatories: Unless RULE 29: 1. REFUSAL TO ANSWER (by party/deponent)  Ask the
thereafter allowed by the court for good cause shown and to SANCTIONS FOR other questions and then get an order to have party
prevent failure ot justice, a party not served with written REFUSAL TO compelled to answer: If a party/other deponent refuses to
interrogatories may not be compelled by the adverse party to COMPLY WITH answer any question upon oral examination, the
give testimony in open court, or to give a deposition MODES OF examination may be completed on other matters or
pending appeal DISCOVERY adjourned, depending on the proponent. The proponent
RULE 26: 1. Sec 1: Request for admission: At any time after issues may then apply to the court of the place where the
ADMISSION BY have been joined, a party may file and serve upon any deposition is being taken for an order to compel an
ADVERSE PARTY other party a written request for the admission by the answer.
latter of the genuineness of any material and relevant
document described in and shown with the request or of This can also be done when a witness refuses to answer
the truth of any material and relevant matter any interrogatory submitted under rule 23/25
2. Sec 2: Implied admission: (Basically, party must
specifically deny or explain why he cannot admit nor deny If application is granted, court will order the refusing party
the request for admission. Otherwise, it will be deemed or deponent to answer the question or interrogatory. Court
admitted) Each of the matters of which an admission is may also order deponent or refusing party to pay
requested shall be deemed admitted UNLESS within a proponent his expenses.
period designated in the request (which shall be at least 15
days from service) or within a longer time as the court may If application denied, court will require the proponent to
allow upon motion, the party to whom the request is pay the refusing party expenses + atty’s fees
directed files and serves upon the party requesting 2. CONTEMPT OF COURT: If a party or other witness
admission, a sworn statement specifically denying the refuses to answer any question after being directed to do
matters of which an admission is requested or explain so by the court of the place in which the deposition is being
why he cannot admit nor deny them. taken, the refusal may be taken as contempt of court.
3. Sec 3: Effect of admission: Any admission made by a 3. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS:
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

a. If a party or an officer or managing agent of a knowledge thereof so that they the facts can be clearly be laid before the court
party willfully fails to appear before the officer through their pleadings or motions.
who is to take the deposition OR fails to serve  Depositions are principally made available by law to the parties as a means of
answers to interrogatories, the court, on motion informing themselves of all the relevant facts; they are not therefore generally
and notice may: meant to be a substitute for the actual testimony in open court of a party or
i. Strike out all or any part of any pleading witness. The deponent must as a rule be presented for oral examination in open
of that party court at the trial or hearing.
ii. Dismiss the action or proceeding or any  Indeed, any deposition offered to prove the facts therein set out during a trial
part thereof (if party is plaintiff) or hearing, in lieu of the actual oral testimony of the deponent in open court,
iii. Enter a judgment by default against that may be opposed and excluded on the ground that it is hearsay; the party
party (if party is defendant) against whom it is offered has no opportunity to cross-examine the deponent at
iv. Order him to pay reasonable expenses the time that his testimony is offered. It does not matter that that opportunity
for cross-examination was afforded during the taking of the deposition; for
Cases in modes of discovery normally, the opportunity for cross-examination must be accorded a party at
the time that the testimonial evidence is actually presented against him during
Dasmarinas v. Reyes (When depositions are taken) the trial or hearing.
 However, depositions may be used without the deponent being actually called
 American President Lines (APL) sued Dasmarinas Garments to recover 53k. In to the witness stand by the proponent, under certain conditions and for certain
its answer, Dasmarinas garments simply denied any liability and set up limited purposes. These exceptional situations are governed by (now Sec 4,
counterclaims. Rule 23 of the ROC)
 During the trial, APL presented its first witness and it was thereafter completed.
The case was reset to a later date (May 3) for reception of the testimony of two Sec. 4. Use of depositions. — At the trial or upon the hearing of a motion of an
more witnesses for APL. At the May 3 hearing, instead of presenting the interlocutory proceeding, any part or all of a deposition, so far as admissible under
witnesses, APL filed a motion praying that it wanted to take the depositions of the rules of evidence, may be used against any party who was present or
Lee and Yeh in Taiwan and prayed that for this purpose, a letters rogatory be represented at the taking of the deposition or who had due notice thereof, in
issued addressed to the diplomatic officials of the Philippines in Taipei. accordance with any of the following provisions:
However, since this could not be done since there was no consulate office in (a) Any deposition may be used by any party for the purpose of contradicting or
Taiwan, they asked that Director Joaquin Roces of the Asia Exchange Center to impeaching the testimony of deponent as a witness;
hear and take the oral depositions of the two Taiwanese. Dasmarinas naturally (b) The deposition of a party or of any one who at the time of taking the deposition
opposed. was an officer, director, or managing agent of a public or private corporation,
 RTC allowed the deposition to be taken by Roces, opining that the Asian partnership, or association which is a party may be used by an adverse party for
Exchange Center was the authorized Philippine representative in Taiwan and any purpose;
that it may take the testimonies of the two witnesses residing there by (c) The deposition of a witness, whether or not a party, may be used by any
deposition, but only upon written interrogatories so that Dasmarinas can cross- party for any purpose if the court finds:
examine them
 Dasmarinas went to the CA but it was denied. (1) that the witness is dead; or
(2) that the witness if out of the province and at a greater distance than fifty
Issue: Can a party, during the trial of a case, present its evidence by taking the (50) kilometers from the place of trial or hearing, or is out of the Philippines,
deposition of its witnesses in a foreign jurisdiction before a private entity not unless it appears that his absence was procured by the party offering the
authorized by law to take depositions? deposition; or
(3) that the witness is unable to attend to testify because of age, sickness,
 Depositions are a mode of discovery. They are intended as a means to infirmity, or imprisonment; or
(4) that the party offering the deposition has been unable to procure the
compel disclosure of facts resting in the knowledge of a party or other person
attendance of the witness by subpoena; or
which are relevant in some suit or proceeding in court. They are meant to
(5) upon application and notice, that such exceptional circumstances exist as to
enable a party to learn all material and relevant facts, not only known to him make it desirable, in the interest of justice and with due regard to the
and his witnesses but also those known to the adverse party and the latter’s importance of presenting the testimony of witnesses orally in open court, to
own witnesses allow the deposition to be used;
 In fine, the object of discovery is to make it possible for all the parties to a case
to learn all the material and relevant facts from whomever may have

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

(d) If only part of a deposition is offered in evidence by a party, the adverse party rogatory may be addressed "To the Appropriate Judicial Authority in (here name the
may require him to introduce all of it which is relevant to the part introduced, and country)."
any party may introduce any other parts.
 COMMISSION: A commission may be defined as "(a)n instrument issued by a
 It is apparent then that the deposition of any person may be taken wherever he court of justice, or other competent tribunal, to authorize a person to take
may be, in the Philippines or abroad. depositions, or do any other act by authority of such court or tribunal"
o If the party or witness is in the Philippines, his deposition "shall be  LETTERS ROGATORY: Letters rogatory, on the other hand, may be defined as
taken before any judge, municipal or notary public" (Sec. 10, Rule 23, "(a)n instrument sent in the name and by the authority of a judge or court to
Rules of Court). another, requesting the latter to cause to be examined, upon interrogatories
o If in a foreign state or country, filed in a cause pending before the former, a witness who is within the
 the deposition shall be taken: jurisdiction of the judge or court to whom such letters are addressed"."
 (a) on notice before a secretary or embassy or  What matters is that the deposition is taken before a Philippine official acting by
legation, consul general, consul, vice-consul, or authority of the Philippine Department of Foreign Affairs and in virtue of a
consular agent of the Republic of the Philippines, or commission duly issued by the Philippine Court in which the action is pending,
 (b) before such person or officer as may be and in accordance, moreover, with the provisions of the Philippine Rules of
appointed by commission or under letters rogatory" Court pursuant to which opportunity for cross-examination of the deponent will
 Leave of court is not necessary where the deposition is to be taken before "a be fully accorded to the adverse party
secretary or embassy or legation, consul general, consul, vice-consul, or  Dasmariñas also contends that the "taking of deposition is a mode of pretrial
consular agent of the Republic of the Philippines," and the defendant's answer discovery to be availed of before the action comes to trial." Not so.
has already been served o Depositions may be taken at any time after the institution of any
 After answer, whether the deposition-taking is to be accomplished within the action, whenever necessary or convenient. There is no rule that limits
Philippines or outside, the law does not authorize or contemplate any deposition-taking only to the period of pre-trial or before it; no
intervention by the court in the process, all that is required being that prohibition against the taking of depositions after pre-trial. Indeed, the
"reasonable notice" be given "in writing to every other party to the action . . . law authorizes the taking of depositions of witnesses before or after an
(stating) the time and place for taking the deposition and the name and appeal is taken from the judgment of a Regional Trial Court "to
address of each person to be examined, if known, and if the name is not perpetuate their testimony for use in the event of further proceedings
known, a general description sufficient to identify him or the particular class or in the said court" and even during the process of execution of a final
group to which he belongs. . . . " (Sec. 15, Rule 24). and executory judgment
o The court intervenes in the process only if a party moves  Dasmariñas further claims that the taking of deposition under the
1. to "enlarge or shorten the time" stated in the notice (id.), circumstances is a "departure from the accepted and usual judicial proceedings
2. "upon notice and for good cause shown," to prevent the of examining witnesses in open court where the demeanor could be observed
deposition-taking, or impose conditions therefor, e.g., that by the trial judge;" that it is "inherently unfair" to allow APL, "a foreign entity
"certain matters shall not be inquired into" or that the taking suing in the Philippines, to present its evidence by mere deposition of its
be "held with no one present except the parties to the action witnesses away from the 'penetrating scrutiny' of the trial Judge while
and their officers or counsel," etc. or petitioner is obligated to bring and present its witnesses in open court subject
3. to terminate the process on motion and upon a showing that to the prying eyes and probing questions of the Judge."
"it is being conducted in bad faith or in such manner as o Of course the deposition-taking in the case at bar is a "departure from
unreasonably to annoy, embarrass, or oppress the deponent the accepted and usual judicial proceedings of examining witnesses in
or party" open court where their demeanor could be observed by the trial
 Where the deposition is to be taken in a foreign country where the Philippines judge;" but the procedure is not on that account rendered illegal nor is
has no "secretary or embassy or legation, consul general, consul, vice-consul, the deposition thereby taken, inadmissible.
or consular agent," then obviously it may be taken only "before such person or o It precisely falls within one of the exceptions where the law permits
officer as may be appointed by commission or under letters rogatory. Section such a situation, i.e., the use of deposition in lieu of the actual
12, Rule 23 provides as follows: appearance and testimony of the deponent in open court and without
being "subject to the prying eyes and probing questions of the Judge."
Sec. 12. Commission or letters rogatory. — A commission or letters rogatory shall o This is allowed provided the deposition is taken in accordance with the
be issued only when necessary or convenient, on application and notice, and on applicable provisions of the Rules of Court and the existence of any of
such terms and with such directions as are just and appropriate. Officers may be the exceptions for its admissibility — e.g., "that the witness if out of
designated in notices or commissions either by name or descriptive title and letters the province and at a greater distance than fifty (50) kilometers from
the place of trial or hearing, or is out of the Philippines, unless it
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

appears that his absence was procured by the party offering the conducted under oath outside of the court room, usually in one of the lawyers
deposition; or . . . that the witness is unable to attend to testify offices. A transcript - word for word account - is made of the deposition. The
because of age, sickness, infirmity, or imprisonment, etc."— is first testimony of a witness is taken in writing, under oath or affirmation, before
satisfactorily established some judicial officer in answer to questions or interrogatories
 The Regional Trial Court saw fit to permit the taking of the depositions of the o The PURPOSE OF TAKING DEPOSITIONS:
witnesses in question only by written interrogatories, removing the proponent's  1.] Give greater assistance to the parties in ascertaining the
option to take them by oral examination, i.e., by going to Taipei and actually truth and in checking and preventing perjury;
questioning the witnesses verbally with the questions and answers and  2.] Provide an effective means of detecting and exposing
observations of the parties being recorded stenographically. false, fraudulent claims and defenses;
 The imposition of such a limitation, and the determination of the cause thereof,  3.] Make available in a simple, convenient and inexpensive
are to be sure within the Court's discretion. The ostensible reason given by the way, facts which otherwise could not be proved except with
Trial Court for the condition — that the deposition be taken "only upon written great difficulty;
interrogatories" — is "so as to give defendant (Dasmariñas) the opportunity to  4.] Educate the parties in advance of trial as to the real value
cross-examine the witnesses by serving cross-interrogatories." of their claims and defenses thereby encouraging
o The statement implies that opportunity to cross-examine will not be settlements;
accorded the defendant if the depositions were to be taken upon oral  5.]Expedite litigation;
examination, which, of course, is not true. For even if the depositions  6.] Safeguard against surprise;
were to be taken on oral examination in Taipei, the adverse party is  7.]Prevent delay;
still accorded full right to cross-examine the deponents by the law,  8.] Simplify and narrow the issues; and
either by proceeding to Taipei and there conducting the cross-  9.] Expedite and facilitate both preparation and trial.
examination orally, or opting to conduct said cross-examination merely o As can be gleaned from the foregoing, a deposition, in keeping with its
by serving cross-interrogatories. nature as a mode of discovery, should be taken before and not
during trial.
People v. Webb  In fact, rules on criminal practice - particularly on the defense
of alibi, which is respondents main defense in the criminal
 Hubert Webb was one of the accused in the famous rape case. In the trial, he proceedings against him in the court below - states that when
filed a motion to take the testimony by oral deposition praying that he be a person intends to rely on such a defense, that person must
allowed to take the testimonies of several personnel of the US Department of move for the taking of the deposition of his witnesses within
Justice, Department of Motor Vehicles before the diplomatic officials of the the time provided for filing a pre-trial motion.
Philippines in the US in lieu of presenting them as witnesses in court. He alleges  A circumspect scrutiny of the record discloses that the evidence to be obtained
that their testimonies are crucial to establish his innocence. His basis of Sec 4 through the deposition-taking would be superfluous or corroborative at best. A
of Rule 23 of the ROC careful examination of Exhibits 218 and 219 readily shows that these are of the
 The prosecution opposed, alleging that Rule 23 Sec 4 has no application in same species of documents which have been previously introduced and
criminal cases. The RTC denied Webb’s motion. Webb went to the CA by admitted into evidence in a previous trial court order
certiorari. CA ruled in favor of Webb, allowing the diplomatic officials of the  It need not be overemphasized that the foregoing factual circumstances only
Philippines to take the depositions. serves to underscore the immutable fact that the depositions proposed to be
 Petitioner (prosecution) went to the SC via rule 65 taken from the five U.S. based witnesses would be merely corroborative or
cumulative in nature and in denying respondents motion to take them, the
Issue: Was the CA correct in allowing the diplomatic officials to take the oral trial court was but exercising its judgment on what it perceived to be a
deposition? NO. CA INCORRECT. superfluous exercise on the belief that the introduction thereof will not
reasonably add to the persuasiveness of the evidence already on record.
 SC first labored to define what a deposition is: It is the testimony of a
witness taken upon oral question or written interrogatories, not in open court, Republic v. Sandiganbayan
but in pursuance of a commission to take testimony issued by a court, or under
a general law or court rule on the subject, and reduced to writing and duly  PCGG filed a complaint for reconveyance, reversion, etc against Tantoco
authenticated, and intended to be used in preparation and upon the trial of a Santiago and the Marcoses. After being served, Tantoco and Santiago, instead
civil or criminal prosecution. of filing answer, filed a motion to strike out some portions of the complaint and
 It is a pre-trial discovery device by which one party (through his or her for a bill of particulars.
attorney) asks oral questions of the other party or of a witness for the other  They then presented a motion for leave to file interrogatories under the ROC.
party. The person who is deposed is called the deponent. The deposition is Basically, the sought an answer to the question as regards who among the

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

PCGG commissioners approved or authorized their (Santiago and Tantoco) their  WHEN LEAVE OF COURT REQUIRED: On the other hand, leave of court is
inclusion. The Sandiganbayan denied the motion for BOP and the motion for required as regards discovery by (a) production or inspection of documents or
leave to file interrogatories opining that service of interrogatories before joinder things in accordance with Rule 27, or (b) physical and mental examination of
of issues and without leave of court is premature. persons under Rule 28, which may be granted upon due application and a
 Therafter, Tantoco and Santiago filed with the SB a pleading denominated showing of due cause.
―Interrogatories to Plaintiff‖, seeking factual details relative to specific  The petitioner's (prosecution’s) objections to the interrogatories served on it in
averments of the PCGG complaint (what specific acts were committed) and a accordance with Rule 25 of the Rules of Court cannot be sustained.
motion for production of documents (seeking the records on the basis of which o It should initially be pointed out that Tantoco/Santiago’s motion for
the verification of the complajnt was made) Sandiganbayan admitted the leave to file interrogatories was correct since leave of court was
interrogatories and granted the motion for production. PCGG opposed and went required when discovery is being availed of before an answer is
to the SC served. But there was no need for the private respondents to seek
such leave to serve their Interrogatories to Plaintiff after they had filed
Issue: Was the SB correct in admitting the interrogatories? YES. Leave of court not their answer to the PCGG's complaint, just as there was no need for
required anymore. the Sandiganbayan to act thereon.
 there is also good cause for the production and inspection of the documents
 Involved in the present proceedings are two of the modes of discovery provided subject of the motion for production. Some of the documents are, according to
in the Rules of Court: interrogatories and inspection and production of the verification of the amended complaint, the basis of several of the material
things allegations of said complaint. Others, admittedly, are to be used in evidence by
 The various modes or instruments of discovery are meant to serve the plaintiff. It is matters such as these into which inquiry is precisely allowed
o (1) as a device, along with the pre-trial hearing under Rule 20, to by the rules of discovery, to the end that the parties may adequately prepare
narrow and clarify the basic issues between the parties, and for pre-trial and trial. The only other documents sought to be produced are
o (2) as a device for ascertaining the facts relative to those issues. needed in relation to the allegations of the counterclaim. Their relevance is
 The field of inquiry that may be covered by depositions or interrogatories is as indisputable; their disclosure may not be opposed.
broad as when the interrogated party is called as a witness to testify orally at
trial. The inquiry extends to all facts which are relevant, whether they be RECAP
ultimate or evidentiary, excepting only those matters which are privileged.
 The objective is as much to give every party the fullest possible information of When leave of court required When not required
all the relevant facts before the trial as to obtain evidence for use upon said Depositions under Rule 24: Depositions under Rule 24:
trial. The principle is reflected in Section 2, Rule 24 (governing depositions pending action when answer depositions pending action when answer
depositions) which generally allows the examination of a deponent — to complaint has been served has not been filed but after jurisdiction
1) regarding any matter, not privileged, which is relevant to the subject of the has been obtained over defendant
pending action, whether relating to the claim or defense of any other party Depositions under Rule 25: Deposition PENDING appeal under
2) as well as: interrogatories to parties when answer Rule 24
(a) "the existence, description, nature, custody, condition and location of any to complaint has been served
books, documents, or other tangible things" and Request for admission under Rule Depositions under Rule 25:
(b) "the identity and location of persons having knowledge of relevant facts." 26: request for admission does not interrogatories to parties when answer
require court approval has not been filed but after jurisdiction
has been obtained over defendant
 WHEN LEAVE OF COURT NOT REQUIRED: such modes of discovery as (a)
Rule 27: Motion for production of
depositions (whether by oral examination or written interrogatories) under Rule
inspection of documents or things
24, (b) interrogatories to parties under Rule 25, and (c) requests for admissions
under Rule 26, may be availed of without leave of court, and generally, without Rule 28: Motion for physical and mental
court intervention. examination of person
o The Rules of Court explicitly provide that leave of court is not
necessary to avail of said modes of discovery after an answer to the PO v. CA: A request for admission is redundant when the party from whom it is
complaint has been served. It is only when an answer has not yet sought has already admitted the same facts in his pleading. Additionally, he does
been filed (but after jurisdiction has been obtained over the not have to make a second denial of those already denied in his answer to the
defendant or property subject of the action) that prior leave of complaint.
court is needed to avail of these modes of discovery, the reason
being that at that time the issues are not yet joined and the
disputed facts are not clear.
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Execution: Rule 39 stayed by appeal)  MTC judgment in forcible entry and


unlawful detainer, RTC judgment on appeal against defendant,
WHAT KIND OF Final and executory judgments/orders judgment in action for injunction, receivership, accounting,
JUDGMENT IS support.
READY FOR Final: when the order has completely disposed of the case Example:
EXECUTION? and there’s nothing left to be done
Executory: The order can now be enforced because the A filed a forcible entry case in MTC against B. B lost so he
appeal period has already expired. appealed it to the RTC. RTC affirmed. Even if B appeals to the
CA, the judgment is already immediately executory.
Office of Court Admin v. Corpuz: Losing party must first EXECUTION 1. Execution by motion: A final and executory judgment or
receive notice of judgment before the judgment can be ACCORDING TO order may be executed on motion within 5 years from the
executed [due process] MODE OF date of its entry.
EXECUTION As a matter of right: upon motion ENFORCEMENT 2. Execution by action: You must file an action if the 5
ACCORDING TO year period has already lapsed.
NATURE When the judgment is final and executory CAN ORDER OF No. As per Rule 41, you have to file an appropriate civil action
EXECUTION BE under Rule 65.
This is enforceable by mandamus because it is merely a APPEALED?
ministerial function CAN YOU STAY No. However, executions as a matter of discretion may be
EXECUTIONS AS A stayed.
As a matter of discretion (Sec 2) MATTER OF RIGHT?
Requisites:
1. Execution pending appeal: may only issue upon good
grounds a. Court approval of a supersedeas bond filed by the
(judgment debtor aka losing party)
Requisites: b. The bond must be conditioned upon the performance
a. Prevailing party must file motion of the judgment or order allowed to be executed in
b. Notice must be given to the adverse party case it shall be finally sustained in whole or in part.
c. The trial court must still have jurisdiction over the
case Ex: A won a collection case against B in a trial court. Within
d. The trial court must still be in possession of either the the 15 day period for appeal, A motioned for execution
original record or the record on appeal, as the case pending appeal. B can file a supersedeas bond to stay
may be execution (pending appeal)

If these are all done, the court of origin [tc] at its discretion, What is a supersedeas bond? Basically, it is a bond that a
may order the execution of the final judgment or order before defendant/losing party puts up if he wants to defer
the expiry of the period to appeal. payment/compliance with a judgment until the appeal is over.
WHAT IS THE Where the executed judgment is reversed totally/partially or is
HOWEVER, when trial court loses jurisdiction, the motion for EFFECT OF THE annulled on appeal or otherwise, the trial court, upon motion,
execution pending appeal may be filed in the appellate court. REVERSAL OF AN may issue orders of restitution or reparation of damages as
EXECUTED equity and justice may warrant
To reiterate: JUDGMENT ON
Before an appeal is perfected: Prevailing party must file APPEAL? Basically, court will tell the winning party to return what he
the motion with the trial court that rendered the already got
judgment/final order WHAT ARE THE 1. By motion within 5 years from date of entry of judgment
After it has been perfected: with the appellate court MODES OF 2. By independent action called ―revival of judgment‖ after 5
EXECUTION? years and before it has prescribed
2. Partial, separate or several judgments: may be executed WHAT ARE THE 1. When judgment creditor (winner) dies: His executor,
on the same terms. RULES IN administrator of successor-in-interest must apply for the
EXECUTION IN CASE writ of execution
Immediately executory judgments: (meaning they are not OF DEATH OF A 2. When judgment debtor (loser) dies AND it is for
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

PARTY? recovery of personal/real property: 3. Garnishment of debts and credits: Another way of
a. The writ shall be enforced/directed against executing a judgment for money. It is a species of
his executor, administrator or successor in attachment for reaching credits belonging to the judgment
interest debtor and owing to him from a stranger in litigation. It is
b. The lien on the property may also be an attachment by which the plaintiff seeks to subject to
enforced his claim property of the defendant in the hands of a third
3. When judgment debtor dies AND execution has person or money owed by such third person or garnishee
actually levied upon any of his property: the to the defendant.
properties may be sold for the satisfaction of the
judgment obligation. Examples:
WHAT IS THE As per Sec 14, it is 5 years because you have 5 years to file Credits (receivables), bank deposits, financial interests,
LIFETIME OF THE the motion for the writ to issue. royalties, commissioners and other personal property not
WRIT OF capable of manual delivery in the possession or control of third
EXECUTION? parties.
HOW ARE 1. Immediate payment on demand: Basically, the
EXECUTIONS FOR judgment debtor will be ordered to pay the full amount However, you can’t garnish public funds and wages. Also,
JUDGMENTS FOR stated in the writ of execution. It can be through cash, when bank deposits are garnished, it is not a violation of the
MONEY ENFORCED? certified bank check payable only to the judgment bank secrecy law.
creditor or through any other means acceptable to
IMMEDIATE the judgment creditor. Rules to keep in mind:
PAYMENT + L EVY + 2. Satisfaction by levy: This arises when the judgment
GARNISHMENT debtor cannot pay all or part of the obligation in cash, a) The garnishment shall be made by notifying the third
bank check or other mode of payment. The sheriff will party owing such debts or having in his possession or
levy upon the properties of the judgment obligor of every control such credits to which the judgment creditor is
kind and nature. entitled.
b) In case there are two or more garnishees holding
Dagooc v. Erlina: You can’t use a promissory note to satisfy deposits/credits sufficient to satisfy the judgment, the
a money judgment. judgment debtor, if available, may choose the garnishees.
Otherwise, the judgment creditor will choose.
What is the meaning of levy? WHAT HAPPENS Situation: Sheriff levies on a property that is claimed by a
WHEN THE third party.
It is the act whereby a sheriff sets apart or appropriates for PROPERTY LEVIED
the purpose of satisfying the writ of the execution, a part or ON IS CLAIMED BY What must the third party do? Make an affidavit of his title
the whole of the judgment debtor’s property ANOTHER PERSON? or right to possession, stating the grounds and serve it upon
the officer making the levy.
What are the three different kinds of sales under the RULE 39 SEC 16
law? When this is done, the sheriff/officer making the levy will not
be bound to keep the property.
Ordinary execution sale
Judicial foreclosure sale However, when the judgment creditor (winner), upon the
Extra-judicial foreclosure sale demand of the officer, files a bond approved by the court to
indemnify the third party at an amount not less than the value
Rules to keep in mind: of the levied property, the officer can still keep it.
a) Judgment debtor may choose what will be levied upon
b) If he does not choose, the sheriff shall levy on personal Also, the judgment creditor can claim for damages against a
property first if any and then the real properties if the third-party claimant who filed a spurious claim.
personal properties are insufficient.
c) The sheriff must only sell so much of the property as is What are the remedies of the third party claimant if his
sufficient to satisfy the debt and lawful fees. claim is disapproved

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

1. File a separate action to determine title or right of 2. When it’s not personalty and it is not capable of
possession manual delivery: After payment, the officer making the
2. File complaint for damages against the bond filed by the sale must execute and deliver to the purchase a certificate
judgment creditor of sale. The certificate transfers all the rights that the
judgment debtor may have had (as of the date of
Other rules/nuances: levy/prelim attachment) to the buyer
3. If real property: A certificate of sale must be given upon
a) The officer is not liable for damages for the payment showing the description of the property, the
taking/keeping of the property to any third-party claimant price paid. The certificate must be registered
if the judgment creditor files a bond. 4. If property claimed by third-person: The certificate to
b) However, an action may be filed by the judgment creditor be issued shall state that there is a third-party claim
against the sheriff/levying officer as long as it is filed REDEMPTION Who may redeem real property sold?
within 120 days from the filing of the bond 1. The judgment debtor, his successor in interest in whole or
c) When the writ of execution is issued in favor of the in part of the property
Republic of the Philippines or any officer representing it, 2. A creditor having a lien by virtue of an attachment,
the filing of such bond (indemnity bond) is not required judgment, or mortgage on the property sold. He is called
d) In case the sheriff is sued for damages as a result of the the redemptioner
levy, he shall be represented by the Solicitor General and
if he is held liable, the National Treasurer will pay for it. Period to redeem
SALE ON 1. If perishable property: by posting written notice of time
EXECUTION and place of sale at 3 public places for a reasonable time 1. Judgment debtor (or successor in interest): IF he is
(NOTICE 2. If other personal property: posting in 3 public places for exercising redemption ahead of the redemptioner 
REQUIREMENTS) at least 5 days within 1 year from the date of registration of certificate of
3. In real property, by posting in 3 public places. If the value sale with the RD
of the property is more than 50k, notice must be 2. Redemptioner exercising redemption ahead of
published once a week for 2 straight weeks in one judgment debtor  Also within 1 year from the date of
newspaper in circulation in the provine or city registration
4. In ALL cases, notice must be given to the judgment 3. Redemptioner redeeming from another
debtor at least 3 days before the sale except if it is redemptioner  Within 60 days from the last
perishable. If it’s perishable, notice shall be given any redemption
time before the sale
The purchaser/last redemptioner entitled to:
Rules:
1. Execution of final deed of sale by the sheriff: This is to
a) All execution sales must be made at a public auction to enable purchaser or last redemptioner to consolidate his
the highest bidder. title to the property and for the issuance by the RD of new
b) The judgment debtor, if present, may direct the order in title in his name
which the property shall be sold (remember, if enough 2. Physical possession of the property by means of writ of
has been sold to satisfy the judgment, no more should be possession against judgment debtor or his successor
sold. If there is any excess, it shall go to the judgment interest or against any occupant. This can be availed of
debtor) AFTER filing of a case in which the judgment was
c) The judgment creditor can join in the auction. If he joins rendered and a writ of execution was issued.
and no third party claim has been filed, he doesn’t have to WHEN WRIT OF 1. Sale at a public auction  Where 12 month period has
pay the amount of the bid if it does not exceed the POSSESSION MAY already lapsed without any redemption
amount of his judgment. If it does, he shall pay the BE ISSUED 2. Land registration proceedings
excess. 3. Judicial foreclosure  Debtor must be in possession and
CONVEYANCE OF 1. When it’s personalty and it is capable of manual no third person intervenes
THE PROPERTY delivery: After payment, the officer making the sale must 4. EJ foreclosure
deliver it to the purchaser and execute a certificate of a SATISFACTION OF This is where the case ends. The clerk of court enters the
sale if required. JUDGMENT satisfaction of the judgment. When does he do this?
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

(c) the property attached is exempt from execution, hence exempt from preliminary
1. Upon the return of a writ of execution showing full attachmen9 or chanrobles virtual law library
satisfaction (d) the judgment is rendered against the attaching or garnishing creditor.
2. Upon the filing of an admission to the satisfaction by the
judgment creditor/counsel Partial execution of the judgment is not included in the above enumeration of the
3. Endorsement of such admission by the judgment creditor legal grounds for the discharge of a garnishment order.
or his counsel
Campillo: A notice of levy on execution cannot prevail over an existing adverse
Cases: claim inscribed on the title. This is because the judgment creditor’s title is subject to
the title of the judgment debtor.
Fiestan:

 The formalities of a levy, as an essential requisite of a valid execution sale


under Section 15 of Rule 39 and a valid attachment lien under Rule 57 of the
Rules of Court, are not basic requirements before an extrajudicially foreclosed
property can be sold at public auction.
 At the outset, distinction should be made of the three different kinds of sales
under the law, namely: an ordinary execution sale, a judicial foreclosure sale,
and an extrajudicial foreclosure sale, because a different set of law applies to
each class of sale mentioned.
o An ordinary execution sale is governed by the pertinent provisions of
Rule 39 of the Rules of Court.
o Rule 68 of the Rules of Court applies in cases of judicial foreclosure
sale.
o On the other hand, Act No. 3135, as amended by Act No. 4118
otherwise known as "An Act to Regulate the Sale of Property under
Special Powers Inserted in or Annexed to Real Estate Mortgages"
applies in cases of extrajudicial foreclosure sale.
 Levy, as understood under Section 15, Rule 39 of the Rules of Court in relation
to execution of money judgments, has been defined by this Court as 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

Manila Remnant:

 Garnishment is a species of attachment for reaching credits belonging to the


judgment debtor and owing to him from a stranger to the litigation. It is an
attachment by means of which the plaintiff seeks to subject to his claim
property of the defendant in the hands of a third person or money owed by
such third person or garnishee to the defendant. The rules on attachment also
apply to garnishment proceedings

A garnishment order shall be lifted if it established that:

(a) the party whose accounts have been garnished has posted a counterbond or has
made the requisite cash deposit;
(b) the order was improperly or irregularly issued as where there is no ground for
garnishment 7 or the affidavit and/or bond filed therefor are defective or
insufficient;

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 57: Preliminary Attachment GROUNDS 1. An action for recovery of specified amount of money or
damages (but not moral and exemplary damages)on a cause
NATURE OF Olib v. Pastoral/Davao Light of action arising from a contract, quasi-contract, delict, quasi-
PRELIMINARY delict against a party who is about to depart from the
ATTACHMENT Attachment is defined as a provisional remedy by which the Philippines with intent to defraud creditors (usually a collection
property of an adverse party is taken into legal custody, either at case or damages case)
the commencement of the action or at any time thereafter, as a 2. An action for embezzled money/property:
security for the satisfaction of any judgment (keyword: S-S-J) a. OR money/ property fraudulently misapplied (to his
that may be recovered by the plaintiff or any other proper party. own use) by a public officer, officer of a corporation,
attorney, factor, broker, agent or clerk in the course
 AUXILIARY: It is an AUXILIARY remedy that cannot have an of his employment as such OR by any other person in
independent existence apart from the main suit or claim a fiduciary capacity OR for a willful violation of duty
instituted by the plaintiff against the defendant. Thus, the 3. An action to recover property fraudulently or unjustly
attachment must fail if the suit itself cannot be maintained. taken, detained, or converted when the property or any part
 USUALLY INCORPORATED in COMPLAINT: The thereof has been concealed, removed or disposed to prevent
plaintiff/other proper party incorporates the application for its being found or taken
attachment in the complaint or other appropriate pleading. 4. An action involving fraud in contracting or performing
 CAN BE ISSUED EVEN BEFORE ACQUIRING obligations
JURISDICTION OVER DEFENDANT: as long as the action 5. An action against a party who has removed or disposed of
has been properly commenced. his property or about to do so with intent to defraud his
 NOTICE AND HEARING REQUIREMENTS: notice and creditors
hearing is not mandatory for the issuance of a writ of 6. An action against a party who does not reside and is not
attachment. The only requisite is that the court is satisfied found in the Philippines or on whom summons may be
upon consideration of the affidavit of the applicant that a served by publication
sufficient cause of action exists and that the case is one ISSUANCE AND Sec 2 provides that:
mentioned in Sec 1 of Rule 57. CONTENTS OF
 EFFECT OF APPEAL: The consequence is that where the main ORDER  An order of attachment may be issued either ex-parte OR
action is appealed, the attachment which may have been upon motion with notice and hearing in the court where the
issued as an incident of that action is also considered appealed action is pending, or by the CA, or the SC.
AND so removed from the jurisdiction of the court appealed  Contents: Court will order sheriff to attach so much of the
from. property in the Philippines of the party against whom it is
 NO PRINCIPAL CASE FOR ATTACHMENT: The attachment issued as may be sufficient to satisfy the applicant’s demand
itself cannot be the subject of a separate case independent of o BUT the party against whom it is issued MAY make a
the principal action because of its auxiliary nature. DEPOSIT or file a bond, the amount of which should
 ORDER OF JUDGE DENYING A MOTION FOR ANNULMENT be enough to satisfy the amount in the order 
OF WRIT OF PRELIM ATTACHMENT IS INTERLOCUTORY: bond vs. the ORDER of attachment
Hence, it cannot be appealed. Rule 65 is the remedy.
 HOWEVER when the writ of prelim attachment becomes Sec 3 provides for the requirements for a writ of attachment to be
final by virtue of a final judgment in the principal case, the issued: (AFFIDAVIT + BOND filed with the court)
writ itself is subject to appeal (jointly with the judgment
rendered in the main case) 1. AFFIDAVIT: by applicant or by another person who
 A bond is not deemed extinguished by reason alone of its non- personally knows the facts  must show:
payment (see below) a. a sufficient cause of action
 Order of attachment is considered discharged ONLY where the b. one/more enumerated grounds are present
judgment has become final and executory and not when it is c. there is no other sufficient security for the claim
still in appeal. sought to be enforced by the action
d. the amount due to the applicant, or the value of
the property the possession of which he is
WHEN FILED? 1. At the commencement of the action (filing of the complaint OR entitled to recover, is as much as the sum for
2. At any time before entry of judgment which the order is granted above all
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counterclaims the attachment on the ground that it was


2. BOND: applicant must give a bond executed to the adverse improperly issued or irregularly enforced or that
party in the amount fixed by the court, with the condition that the bond filed by attaching party is insufficient
the applicant will pay all the costs to the adverse party and all 3. If attaching party loses the case (judgment rendered
damages which he may sustain by reason of the attachment if against him): all the proceeds of sales and money collected
the court shall finally adjudge that the applicant was not or received by the sheriff under the order of attachment AND
entitled thereto all property attached remaining ith the sheriff shall be
WHEN ISSUED BACKGROUND FIRST: delivered to the attachee and the order of attachment shall be
EX-PARTE, discharged
REQUIREMENTS 3 stages in writ of attachment WHEN 3RD PROCEDURE:
WHEN ISSUED PARTY CLAIMS
EX-PARTE 1. Grant of application for writ of attachment (no jurisdiction over THE PROPERTY 1. Third party must make an affidavit showing his title to the
defendant is required) ATTACHED property OR right to possess it.
2. Issuance of writ of attachment (no jurisdiction over defendant 2. He must then serve the affidavit upon the sheriff while sheriff
is required) has POSSESSION or BEFORE PUBLIC AUCTION
3. Execution/implementation of writ of attachment (jurisdiction 3. Once the sheriff is served the affidavit, he is no longer bound
over defendant is required  he must be served summons) to keep the property under attachment UNLESS the attaching
party makes a bond to indemnify the third party claimant in a
Sec 5 provides for the following: manner of enforcing + provision sum not less than the value of the property levied upon. This
for counterbond bond will protect the sheriff from liability for damages.
4. In case of disagreement as to such value, it shall be decided
The sheriff enforcing the writ shall without delay attach, to await by the court issuing the writ of attachment.
judgment and execution in the action, only so much of the 5. For a claim for damages by the third party/attachee against
property in the Philippines of the party against whom the writ is the bond due to the taking or keeping of the property to
issued as may be sufficient to satisfy applicant’s demand UNLESS prosper, it must be filed within 120 days from the date of
the attachee makes a deposit or gives a counter-bond executed the filing of the bond (of the attaching party referred to in
to the applicant in an amount equal to the bond fixed by the court #3)
in the order of attachment or to the value of the property to be 6. When attacher is RP, the filing of the bond in #3 is NOT
attached  bond to prevent attachment required.
SATISFACTION If attacher wins and gets a writ of execution on the judgment, the
IMPORTANT: There can be no levy on attachment unless it is OF JUDGMENT sheriff may sell the attached property to satisfy the judgment  in
preceded or contemporaneously accompanied by service of OUT OF the following manner:
summons PROPERTY
ATTACHED 1. Paying to judgment creditor the proceeds of all sales of
HOWEVER  service of summons is not required where: perishable or other property
1. The summons could not be served personally or by 2. If there’s a balance (if kulang), by selling so much of the
substituted service despite diligent efforts property necessary to satisfy the balance
2. Defendant is a Philippine resident who is temporarily 3. By collecting from all persons having in their possession
abroad credits belonging to the judgment debtor OR from collecting
3. The defendant is a non-resident debts due to the judgment debtor.
4. The action is one in rem/quasi in rem (like in
Valmonte) CLAIM FOR When must it be filed?
DISCHARGE OF 1. Sec 12 (upon giving counterbond): After the writ of DAMAGES ON
ATTACHMENT attachment has been enforced, the attachee may move for the ACCOUNT OF
discharge wholly or in part upon filing a counterbond or cash IMPROPER, IF in RTC/MTC
deposit  to the attaching party in an amount equal to the IRREGULAR OR
order of attachment EXCESSIVE 1. Before trial
2. Other grounds (Sec 13) ATTACHMENT 2. Before appeal is perfected
a. BEFORE or AFTER Levy (kahit bago makuha): 3. Before judgment becomes executory
attachee may motion for an order to discharge
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Such damages may be awarded only after proper hearing and shall
be included in the judgment on the main case (even if attachee
loses in main case, he may still be awarded damages for improper,
irregular or excessive attachment)

IF in APPELLATE COURT

If appellate court judgment is in favor of attachee, he must claim


damages sustained during the pendency of the appeal by filing an
application in the appellate court before the judgment of the
appellate court becomes executory.

The appellate court may allow the application for damages to be


heard and decided by the trial court.

HOWEVER attachee is not prevented from recovering in the


same action the damages awarded him from any property of the
attaching party not exempt from execution should the bond or
deposit given by the attaching property be insufficient

Davao Light and Power Co Inc, v. CA

Writs of attachment may properly issue ex parte provided that the Court is satisfied
that the relevant requisites therefor have been fulfilled by the applicant, although it
may, in its discretion, require prior hearing on the application with notice to the
defendant; but that levy on property pursuant to the writ thus issued may not be
validly effected unless preceded, or contemporaneously accompanied, by service on
the defendant of summons, a copy of the complaint (and of the appointment of
guardian ad litem, if any), the application for attachment (if not incorporated in but
submitted separately from the complaint), the order of attachment, and the
plaintiff's attachment bond

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 58: Preliminary Injunction NOTICE IN CASE OF APPLICATION FOR PRELIM INJ IN
MULTI-SALA COURT: In any event, the notice shall be preceded
Prelim  A preliminary injunction is a preventive remedy. or simultaneously accompanied by service of summons upon the
injunction  It is an order granted at ANY stage of an action or adverse party in the Philippines together with the
defined proceeding PRIOR to the judgment or final order, complaint/initiatory pleading
requiring a party, court, agency or person to REFRAIN from
doing particular act/acts. However, where the summons could not be personally served or
 PRELIMINARY MANDATORY INJUNCTION: Requires the by cannot be served by substituted service despite diligent efforts,
performance of a particular act or acts. or the adverse party is a resident of the Phils and temporarily
Nature and  To preserve the status quo of the things subject of the action absent or when he is a non-resident, the requirement of PRIOR or
Purpose of or the relations between the parties and thus protect the CONTEMPORANEOUS service shall not apply
Prelim rights of the plaintiff during the pendency of the suit.
injunction  It cannot protect contingent or future rights. The possibility WHEN BOND NOT REQUIRED: WHEN TRO is PRAYED FOR: The
of irreparable damage, without proof of violation of an actual application for a TRO shall then be acted upon only after all
or existing right, is not a ground of injunction. parties are heard in a summary hearing which shall be done
Grounds for A preliminary injunction may be granted when it is established within 24 hours after the sheriff’s return of service and/or the
issuance that: records are received by the branch selected by raffle and to which
the records shall be transmitted immediately.
1. The applicant is entitled to the relief demanded and the
relief consists in the restraining the commission or NOTE: In preliminary injunction, applicant’s bond is mandatory.
continuance of the act or acts complained of, or in In TRO, applicant’s bond is not mandatory. Only summary hearing
requiring the performance of an act or acts, either for a required.
limited period or perpetually Who may 1. Where the action or proceeding is pending
2. The commission, continuance or non-performance of the act grant
or acts complained of during litigation would probably work preliminary As an example:
injustice to the applicant injunction  File in MTC (in cases of pending FEUD cases or actions not
3. That a party, court, agency, or a person is doing, threatening exceeding 20k/50k as the case may be
or is attempting to do, or is procuring something to be done,  File in RTC (in cases of specific performance for example
some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or 2. If the action is already pending in the CA/SC, it may be
proceeding, and tending to render the judgment issued by said court of any member thereof
ineffectual
HOWEVER you can’t file a petition for injunction as a main action
Technical Requirements: (verified+bond) in the CA or SC (usually, actions under rule 65 get to the CA/SC
1. VERIFIED: The application in the action is verified and and additionally, injunction is prayed for)
shows facts entitling applicant to the relief demanded Sec 5: GR: No preliminary injunction shall be granted without hearing
2. BOND: UNLESS exempted by the court, the applicant files Preliminary and prior notice to the party or persons sought to be enjoined.
with the court where the action or proceeding is pending, a injunction not
bond executed to the party or person enjoined, in an granted EX:
amount fixed by the court, to the effect that the applicant without notice
will pay to such party/person ALL damages which he may and its 1. 20 DAY TRO instead (by the TC): If it shall appear from
sustain by reason of the injunction/TRO if the court should exception facts shown by affidavits or by the verified application that
finally decide that the applicant was not entitled thereto. great or irreparable injury would result to the applicant
before matter can be heard on notice. In this case, the court
PROCEDURE IN MULTI-SALA COURT: When an application for may issue ex-parte a 20 day TRO (in this case, Prelim INJ
a writ of PI or TRO is included in a complaint or initiatory was prayed for but TRO will instead be granted)
pleading, the case, if filed in a multiple-sala court, shall be raffled 2. 72 HOUR TRO in MULTI-SALA COURT: If matter is of
only after notice to and in the presence of the adverse party or extreme urgency and the applicant will suffer grave
person sought to be enjoined. injustice and irreparable injury, the executive judge of a
multi-sala court may issue a 72 hour TRO. After 72 hours, the
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judge before whom the case is pending will then decide in technical cases  as when mere questions of law
whether to extend the TRO until the application for PRELIM are involved, injunction will lie against these cases.
INJ can be heard. However, in no case shall the 72 hour TRO When 1. Petition for relief (38)
exceed 20 days (including the 72 hours already) injunction 2. Petition for CPM (65) (to restrain respondent)
a. In the event that the application for preliminary proper 3. Actions for annulment of judgment
injunction is denied or not resolved within the 4. Restrain continued breach of valid negative (don’t do)
said 20 day period, the TRO is deemed obligation
automatically vacated. Its effectivity is non- 5. Restrain abatement of nuisance per accidens while
extendible without need of any judicial determination of nuisance is pending
declaration to that effect and no court shall have
authority to extend or renew it on the same Cases:
ground it was issued (however, TRO life can be
extended if BOTH parties ask for it) 1. Decano v. Edu: D was dismissed from service (as a janitor) by E. He was
3. CA TRO: if CA or a member thereof issues a TRO, it shall last merely a temporary appointee of an administrative agency. D then filed a
for 60 days from service. petition for injunction and mandamus in Pangasinan RTC to prevent his
4. SC TRO: If SC issues, it is effective until further orders dismissal. The official station however of E, is in Quezon City so E was arguing
that the Pangasinan RTC did not have jurisdiction. The SC held that where the
IMPORTANT: the trial court, the CA, the SB or the CTA that main action is the annulment of the action of the respondent AND injunction is
issued a writ of prelim inj against a lower court, board, officer, or merely ancillary, the trial court of the locality where questioned act (the
QJ agency shall decide the main case or petition within 6 dismissal) to be implemented has jurisdiction. In this case, the implementation
months from the issuance of the writ. of the dismissal order was to be made in Pangasinan hence the court had
Objections to  The application for injunction or restraining order may be jurisdiction.
or dissolution denied, upon a showing of its insufficiency. 2. Versoza v. CA:
of injunction  It may also be denied or, if granted, may be dissolved, on a. F owned a parcel of land. He mortgaged it to V. F failed to pay so V
other grounds upon affidavits of the party/person enjoined foreclosed.
 COUNTERBOND: It may also be further denied or if granted, b. To prevent this, F filed a complaint against V for annulment of
may be dissolved IF after hearing that although the applicant mortgage with prayer for writ of prelim inj. It was initially
is ENTITLED to injunction or restraining order, the issuance or dismissed because of improper verification but F’s MR was
continuance thereof, would cause irreparable damage to the granted and the amended complaint was admitted.
party/person enjoined and the party/person enjoined files c. V filed a petition for certiorari, alleging that the TC committed GADLEJ
a bond in an amount fixed by the court with the in admitting the complaint. Certiorari was denied.
condition that he will pay all damages which applicant d. However, auction proceeded and V won the auction sale. After
may suffer by the denial or dissolution of the injunction expiration of the redemption period, a TCT was issued in V’s name. V
or restraining order. then sold it to M who was issued his own TCT.
When final  IF AFTER TRIAL, it appears that the applicant is entitled to e. In the meantime, F applied for a prelim inj against M, the new owner
injunction have the act/acts complained of permanently enjoined, the as per the title. Court granted the injunction INSOFAR as F’s right to
granted court shall grant a final injunction perpetually restraining the possess the land is concerned
party or person enjoined from the commission or continuance f. The issue is w/n F is entitled to injunction when the act complained of
of the acts or acts OR confirming the preliminary mandatory has already been consummated (in this case, F wanted to ANNUL the
injunction mortgage STOP the foreclosure but it was already done)
When 1. PD 605: cases involving licenses and other permits issued b i. SC Ruling: In this case, F was still the owner and was in
injunction public administrative officials for exploitation of natural possession of the property at the time the original complaint
IMPROPER resources was filed (annulment of mortgage)
2. PD 1818: cases involving infrastructure and natural resources ii. GR: where the acts sought to be enjoined have already been
projects of public utilities operated by government performed prior to filing for injunction, the consummated acts
3. PD 385: against any government financing institution taking cannot be restrained
foreclosure of loans of which at least 20% thereof are iii. EX: However, where the acts are performed AFTER the
outstanding injunction suit is commenced, a defendant may not as a
a. EXCEPTION to these laws: When it does not involve matter of right proceed to perform the acts sought to be
administrative acts that involve exercise of discretion restrained. He proceeds at his own peril. In this case, he still
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

proceeded with the foreclosure and the eventual sale to M


notwithstanding the fact that F already brought an injunction
suit to restrain him from doing so.

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 59: Receivership appointed be subject to the control of the said court
OTHER TYPES OF 1. Receivership in aid of execution of judgment under Rule
WHAT IS Normandy v. Duque: A receiver is a representative of the RECEIVERSHIP 39:
RECEIVERSHIP? court appointed for the purpose of preserving and conserving 2. Bank receivership
the property in litigation and prevent its possible destruction or 3. Insolvency receivership
dissipation (if it was instead left in the possession of any othe DUE PROCESS Notice and hearing is required before a receiver is appointed.
parties) REQUIREMENT
It is incumbent upon the applicant to present evidence to
The receiver is not the representative of any of the parties but establish the condition precedent that the property is in danger
of all of them to the end that their interests may be equally be of being lost, removed or materially injured unless receiver is
protected. appointed to preserve it.
PRELIMINARY  An application for receivership must be VERIFIED.
CONSIDERATIONS  This application is filed by one or more persons Otherwise put, applicant must present evidence to prove that
 He/They must file it in the court where the action is the cases enumerated above are indeed existing.
pending. ADDITIONAL 1. Before an order appointing a receiver is issued, the
 After which, they may be appointed by the court as REQUIREMENTS applicant is required to file a bond executed to the party
receivers where the action is pending, by the CA, or by the against whom thee application is presented
SC, or by a member of CA/SC APPLICANT’S a. Purpose: If the applicant procured the
CASES WHERE The cases may be divided into three groups. First group would BOND receivership without sufficient cause, the party
RECEIVERSHIP be during a pending action (1&2). Second group would be RECEIVER’S OATH against whom it is directed will be compensated
MAY BE AFTER judgment (3) and miscellaneous (4) RECEIVER’S BOND by the bond for the damages he may suffer due to
APPOINTED the order
1. When it appears from the application that the party 2. Before a receiver enters his duties, he shall swear to
D-DANGER applying for the appointment of a receiver has an interest perform his duties faithfully and also file another bond
M-MORTGAGE in the property or fund which is the subject of the action attesting that he will faithfully discharge his duties in the
P-PENDENCY OF or proceeding and that such property or fund is in danger action and obey the orders of the court
APPEAL of being lost, removed, or materially injured unless a INSTANCES WHEN 1. DISCHARGE IF WITHOUT CAUSE: Receiver may be
A-AID EXECUTION receiver be appointed to administer and preserve it APPLICATION FOR discharged if it is shown that his appointment was obtained
C-CARRY OUT 2. When it appears in an action by the mortgagee for the RECEIVERSHIP IS without sufficient cause. This requires a motion filed by
JUDGMENT foreclosure that the property is in danger of being DENIED OR A the adverse party with prior notice to the receiver
O-OTHERS wasted or dissipated or materially injured and that its RECEIVER IS 2. DENY OR DISCHARGE IF COUNTERBOND IS FILED: If
value is probably insufficient to discharge the DISCHARGED adverse party files a counterbond, application for
DAMPCO mortgage debt, or that the parties have so stipulated receivership may be denied or receiver may be discharged.
in the contract of mortgage a. Counterbond: The adverse party will pay the
3. After judgment to preserve the property applicant all damages he (applicant) may suffer by
a. during the pendency of the appeal, or reason of the acts, omissions or other matters
b. to dispose of it according to the judgment, or specified in the application as ground for such
c. to aid execution when the execution has been appointment
returned unsatisfied or the judgment debtor 3. IF APPLICANT/RECEIVER’s BOND is INSUFFICIENT:
refuses to apply his property in satisfaction of the If either the applicant’s or receiver’s bond is found to be
judgment insufficient or if the sureties thereon fail to justify, the
d. to carry out the judgment into effect application shall be denied or the receiver will be
4. In other cases, when it appears that the appointment of a discharged as the case may be.
receiver is the most convenient and feasible means of SERVICES OF Both the applicant and the adverse party may be required/may
preserving, administering or disposing the property in COPIES OF BONDS file bonds in accordance with this rule. Any person filing a bond
litigation in accordance with this rule shall serve a copy on each interest
party, who may challenge to the insufficiency of the bond or of
 During the pendency of an appeal, the appellate court may the sureties thereon.
allow an application for the appointment of a receiver to be GENERAL POWERS 1. Power to bring and defend in his capacity as receiver
filed in and decided by the court of origin and the receiver OF RECEIVER actions in his own name
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

2. To take and keep possession of the property in controversy


3. To receive rents
4. To collect debts due to himself as receiver or to the fund,
property, estate, person or corporation of which he is a
receiver
5. To compound for or compromise the same
6. To make transfers
7. To pay outstanding debts
8. To divide 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 authorized

What if the receiver wants to invest the funds in his


possession/control due to the receivership?

He must get a court order + written consent of all the parties to


the action

IMPORTANT: No action may be filed by or against a receiver


without leave of court which appointed him.
WHEN CAN Whenever the court, on its own (motu proprio) or upon motion
RECEIVERSHIP BE of either party, shall determine that the necessity of a receiver
TERMINATED? no longer exists, it shall (after due notice to all parties and
hearing them)
1. Direct the delivery of the funds and other property in
the receiver’s possession to the person adjudged to be
entitled to receive them
2. Order the discharge of the receiver from further duty
as such
3. Allow the receiver reasonable compensation as the
circumstances may warrant

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 60: Replevin under custodia legis


4. The actual market value of property
ALL ABOUT Replevin: It may refer to the action itself (action to regain
REPLEVIN possession of chattels wrongfully detained) or a provisional BOND:
remedy (allow the plaintiff to retain the thing during the
BA FINANCE + penedency of the action and hold on to it)  The applicant must also give a bond, executed to the
CHIAO LIONG TAN adverse party.
 A writ of replevin is partly an action in rem and an action in  It must be DOUBLE the value of the property.
personam  The bond is also for the return of the property to the
o In rem: insofar as the recovery of specific property adverse party if the return is adjudged by the court
is concerned CAN IT BE ISSUED No. However, under rule 57 (attachment), property in custodia
o In personam: insofar as the damages involved are AGAINST legis may be attached
concerned PROPERTY IN
 The person in possession of the property sought to be CUSTODIAL EGIS?
replevied is ordinarily the proper and only necessary party ORDER TO Upon the filing of affidavit and the bond, the court shall issue an
defendant. DELIVER order and the corresponding writ of replevin
 The 3rd parties claiming the property, but are not in PROPERTY
possession thereof, is not required to be joined. However, The writ describes the personal property to be wrongfully
see digest of BA Finance below. It is different when 3 rd detained and requiring the sheriff to take such property into
party in possession is involved. custody
 Primarily, the action for replevin is only possessory in
character and determines nothing more than the right to SHERIFF’S DUTY: Upon receiving the order, the sheriff must
possession. HOWEVER when the title to the property is serve a copy to the adverse party and take the property if it is
distinctly put in issue by the defendant’s plea, the question in his possession and retain it in his custody.
of ownership may also be resolved in the same proceeding. IF the property or any party thereof is concealed in a building or
 Also, although a replevin action is one for recovery of enclosure, the sheriff must demand its delivery.
possession of personalty, the court can settle issues of
ownership, for the rerurn of the repleived property, or IF it is not delivered, he must break open the building or
secure a judgment for the value of the property in the enclosure to take the property into his possession.
case. NOTICE AND The order of the writ of replevin is issued ex parte (w/o
APPLICATION A party praying for the recovery of possession of personal HEARING hearing) as long as the requisites (affidavit + bond) are
property may apply for an order for the delivery of such REQUIREMENT present.
property to him at the following instances: WHEN MAY IF THE ADVERSE PARTY OBJECTS TO THE SUFFICIENCY
1. At commencement of the action PROPERTY BE OF THE BOND/SURETIES: he cannot immediately require the
2. Any time before the answer RETURNED return of the property (the court will decide first)
AFFIDAVIT/BOND AFFIDAVIT:
REQUIREMENT IF HE DOES NOT OBJECT: At any time before the delivery of
The applicant must show by his own affidavit or that of some the property to the applicant, he may require the return of the
other person who personally knows the facts the following: property by filing a counterbond (executed to the applicant,
1. That the applicant is the owner of the property also double the value of the property)
claimed, particularly describing it or that the applicant HOW DOES THE The property shall be delivered to the applicant in the following
is entitled to the possession SHERIFF DISPOSE instances:
2. That the property is wrongfully detained by the OF THE PROPERTY
adverse party, alleging the cause of detention thereof  If within 5 days after the taking of the property by the
to the best of his knowledge, information and belief sheriff, the adverse party does not object to the sufficiency
3. That the property has not been distrained or taken of the bond, or of the surety or sureties thereon
for a tax assessment or a fine pursuant to law OR  If the adverse party objects and the court affirms its
seized under a writ of execution or preliminary approval of the bond or approves a new bond
attachment (if seized, it must be shown that it is  If the adverse party requires the return of the property but
exempt from seizure or custody) or otherwise placed his bond is objected to and found insufficient and he does
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

not file an approved bond

HOWEVER, if for some reason, the property is not delivered to


the applicant, the sheriff must return it to the adverse party

TAKE NOTE:
 Property seized by the sheriff shall not to be delivered
immediately to the applicant. Sheriff must retain in custody
for 5 days and shall return it to the defendant if he files a
counterbond.
 Counterbound must be filed within 5 days from the taking.
The period is mandatory.

Cases:

1. BA FINANCE: A owed B 86k. A mortgaged his car (CM) and made a PN in


favor of B to secure the loan. B assigned the CM and the PN to C, a collection
agency. B, mortgagor, failed to pay. The mortgaged car, however, was in the
possession of R, an adverse possessor and also a creditor of A. C filed for a writ
of replevin against R. This was denied because A, the original mortgagor-
debtor, was not duly served summons hence no jurisdiction was
acquired over him. The SC held that he original mortgagor must be
impleaded (hence is an indispensable party) in a case where a third party is
involved (in this case, R) to fully determine the rights of the parties. Applying it
in the case at bar, A must be impleaded for C to properly maintain an action for
replevin against R, a third party adverse possessor.
a. A chattel mortgagee, unlike a pledgee, need not be in possession of
the property unless and until the mortgagor defaults and the
mortgagee seeks to foreclose. Since the mortgagee’s right of
possession is conditioned upon the actual fact of default, the inclusion
of other parties (like the debtor or the mortgagor himself, may be
required in order to allow a full determination of the case)
b. Hence, when a mortgagee seeks a replevin in order to effect the
eventual foreclosure of the mortgage, the default of the mortgagor
must be shown by the mortgagee. The mortgagee must establish this
in order to avail of the writ of replevin.
2. Northern Motors v. Herrera
a. The mortgagee in a CM has a right to the possession of the property
mortgaged upon default (or any breach of mortgage contract)
b. When the debtor defaults and the creditor wants to foreclose, he must
take possession of the mortgaged property. By the debtor’s default
(once proven and substantiated), the mortgagee is entitled to
possession of the mortgaged property.
c. However, if the debtor does not want to yield the property, the
creditor must institute an action either effect judicial foreclosure, or
to secure possession (through writ of replevin) as a preliminary step to
the sale.

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Comparison and Review of the 3 PROVISIONAL REMEDIES: PRELIMINARY NOTICE AND May be issued ex- None required. Can Notice and hearing
ATTACHMENT, INJUNCTION and REPLEVIN HEARING parte or upon motion be issued ex parte GENERALLY required.
BEFORE with notice and However, if it is
PRELIM REPLEVIN: RULE 60 INJUNCTION; RULE ISSUANCE hearing. shown that there is
ATTACHMENT: Rule 58 possible great or
57 irreparable injury, a
GROUNDS One will suffice: All must be One will suffice: 20 day TRO may be
Action: established: ordered
1.to recover specified 1. That the applicant PROCEDURE AS Same. Not applicable
amount 1.That the applicant is entitled to the relief TO THIRD
2.involving is the owner of the demanded and the PARTY CLAIM What must third party (who’s claiming
embezzled money property claimed, relief consists in attached property) do?
3.recover fraudulently particularly describing restraining the  Make an affidavit stating his title and
taken money it or that the commission or grounds for his title/right to possess
4.fraud in contracting applicant is entitled continuance of the act  Serve the affidavit on the sheriff when the
or performing to the possession or acts complained of sheriff still has possession of the property
obligations 2.That the property is or in requiring the  A copy of the affidavit must be served on
5.against party who wrongfully performance of an the attaching property
has removed or detained by the act/acts either for a
disposed of property adverse party, limited time or What is the effect?
to defraud creditors alleging the cause of perpetually The sheriff shall not be bound to keep the
6.non-resident detention thereof to 2.The commission, property under attachment
defendant the best of his continuance or non-
knowledge, performance of the Remedy of attaching party
information and belief act complained of File a bond to indemnify the third party
3.That the property during litigation would claimant in a sum not less than the value of
has not been probably work the property levied
distrained or taken injustice to the RECOVERY Sec 20 of Rule 57 provides the following:
for a tax assessment applicant AGAINST
or a fine pursuant to 3.That a party, court, SURETIES  TRIAL COURT LEVEL: An application for damages on account of
law OR seized under agency or a person id improper, irregular or excessive attachment must be filed
a writ of execution or doing, threatening or o BEFORE the trial or
preliminary attempting to do, or o BEFORE appeal is perfected or
attachment (if seized, is procuring or o BEFORE the judgment becomes executory
it must be shown that suffering to be done, (ALL) with due notice to the attaching party and his
it is exempt from some act or acts surety/sureties
seizure or custody) or probably in violation  The damages may be awarded only after proper hearing and shall
otherwise placed of the rights of the be included in the judgment on the main case
under custodia legis applicant  APPELLATE LEVEL: Assuming the appeal as perfected IF the
4. The actual market judgment on the appellate court is favorable to the adverse party,
value of property he must claim damages sustained during the pendency of the
AFFIDAVIT AND Applicant must make Applicant must make Verified application appeal by filing an application in the appellate court, with notice to
BOND an affidavit and file a an affidavit and file a and applicant must the party in whose favor the remedy was issued or his
bond (in favor of bond (in favor of file a bond (in favor of surety/sureties BEFORE the judgment of the appellate court
adverse party) adverse party) BUT adverse party) becomes executory
bond must be double  The adverse party MAY also recover in the same action the
Adverse party can file the value damages awarded to him from any property of the attaching
a counterbond to property not exempt from execution should the bond or deposit
discharge the Adverse party can file given by the attaching party is insufficient
attachment a counterbond to
have the property
returned

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 61: Support Pendente Lite

WHEN CAN ONE At the commencement of the action or proceeding OR


APPLY FOR At any time prior to the judgment or final order
SUPPORT
PENDENT LITE A verified application for support pendent lite may be filed by
any party stating the grounds for the claim and the financial
conditions of both parties, and accompanied by affidavits,
depositions or other authentic documents in support thereof
COMMENT A copy of the application and all supporting documents shall be
served upon the adverse party who shall have 5 days to
comment. Comment shall be verified.
HEARING After comment is filed, or after expiration for period to file
REQUIREMENTS comment, the application shall be set for hearing.
ORDER The court shall provisionally determine the facts and render
orders that justice may require.

IF application is granted, the court shall fix the amount of money


to be provisionally paid or such other forms of support as should
be provided.

IF application is denied, the case shall be tried and decided as


early as possible
ENFORCEMENT IF the adverse party fails to comply with an order granting SPL,
OF ORDER the court shall motu proprio or upon motion, issue an order of
execution against him.

This is without prejudice to being cited for contempt.

If a third person who furnished support to the applicant because


the person ordered to do so did not, he may, after due notice
and hearing, obtain a writ of execution to enforce a right of
reimbursement against the person ordered to provide such
support.
SUPPORT 1. Habeas corpus case filed by the mother on behalf of a minor
PENDENT LITE IN child against the father, where the father has recognized the
OTHER ACTIONS child as his own and has not been giving him support
2. Rape cases for the offspring of the accused as a
consequence thereof.

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

(Special Civil Actions) Rule 62: Interpleader denied, petition for certiorari rule 65.

WHEN IS 1. Whenever conflicting claims upon the same subject matter IMPORTANT: ―5 days in any event” applies in interpleader.
INTERPLEADER are or may be made against a person who claims no How?
PROPER? interest (at all) in the subject matter OR
2. There are conflicting claims upon the same SM that The period to answer shall be tolled and if the MTD is denied,
are/may be made against a person who claims an the movant may file his answer within the remaining period,
interest which is not disputed by the claimants which shall not be less than 5 days in any event, reckoned
from the notice of denial.
That person (called plaintiff-in-interpleader) may bring an ANSWER/DEFAULT Each claimant shall file his answer setting forth his claim within
action against the conflicting claimants the compel them to / PLEADINGS 15 days from service of summons.
interplead and litigate their several claims among themselves
(e.g. in lease contracts [two people claiming the right to If any claimant fails to plead within the time fixed, the court
collect rent], warehouseman) may, on motion, declare him in default and bar him from any
claim with respect to the SM.
Indispensable element of interpleader: conflicting claims
upon the same SM are/may be made against the plaintiff-in- Cross-claims, counterclaims, 3rd party complaints and
interpleader who claims no interest whatsoever in the subject responsive pleadings can be filed
matter.
After the pleadings of the conflicting claimants have been filed,
Beltran v. People’s Homesite: and pre-trial has been conducted, the court shall proceed to
determine the rights of the claimants
Purpose of Interpleader: A person who has property in his FEES Docket/lawful fess shall be paid by the party who filed the
possession or has an obligation to render wholly or partially, complaint
without claiming a right in both, comes to court and asks that
the defendants (who have made upon him 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 of an obligation.

In this case, the residents of Subdivision A filed a complaint for


interpleader so that Corp A and Corp B could settle their
conflicting claims over the management and ownership of the
land where Subdivision A sits. This was denied however,
because Corp A and Corp B did not have conflicting claims as
regards the plaintiffs-in-interpleader. They only had conflicting
claims as between themselves. Corp A or Corp B did not make
any claims (for rentals) against the residents of Subdivision A.
ORDER Upon the filing of the complaint, the court shall issue an order
requiring the conflicting claimants to interplead with one
another.

If the interests of justice require, the court may also direct in


such order that the SM be paid or delivered to the court
SUMMONS Summons shall be served on the conflicting claimants
MOTION TO Within the time for filing an answer, each claimant may file a
DISMISS motion to dismiss on the ground of the impropriety of the
interpleader citing the grounds mentioned in Rule 16.  If
MTD is granted, plaintiff-in-interpleader can appeal. If MTD is
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 63: Declaratory Relief and Similar Remedies not terminate the controversy which gave rise to the action
OR in any case where the declaration or construction is NOT
WHO MAY FILE A Any person interested under the following may bring an action necessary and proper under the circumstances
PETITION FOR in the appropriate Regional Trial Court (RTC has EXCLUSIVE WHEN CONVERTED If before the termination of the case for declaratory relief
DECLARATORY jurisdiction) to determine any question of construction or INTO AN ORDINARY (during pendency), a breach or violation of an instrument or
RELIEF? validity of AND for a declaration of rights and duties under ACTION statute, eo or regulation, ordinance should take place, the
action may be converted into an ordinary action and the
DISCRETIONARY [for court to take cognizance] parties shall be allowed to file such pleadings as may be
1. A deed (private docs) necessary or proper
2. A Will (private docs)
3. A Contract/written instrument (private docs) *Note: Can’t nullify laws, contracts, etc.
4. A statute, EO or regulation, ordinance or any other
government regulation (public issuances)

An action for the following may also brought under this rule:

MANDATORY [for court to take cognizance]


1. Reformation of an instrument
2. To quiet title to real property and remove clouds
3. To consolidate ownership under CC Art 1607

Requisites:

1. Existence of justiciable controversy


2. The controversy is between persons whose interests are
adverse
3. That the party seeking relief has a legal interest in the
controversy
4. The issue involved is ripe for judicial determination

Ollada v. Central Bank: A complaint for declaratory relief will


not prosper if filed after a contract, statute or right has been
breached or violated.
PARTIES INVOLVED All persons who have or claim any interest which would be
affected by the declaration shall be made parties. No
declaration, except as provided, prejudice the rights of persons
who are not parties to the action
WHEN SOLGEN In any action which involves the validity of a statute, EO or
REQUIRED regulation, the Solgen shall be notified by the party assailing
the same and the Solgen shall be entitled to be heard
WHEN IT IS ABOUT When it is involving the validity of the local government
LOCAL ordinance, the corresponding prosecutor/atty of the LGU shall
GOVERNMENT be also heard and notified (like the Solgen)
ORDINANCES
However, if such ordinance is alleged to be unconstitutional,
the Solgen shall also be notified and entitled to be heard
IS COURT ACTION Except in actions for reformation, quieting of title or
DISCRETIONARY ? consolidation of ownership, the court motu proprio or upon
motion, may refuse to exercise the power to declare rights and
to construe instruments in any case where a decision would
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 64: Review of Judgments and Final Orders or Resolutions of the 2. Questions raised are too unsubstantial to warrant
COMELEC and the COA further proceedings
EFFECT OF FILING The filing of the petition for certiorari shall not stay the
WHAT IS THE Certiorari under Rule 65 to the Supreme Court execution of the j, fo or r sought to be reviewed UNLESS the
REMEDY WITH SC deems otherwise
REGARD TO Garces v. CA: SC can only take cognizance of COMELEC/COA
JUDGMENTS, FINAL Judgments, Final orders or Resolutions only when the
ORDERS OR COMELEC/COA makes the j, fo or r in the exercise of its
RESOLUTIONS OF adjudicatory or quasi-judicial powers.
THE COMELEC
AND COA? In this case, the question brought forth under rule 65 to the
SC involved an administrative controversy. COMELEC’s
decisions, to be able to be brought to the SC, must be in the
exercise of its quasi-juidical functions (like an election dispute)
CONCERNING MRS When COMELEC division renders a decision in the exercise of
its quasi-judicial or adjudicatory power, an MR must be made
first.

Order of Remedy:

COMELEC Division Decision -> MR -> COMELEC En Banc ->


Rule 65 to the SC (review of judgment)

HOWEVER (instance where rule 65 from division decision)

COMELEC Division Decision -> If made with GADLEJ, no more


need for MR, can go directly to SC under petition for certiorari

Note: COMELEC Rules of Procedure provides that no MR of an


en banc decision is allowed except in election cases.
TIME TO FILE 30 days from notice of the j, fo, r sought to be reviewed.
PETITION
Filing of MR has interrupting effect.

IMPORTANT: at least 5 days in any event applies in Rule 64

If MR is denied, the aggrieved party may file the petition for


certiorari (not answer) within the remaining period, which shall
not be less than 5 days in any event, reckoned from notice of
denial.

*Compare with Rule 65 (in rule 65, after your MR is denied


you have new 60 day period)
COMMENT If the SC finds the petition sufficient in form and in substance,
it shall order the respondents (COMELEC/COA) to file their
comment.

The SC may also dismiss the petition outright IF

1. Filed manifestly for delay


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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 65: Prohibition and Mandamus in question”


MANDAMUS The rule provides that when any tribunal, corporation, board,
PROHIBITION The rule provides that when the proceedings of any tribunal, officer or person unlawfully neglects the performance of an act
corporation, board, officer or person whether exercising which the law specifically enjoins/order as a duty resulting
judicial, QJ or ministerial functions acted in excess/without from an office, trust, station OR unlawfully excludes another
jurisdiction or committed GADLEJ and there is no appeal or from the use and enjoyment of a right or office to which such
any other plain, speedy and adequate remedy in the ordinary other is entitled, and there is no appeal or any other plain,
course of law, an aggrieved party may file a petition for speedy, and adequate remedy in the ordinary course of law,
prohibition, commanding the respondent to desist from the aggrieved person may file a petition for mandamus,
further proceedings in the action or matter specified commanding the respondent, immediately or some other time
to be specified by the court, to do the act required to be done
Broken down into keywords: to protect the rights of the petitioner and to pay the damages
sustained by the petitioner by reason of the wrongful acts
1. Proceeding of tribunal, corp, board, officer, or person
exercising judicial, quasi-judicial or ministerial functions Broken down into keywords:
2. Excess of jurisdiction or GADLEJ
3. No appeal OR any other plain, speedy and adequate 1. TWO ASPECTS:
remedy a. Tribunal, corporation, board, officer or
4. Order is for the respondent to DESIST from doing an act person unlawfully neglects an act which
to be done. the law commands him to do OR
b. T,B,C,O or P unlawfully excludes another
Difference of Excess of Jurisdiction and Grave Abuse of from the use and enjoyment of a right or
Discretion office to which he is entitled
2. No appeal OR any other plain, speedy and adequate
Excess of Jurisdiction: the court, board or officer has remedy
jurisdiction over a case but has transcended the same or acted 3. Mandamus cannot lie against discretionary functions
without authority (See Sharp v. LBP below)
4. Mandamus is available only to compel the doing of an
Grave abuse of discretion: the court, board or officer has act specifically commanded by law. Exception would
exercised its power in an arbitrary manner by reason of be if there is GADLEJ (See digests below)
passion or personal hostility. It must be so patent and gross. 5. Clear legal right of petitioner must be shown
6. The imperative duty of the respondent to perform the
Purpose of Prohibition: To prevent the unlawful and must also be shown
oppressive exercise of legal authority. It is not to correct error COMMON 1. Petition must be verified
of judgment but a preventive remedy aimed to restrain the REQUISITES OF 2. Petition must be filed within 60 days from notice of the
doing of some act to be done PROHIBITION AND judgment, order or resolution. IF MR/MNT was filed and it
MANDAMUS was denied, another 60 days given from notice of denial
However, as stated in Holy Spirit Homeowners Assoc v. 3. Petition must assign errors of jurisdiction and NOT errors
Defensor: Prohibition will lie against judicial or ministerial of judgment
functions, but not against legislative or quasi-legislative 4. When and where filed (see below)
functions (when attacking the validity of an IRR of an 5. Petition must contain certification of non-forum shopping
administrative agency) The proper remedy would be an 6. R65 Sec 5: Respondents: When petition relates to
ordinary action for its nullification, which falls under the acts/omissions of a judge, court, QJ agency, tribunal,
jurisdiction of the RTC. Other remedies available would be to corporation, board, officer, or person, the petitioner shall
ask the RTC to issue a writ of injunction or a TRO. join as private respondent, the person/persons interested
in sustaining the case.
Note: Remember, as per the Constitution, the SC may review,
revise, reverse, modify or affirm on appeal or certiorari, final The costs awarded in such proceedings awarded to
judgments and orders of lower courts in “all cases in which the petitioner shall be against the private respondents only.
constitutionality/validity of any x x x law x x x or regulation is

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Unless otherwise specifically directed by the court where  EX: When in the exercise of discretionary duty, there is GADLEJ. In the
the petition is pending, the public respondents shall not First Philippine Holdings Case, although the motion for intervention is
appear in or file an answer or comment to the petition or discretionary on the court, its denial was tainted with GADLEJ as movant
any pleading therein. was able to prove its interest in the SM of the litigation and the court still
denied the motion for intervention. Intervention was allowed by the SC.
If the case is elevated to a higher court by either party,
the public respondents shall be included therein as In Holy Spirit, what ordinary action should you file to assail the constitutionality of
nominal parties. However, they shall only appear in the an IRR?
proceedings if directed by the court
Where filed? 1. If the petition relates to an act or omission of a MTC
or of a corporation, board, officer: RTC exercising
jurisdiction over the territorial area (or also CA or
Sandiganbayan, w/n it is in the aid of the court’s appellate
jurisdiction)
2. If petition involves act or omission of a quasi-
judicial agency: CA
3. If election cases involving an act or omission of a
MTC/RTC: COMELEC in aid of its appellate jurisdiction
4. Remember, however, that Rule 56 provides that the SC
also has original jurisdiction over petitions for mandamus,
prohibition and certiorari. Depends on the situation.

Cases:

1. Sharp International Marketing v. CA:

 UCBP entered into a contract to sell a piece of land with Sharp. It would be
converted into a deed of absolute sale upon payment of 3M. However,
before Sharp even acquired the land, Sharp offered to sell it to the
Government for 65M. The administrative agency involved approved the
sale. A deed of sale was entered into by the President of Sharp and the
Secretary of Agarian Reform. All that was left was for the LBP President to
sign the deed of sale, the bank being the one to release the public funds to
acquire the property.
 The President of LBP did not want to sign the deed of sale. The Secretary
even sent a team to reassess the land. Sharp filed a petition for mandamus
to order LBP President to sign.
 SC held that this was a discretionary function on the part of the LBP
President since it was up to him to approve the compensation to be paid to
Sharp.
 Also, SC held that the action for mandamus cannot lie if what is sought to
be enforced is alleged contractual obligations under a disputed contract ---
disputed not only on the ground that it had failed to reach perfection, but
on the ground that it was illegal and against public interest.

2. Henares Jr. v. LTFRB and First Philippine Holdings v. Sandiganbayan

 GR: Mandamus does not lie to require anyone to fulfill contractual


obligations or to compel a course of conduct or to control or review the
exercise of discretion. The law must specifically order the act to be done.
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 66: Quo Warranto of the usurpation OR have respondent held in contempt.
VENUE If SOLGEN commences:
What is quo A writ requiring the person to whom it is directed to show what 1. RTC manila
warranto authority they have for exercising some right or power (or 2. CA
"franchise‖) they claim to hold. 3. SC
Against whom An action for usurpation of a public office, position or franchise
can quo may be commenced by a verified petition brought in the name If someone other than solgen like individual or public prosecutor
warranto be of the Republic of the Philippines AGAINST: 1. RTC exercising jurisdiction over the territory where
filed respondent resides
1. A person who usurps, intrudes into, or unlawfully 2. CA
holds or exercises a public office, position or 3. SC
franchise Period for When against a public officer or employee
2. A public officer who does or suffers an act which, by filing  it must be commenced within 1 year after the cause of
law, constitutes a ground for the forfeiture of his office such ouster (of petitioner or the person the respondent
3. An association which acts as a corporation within the ousted)
Philippines without being legally incorporated or without  commenced within 1 year after the right of the
lawful authority to act (SEC now has jurisdiction over petitioner to hold such office or position arose
this) When action for damages against respondent
 within 1 year after entry of judgment establishing
WHEN MUST SOLGEN/Public Prosecutor FILE THE CASE? petitioner’s right to the office
1. When directed by the President
2. Upon complaint when he has good reasons to believe EXC: When the delay to file action was caused by the State
that any case specified above (1-3) can be established itself.
by proof. Inapplicable Rules of court does not apply to quo warranto cases against
3. By himself when he has good reasons to believe that to intra- persons who usurp an office in a PRIVATE corporation. RA 8799
any case specified above (1-3) can be established by corporate is the governing law for that action
proof. disputes

WHEN MAY SOLGEN/Public Prosecutor FILE THE CASE (w/


leave of court?)
1. At the request of another person but in this case, the
officer bringing the action may first require an
indemnity for the expenses/costs of the action

WHEN MAY AN INDIVIDUAL FILE THE CASE?

1. When a person claiming to be entitled to a public


office/position usurped or unlawfully held or exercised
by another may bring an action for quo warranto in his
own name. He must show that he is entitled to the
office held by the respondent.  Petitioner WANTS
respondent’s position. In contract, in mandamus,
petitioner is merely excluded from an office by another,
and that person is not necessarily claiming
title/intruding/usurping that office. Respondent has
clear legal duty to do something and he doesn’t.

Note: If petitioner wins quo warranto and respondent is ousted,


he can immediately execute duties of the office. However, if
respondent refuses, he can file an action for damages by reason
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 67: Expropriation RTC to enforce the restoration to


defendant
DISTINCTION Eminent Domain: inherent power of the State to take private 5. Ascertainment of just compensation: will be done by
BETWEEN property upon payment of just compensation court appointed commissioners (max 3)
EMINENT a. Objections to commissioners’ appointment shall be
DOMAIN AND Expropriation: The process by which government takes the filed within 10 days from service and shall be
EXPROPRIATION property resolved 30 days after all commissioners received
STAGES OF 1. Filing of verified complaint (purpose of expropriation, join the copy
EXPROPRIATION defendants owning/claiming title to the land, specify who are b. Report must be filed by commissioners 60 days
occupying in case it’s already titled to the State) from the date they were notified of appointment.
2. Entry: (Conditions) Defendants given 10 days to object to findings of
a. Upon filing or any time thereafter, plaintiff may report.
enter/take possession upon deposit of amount c. Upon expiration of 10 days to object, or even
equal to assessed value of property for tax before as long as everyone filed their objections,
purposes. It can be in money unless the court Court may render judgment based on the report,
authorizes a certificate of deposit of a government recommit the same to the commissioners for
bank of the Philippines payable on demand. further report or set aside report and appoint new
b. When the government or its authorized agent commissioners
makes the required deposit, the TC has a d. Order of just compensation may be appealed.
MINISTERIAL DUTY to issue a writ of possession. i. PERIOD: 30 days from notice  record on
3. Objections: appeal
a. If defendant has any objection to the filing of or the JUST Just Compensation: The equivalent for the value of the
allegations in the complaint, or any objection or COMPENSATION property at the time of its taking.
defense to the taking of his property, he shall serve
his ANSWER within the time stated in summons. RA 8974 mandates immediate payment of the initial just
b. In complaint for expropriation, ONE CAN’T FILE a compensation PRIOR to the issuance of the writ of possession in
MOTION TO DISMISS, CROSS-CLAIM, favor of the government.
COUNTERCLAIM or THIRD PARTY complaint
c. A defendant waives ALL his defenses and objections Municipality of Binan v. Garcia
not so alleged BUT the court, in the interest of
justice, may permit amendments to the answer to  There are two (2) stages in every action of expropriation.
be made not later than 10 days from the filing o FIRST: Determination of authority of plaintiff to expropriate.
thereof.  Can end with either an order of expropriation or
4. Order of expropriation dismissal. Both are FINAL orders.
a. If objections/defenses overruled or no one comes o SECOND: Determination of just compensation for the property
to defend, the court may issue an order of sought to be taken. Done with assistance not more than 3
expropriation, declaring that plaintiff has lawful commissioners.
right to TAKE the property sought to be  This order is also FINAL.
expropriated
b. A final order sustaining the right to expropriate the
property may be appealed by any party aggrieved
thereby. However, this appeal will not prevent the
court from determining just compensation.
i. PERIOD: 30 days from notice  notice of
appeal
c. Further, this appeal will not delay the entry upon
the property upon the order of expropriation
i. HOWEVER, if appellate court finds that
plaintiff has NO RIGHT to expropriation,
judgment shall be rendered ordering the
81
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 68: Foreclosure of REM within a period of NOT LESS THAN 90 days NOR MORE THAN 120
DAYS from entry of judgment and that in default of such
MODES OF REM: payment, the property will be sold in public auction.
FORECLOSURE
1. Judicial: Rule 68 Right of Redemption: The right of the mortgagor in case of
2. EJ: Act 3135 as amended by Act 4118 extrajudicial foreclosure to redeem the mortgage property
within a certain period (1 year) after it was sold for the
CM satisfaction of the mortgage debt  so generally, it follows that
there is NO right of redemption in judicial foreclosure except
1. Judicial: Rule 68: Replevin under rule 60 may be when mortgagee is a bank.
availed of to secure possession of property before its
sale Equitable Right of Redemption: the right of the mortgagor in
2. EJ: Act 1508 case of judicial foreclosure to redeem the mortgaged property
COMPLAINT Complaint for foreclosure should set forth the details of the AFTER his default but BEFORE the confirmation of the sale
mortgage, description of mortgaged property, amount claimed to o NOTE: In this case however, after the confirmation,
be unpaid thereon, names of all who have/claim to have interest it can still be redeemed if the mortgagee was a
in the property et al bank
PARTIES Indispensable: RIGHT OF Requisites for valid redemption:
REDEMPTION IN 1. Redemption within 1 year from registration of sale
1. Mortgage debtor EJ 2. Payment of purchase price plus 1% int per month
2. Mortgagor or owner of the mortgaged property (IF the FORECLOSURE thereon if any, paid by purchaser
mortgagor is NOT the debtor/the executor of the 3. Written notice of redemption served on officer who
deceased mortgagor) made the sale
3. The executor/administrator of a deceased owner of the WRIT OF Upon finality of the order of confirmation or upon the
property mortgaged (with the approval of the court) POSSESSION expiration of the period of redemption allowed by law, the
4. The heir to whom the mortgaged property was purchaser or last redemptioner shall be entitled to possession of
adjudicated the property UNLESS a third party is actually holding the same
adversely to the judgment debtor. The said purchaser/last
What happens when the above are not joined? Not a ground for redemptioner may secure a writ of possession, upon motion,
dismissal. Court will order plaintiff to implead them. If he from the court that ordered the foreclosure.
doesn’t, then the action will be dismissed.
HOWEVER, if mortgagee is a bank, purchaser may enter upon
Necessary: All persons having/claiming an interest in the and take possession of property immediately after confirmation
property subordinate in right to that of the holder of mortgage of the sale

1. Junior (second) mortgagees  Petition for writ of possession is not a new action. It is
2. Subsequent attaching creditor only incidental. It’s a mere motion. It is ministerial, ex-
3. Purchaser of mortgaged property parte and non-litigous. There is no need for notice to
adverse party.
What happens when necessary party is not joined? Foreclosure is  A bond is required to be filed for it be issued when it is
ineffective as against them and they retain the equity of within the 1 year period of redemption (EJ
redemption in their favor. A separate /independent foreclosure FORECLOSURE)
proceeding is required APPEALABLE 1. Judgment on foreclosure (Sec 2)
WHAT IS THE It’s basically the period that the mortgagee has to pay his debt. ORDERS 2. Order of confirmation of sale (Sec 3)
EQUITY OF 3. Deficiency judgment
REDEMPTION? Sec 2 provides that: If upon the trial in such action, the court
finds the facts set forth in the complaint to be true, it shall NOTICE OF APPEAL
ascertain the amount due to the plaintiff upon the mortgage debt
and shall render judgment for the sum so found due and ORDER
THAT the same be paid to the court or to the judgment creditor
82
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Cases:

1. Banco Filipino v CA: Filing of court action to enforce redemption has effect of
preserving redemptioner’s rights and freezing expiration of one year period to
redeem (EJ FORECLOSURE)
2. De Vera v. Agloro: Under law on EJ Foreclosure, if mortgagor fails to redeem
within 1 year period, the buyer in the public auction may file a motion for the
issuance of a writ of possession. On the strength of the sheriff’s certificate of
sale, the she sheriff is duty-bound to place the buyer at the public auction in
actual possession of the foreclosed property after the consolidation of title in
the buyer’s name. for failure of the mortgagor to redeem
3. PNB v. Sanao: The judge to whom an application for writ of possession is filed
need not look into the validity of the mortgage or the manner of its foreclosure.
In the issuance of a writ of possession, no discretion is left to the TC. Any
question regarding the cancellation of the writ in respect to the
validity/regularity of the foreclosure sale OR the mortgage should be
determined in a subsequent proceeding
4. REMEMBER, after the consolidation of title in the buyer’s name for failure of the
mortgagor to redeem, the writ of possession becomes a matter of right.
Mandamus will lie.

PERIODS OF Judicial Foreclosure Extrajudicial


REDEMPTION (RIGHT Foreclosure
OF REDEMPTION)

Mortgagee banks non- banks non-


banks banks

Individual 1 year from X 1 year from 1 year from


debtors/mortgagors registration registration registration
of sale of sale of sale

Juridical persons as 1 year from X Until 1 year from


debtors/mortgagors registration registration registration
of sale of of sale
certificate
of sale or 3
months
from sale
whichever
is earlier

83
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 69: Partition 2. Judgment as to the accounting of the fruits/income of


the property
WHAT IS Partition, in general, is the separation, division and assignment 3. Judgment of partition
PARTITION? of a thing held in common among those to whom it may WHEN IT COMES 1. The heirs themselves extrajudicially
belong. TO ESTATE OF A 2. The court in an ordinary action for partition, or in the
DECEDENT, WHO course of administration proceedings
The purpose of partition is to put an end to co-ownership or CAN EFFECT 3. The testator himself
co tenancy, etc (it presupposes a co-ownership HENCE no co- PARTITION? 4. The third person designated by the testator
ownership, partition cannot lie)
WHAT HAPPENS  Court will appoint at least 3 commissioners (competent and
It seeks a severance of the individual interests of each co- WHEN THE disinterested) to make the partition
owner, vesting in each a sole estate in specific property PARTIES ARE  Job of Commissioners: to view, examine real estate,
and giving to each one a right to enjoy his estate without UNABLE TO AGREE hear the parties as to their preference, set apart the same
supervision or interference from the other. UPON THE to the parties in lots/parcels afterwards
PARTITION?  Binding force of report: Report to the court is not binding
Action for partition raises to issues to wit: until confirmed
1. Whether plaintiff is co-owner of the property o Upon filing of the report, interested parties will be
2. Assuming that he is, how will the property be divided given notice and allowed 10 days to file objects to
among the plaintiff and co-owners the report
o When the 10 days expire, or even before it expires
Indispensable parties: all the co-owners but the interested parties have filed their
objections, the court may, upon hearing,
Rules of partition apply to PERSONAL PROPERTY also, as far as  accept the report and render judgment
practicable. in accordance therewith
 remand it back to the commissioners for
NOTE: in an action for partition, a party shall recover from further report
another his just share of rents and profits received by such  set aside and appoint new
other property from the real estate in question. commissioners
WHO HAS RTC:  accept/reject report partially
JURISDICTION  Personal Property: exceed 300/400  Court can also assign the real estate/portion to just
OVER PARTITION ?  Real Property: exceed 20/50 one of the co-owners: When the commissioners see that
partition cannot be effected without prejudice to the
MTC: interests of the parties, the court may order the property
 Personal Property: equal to or below 300k/400k assigned to one of the parties willing to take the same
(in/out MM) o PROVIDED he pays the others
 Real Property: equal to or below 20k/50k (in/out MM) o PROVIDED further that if one the parties ask that
ORDER OF If after the trial, the court finds for plaintiff, it shall order the the property be sold instead, then the
PARTITION partition of the real estate among all parties in interest. commissioners will sell the property in auction

Afterwards, if the parties agree, they make the partition among


themselves through proper instruments of conveyance. The Difference when partitioners don’t agree or agree.
court shall then confirm this agreed upon partition.
IS THE FINAL YES. It may appealed 30 days from the date of entry of If they agree -> give copy of partition to the courts and court will confirm
ORDER DECREEING judgment. (RECORD ON APPEAL because MULTIPLE APPEALS
PARTITION AND can occur) If they don’t agree, commissioner.
ACCOUNTING
APPEALABLE? The three stages in the action for partition that can be If there are 10 co-owners, only 8 were sued, the action will not be dismissed.
appealed: Plaintiff must implead the other two!
1. Order of partition where the propriety of partition is
determined
84
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 70: Forcible entry and Unlawful Detainer demand except: RACAZA v. GOZUM (see below)
 after demand to pay/comply with conditions of the lease
There are 3 different actions to recover possession of REAL and to vacate is made upon the lessee OR
property  serving written notice of such demand upon the person
FORCIBLE To be discussed more in detail below. found on the premises OR
ENTRY AND  if no person is found, by posting such notice on the
UNLAWFUL In a nutshell, it is an ejectment proceeding which is a summary premises
DETAINER: action for recovery of physical possession where the Lessee must fail to comply after 15 days in the case of land and 5
POSSESSION dispossession has not lasted more than year days in case of buildings (for lessor to be able to commence
ONLY action)
Forcible entry: Prior possession is required (demand also JURISDICTION 1. When filing an action for FEUD, go to MTC/MetC/MTCC 
required) OF COURTS always holds true regardless of value of property
Unlawful detainer: Prior possession NOT required (demand not a. Exception: Laches: Where the FEUD suit was filed
necessary all the time: when contract expires, etc) in the RTC but the defendant did not move to
dismiss the complaint for lack of jurisdiction and
Rules on summary procedure apply to FEUD no need for trial, instead filed his answer and went to trial, estoppel
testimony, periods are different answer: 10 days ONLY by laches set in.
ACCION It is the plenary action for the recovery of the real right of 2. When filing an action for accion publiciana, look at the
PUBLICIANA: possession, which should be brought in the proper court (as the value of the property first
REAL RIGHT case may be) when the dispossession has lasted for more than a. If not exceeding 20k/50k as the case may be, go to
OF one year MTC/MeTC/MTCC
POSSESSION b. If exceeds 20k/50k as the case may be, go to RTC
It is the proper remedy where WHAT MUST BE Complaint must aver facts constitutive of FEUD
 the cause of dispossession is not among the grounds for AVERRED
FEUD (F-I-S-T-S) This is important as these allegations confer jurisdiction on the
 when dispossession has lasted for more than one year court. If the allegations don’t show facts constitutive of feud, the
proper RTC may be the right court.
It is an ordinary civil proceeding to determine the better right of
possession independently of title. However, as held in Hilario v. CA, a complaint for unlawful
ACCION It is an action for the recovery of ownership detainer is sufficient if it contains the allegation that the
REIVINDICATOR withholding of possession or refusal to vacate is unlawful, without
IA: necessarily using the words of the law (example: ―Plaintiff
OWNERSHIP verbally asked defendants to remove their houses on the lot of
(INCLUDES the former but the latter refused and still refuse to do so without
POSSESSION) just and lawful grounds‖ SUFFICIENT for unlawful detainer)
WHO MAY 1. FORCIBLE ENTRY: A person deprived of any land or building EFFECT OF Hilario v. CA
INSTITUTE AN (real property) by force, intimidation, strategy, threat or CLAIM OF
ACTION FOR stealth OWNERSHIP ON  At present, all FEUD cases have to be tried pursuant to the
FEUD 2. UNLAWFUL DETAINER: (lawful at start, then it became MTC revised rule of summary procedure regardless of whether or
unlawful) Lessor, vendor, vendee or other person against JURISDICTION not the issue of ownership is alleged by a party
whom the possession of any land or building is unlawfully  Lower courts (MTC,METC,MCTC,MTCC) retain jurisdiction
withheld after the expiration or termination of the right to over ejectment cases even if the question of possession
hold possession, by virtue of any contract, express or implied cannot be resolved without passing upon the issue ownership
a. OR the legal representatives or assigns of any such o The lower courts however, can only pass upon the
lessor, vendor, vendee issue as to ownership for the sole purpose of
determining possession
BUT: o Hence, an adjudication made therein by the inferior
court should be regarded as merely provisional in
Unless stipulated, an action for FEUD by the lessor may be nature  IT DOES NOT BAR AN ACTION BETWEEN
commenced only (one will suffice)  count period from last THE SAME PARTIES INVOLVING TITLE/OWNERSHIP
85
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

over the land JUDGMENT


WHAT ARE 1. INJUNCTION: Injunction suits instituted in the RTC by IMMEDIATELY GR: a judgment in a FEUD case is immediately executory
CASES THAT DO defendants in ejectment actions in the MTC do not abate the EXECUTORY? EX: (when it can be stayed: PERFECT APPEAL +
NOT ejectment suits (injunction as a principal action) SUPERSEDEAS BOND + DEPOSIT) when defendant perfects
PREJUDICE AN 2. ACCION PUBLICIANA: An accion publicaina does not an appeal and the defendant who wants to stay execution files a
EJECTMENT suspend an ejectment suit against the plaintiff in the (accion sufficient supersedeas bond, approved by the MTC and
SUIT publiciana case) executed in favor of the plaintiff (in the FEUD case) to pay rents,
3. WRIT OF POSSESSION: A writ of possession case where damages, costs, etc and during the pendency of the appeal, the
ownership is the principal issue before the RTC does not defendant deposits with the appellate court the amount of rent de
preclude the execution of the judgment in an unlawful from time to time under the contract (if any) as determined by
detainer suit where the only issue involved is the material the MTC judgment  but if he fails to pay from time to time,
possession of the premises execution will lie.
4. QUIETING OF TITLE: Not a bar to an ejectment suit
involving the same property Sec 21: Immediate execution on appeal to CA/SC (appeal under
5. SPECIFIC PERFORMANCE w/ DAMAGES: Does not affect 42  where RTC affirms MTC decision ruling for PLAINTIFF)
ejectment action (to compel renewal of lease conract)
6. REFORMATION: does not suspend ejectment suit (e.g. from The judgment of the RTC against the defendant shall be
deed of absolute sale to sale with right to repurchase) immediately executory, without prejudice to a further appeal
7. RECONVEYANCE (accion reivindicatoria) that may be taken therefrom (RTC can immediately issue writ
8. ANNULMENT OF SALE, TITLE OR DOCUMENT of execution without prejudice to an appeal being given due
POSSESION BY Heirs of Magpily: Possession by tolerance is lawful BUT such course)
TOLERANCE possession becomes unlawful when the possessor by tolerance
refuses to vacate upon demand made by owner. Benedicto v. CA: Even if RTC judgments in unlawful detainer
cases are immediately executory, preliminary injunction may still
This is because a person who occupies the land of another at the be granted to stay the immediate execution upon showing that
latter’s tolerance or permission, without any contract between there exists a right to be protected and that the acts against
them, is necessarily bound by an implied promise to vacate upon which the writ is to be directed violate said right (in other words,
demand. If he fails to vacate upon demand, an action for execution pending appeal can be enjoined through preliminary
ejectment is the proper remedy. injunction)
WHEN TO When it’s for forcible entry: From date of ACTUAL entry EXCEPT INJUNCTION: Upon motion of the plaintiff, within 10 days from the perfection of
COUNT 1 YEAR when there is stealth. In case of stealth, from discovery of the the appeal to the RTC, the RTC may issue a writ of preliminary
PERIOD OF entry mandatory injunction to restore the plaintiff in possession IF
DISPOSSESSION 1. the court is satisfied that the defendant’s appeal is
When it’s for unlawful detainer: From the date of the last frivolous or dilatory
demand to vacate 2. or that the appeal of the plaintiff is prima facie
Exception: Date of original demand to vacate if the meritorious
subsequent demands are merely in the nature of PLEADINGS 1. complaint
reminders of the original demand (see Racaza v. Gozum ALLOWED 2. Compulsory counterclaim and cross-claim pleaded in the
below) answer (and answers to these cross/counter claims)
WHAT ARE THE Fair rental value or the reasonable compensation for the use and ACTION ON The court may, from an examination of the allegations in the
DAMAGES THAT occupation of the leased property COMPLAINT complaint and such evidence as may be attached thereto, dismiss
CAN BE UPON FILING the case outright on any of the grounds for the dismissal of
RECOVERED IN Dumo v. Espinas: Considering that the only issue raised in actions which are apparent therein.
A FEUD CASE? ejectment is that of rightful possession, damages which could be
recovered are those which the plaintiff could have sustained as a If no ground for dismissal is found, court will issue summons.
mere possessor, or those caused by the loss of the use and TIME TO FILE Defendant must file answer 10 days from service of summons
occupation of the property AND NOT the damages which he may ANSWER
have suffered but which have no direct relation to his loss of ANSWER  Affirmative and negative defenses not pleaded in the answer
material possession. are deemed waived except lack of jurisdiction over SM
IS THE Sec: 19 (appeal under section 40) (because it’s conferred by law)
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

 Cross-claims and compulsory counterclaims not asserted in actions to recover possession of real property. Moreover, the MTC exercises
the answer are barred jurisdiction over all cases of forcible entry and unlawful detainer
 The answer to counterclaims or cross-claims shall be served
and filed within 10 days from service

Upon failure to answer, the court, on its own or upon motion of


plaintiff, shall render judgment as may be warranted by the facts
alleged in the complaint and to what is prayed for therein.
PRELIMINARY At least 30 days after the last answer is filed, a preliminary
CONFERENCE conference shall be held and the provisions on pre-trial will be
applicable.

 The failure of the plaintiff to appear in the prelim conference


shall be cause for dismissal.
o The defendant who appears in the absence of the
plaintiff shall be entitled to judgment on his
counterclaim
o All cross claims shall be dismissed
 If defendant fails to appear, the plaintiff will also be entitled
to judgment. However, this does not apply where one of two
or more defendants sued under a common cause of action
who pleaded a common defenses shall appear
PROHIBITED (you can MR in interlocutory orders, you can rule 65 final order)
MOTIONS

Difference of Labastida and Racaza (they were both lease contracts but the
grounds for ejectment in Racaza and Labastida were different)

====================================================

When to count one year period?

1. Forcible entry: from actual entry except when there is stealth


2. Unlawful Detainer: from last demand to vacate
a. Exception: Period counted from date of original demand if the
subsequent demands are merely in the nature of reminders or
reiterations of the original demand

Labastida case v. Racaza case:

Racaza: expiration of the lease

Labastida: contract of lease did not expire yet, but there was a violation of the
terms and conditions of the lease (in this case, defendant is the lessee) 
exceptional situation

Quinagoran v. CA: Now as it stands, the RTC doesn’t ALWAYS have jurisdiction
over cases of accion publiciana. You must still look at the relevant amount.
Hence, if the assessed value of the real property involved does not exceed P50k in
Metro Manila, and P20k outside of Metro Manila, the MTC exercises jurisdiction over
87
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 71: Contempt custody of an officer by virtue of an order or process of a


court held by him.
DIRECT A person guilty of
CONTEMPT HOW COMMENCED:
a. misbehavior in the presence of or near a court as to obstruct
or interrupt the proceeding before the same, 1. Either motu proprio by the court against which the contempt
b. disrespect toward the court was committed OR
c. offensive personalities towards others 2. Any other formal charge requiring the respondent to show
d. refusal to be sworn or to answer as a witness or to subscribe cause why he should not be punished for contempt
an affidavit or deposition when lawfully required to do so 3. By a verified petition with supporting particulars and upon full
compliance with the rules for filing initiatory pleadings in civil
May be summarily adjudged in contempt by such court actions

PUNISHMENT: WHERE FILED:


1. If against RTC or higher (or official thereof): with such court
punished by fine or imprisonment (not exceeding 10 days) or both 2. If lower court: in the RTC of the place where the lower court
IF it is RTC or higher is BUT it may be initiated in the lower court also subject to
appeal to the RTC.
If it is lower court, then by fine or imprisonment not exceeding 1
day or both. PUNSIHMENT:
IF against RTC or higher: max 6 months or fine or both
REMEDY: A person adjudged in direct contempt by any court IF against lower: max 1 month or fine or both
may not appeal therefrom but certiorari or prohibition is an CASE The use of falsified and forged documents constitutes indirect
available remedy. The execution of the judgment of contempt contempt. (Dolores v. Formoso)
shall be suspended pending resolution of such petition (for
certiorari/prohibition) provided the person adjduged shall file a
bond
INDIRECT After a charge in writing has been filed and an opportunity to the
CONTEMPT respondent to comment thereon within a certain period, a person
guilty of the following acts may be held in indirect contempt:

a. misbehavior of an officer of a court in the performance of his


official duties or in his official transactions
b. disobedience or resistance to a lawful writ, process, order or
judgment of a court, including the act of a person who after
being dispossessed or ejected from any real property by the
judgment or process of any court of competent jurisdiction,
enters into or attempts or induces another to enter into or
upon such real property, for the purpose of executing acts of
ownership or possession, or in any manner disturbs the
possession given to the person adjudged to be entitled
thereto
c. Any abuse of or any unlawful interference with the processes
or proceedings of a court not constituting direct contempt
d. Any improper conduct tending, directly/indirectly to impede,
obstruct or degrade administration of justice
e. Assuming to be an attorney or an officer of a court, and
acting as such w/o authority
f. Failure to obey a duly served subpoena
g. The rescue or attempted rescue of a person or property in the
88
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Rule 41: Appeal from RTC Rule 42: Petition for review Rule 43: Appeal from QJ to Rule 45: Appeal by certiorari
from RTC to CA CA to SC

From where RTC - CA RTC (appellate) - CA QJ Agency - CA RTC/SB/CTA/CA – SC

Grounds Nothing. Just file notice of Questions of fact, law or mixed Questions of fact, law or mixed Questions of law only
appeal/record on appeal
Review discretionary on SC.
Period (from NOTICE 15 days – notice 15 days 15 days 15 days
of judgment, award, 30 days - record
order)
Extension to file RoC does not provide 2 extensions 15 days each 2 extensions 15 days each One time extension of 30 days
(when it’s NOT from for justifiable reasons
MR/MNT but it’s from *Only one MR allowed
the decision itself)
Fresh period rule [of Yes. But non-extendible Yes. Extendible by 15 more days Yes. Extendible by 15 more Yes. Extendible by 15 more
15 days] (when days days
MR/MNT denied)

IAPOA? (residual Yes Yes No No


powers of lower
court)

PPQ? (denial motu No (you’re just filing notice/record Yes Yes Yes
proprio) anyway)

Effect of appeal on Will stay GR: Will stay Will not stay. Depends on SC.
judgment EX: Cases decided under
summary proceedings Remedy to stay: TRO

89
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Situation Example Remedy

Aggrieved by final judgment or A filed a case for unlawful detainer against B. B lost. Rule 40 (MTC-RTC)
order of MTC
Aggrieved by RTC final j/o in its Upon B’s appeal to the RTC of his unlawful detainer case. Rule 42 (RTC – CA)
appellate jurisdiction He still lost.
Aggrieved by RTC final j/o in its A filed a case for specific performance with damages Rule 37 (MR/MNT if grounds present)
original jurisdiction against B. B lost. Rule 41(RTC-CA)
Aggrieved by denial of MR by RTC A filed a case for specific performance against B in RTC. B Rule 41 (RTC – CA)
lost. B filed an MR/MNT. Court denied.
Note: Can’t file Rule 65. Must appeal the judgment itself
(the one that held that B lost and must do specific
performance)
Aggrieved by denial of MR/MNT by A filed a case for specific performance against B. B, Rule 65 (certiorari either in CA/SC)
RTC when the subject of denial is instead of filing answer, filed a Motion to Dismiss. It was
interlocutory denied so B filed an MR as against the denial of the motion Note: Why? Because the order denying the MTD is merely
to dismiss. RTC still denied it. an interlocutory order. The subject of the MR is
interlocutory.
Aggrieved by the following: Rule 65 certiorari to RTC/CA/SC as the case may be.

1. An order denying a petition


for relief or any similar
motion seeking relief from
judgment
2. An interlocutory order
3. An order disallowing or
dismissing an appeal
4. An order denying a motion to
set aside a judgment by
consent, confession or
compromise on the ground of
fraud, mistake, duress or any
other ground vitiating consent
5. An order of execution
6. A judgment or final order for
or against one or more
several parties or in separate
claims, counterclaims, cross-
claims and third-party
complaints, while the main case
is pending, unless the court
allows an appeal therefrom
7. An order dismissing an action
without prejudice

Aggrieved by j/fo of a QJ agency A was relieved from his post in an administrative agency. Rule 42 (QJ – CA)
He appealed to the CSC. CSC denied.
Aggrieved by j/fo under Labor A was fired from his job. He argues that it was illegal Rule 65 (certiorari) to CA
Code (NLRC, Sec of Labor, dismissal. He goes to the NLRC. He lost.
Director of Bureau of labor
Relations)
90
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Aggrieved by DOJ Secretary Criminal charges were filed against A. Prosecutor found Rule 65 (certiorari) to the CA
decision in petition for review of probable cause. A went to the DOJ Sec. DOJ Sec affirmed
prosecutor’s resolution prosecutor’s findings.
PO aggrieved by OMB decision in OMB suspended Mayor X. Rule 43 (QJ-CA)
Administrative Cases
PO aggrieved by OMB finding OMB found probable cause to file information against Rule 65 (certiorari) to the SC
probable cause to file information Mayor Y for violation of RA 3019.
against him
Aggrieved by RTC, CA, SB and Rule 45 (appeal by certiorari to SC)
CTA decision and question of law
is involved
Aggrieved by RTC or MTC final and Rule 38 (petition for relief from judgment in MTC/RTC as
executory judgment/order OR the case may be)
appeal was lost (judgment OR loss
of appeal was due to FAME)
Aggrieved by RTC/MTC final order Rule 47 (petition for annulment of judgments or final
and MNT/Appeal/Petition for relief orders and resolutions)
and other remedies are not
anymore available

91
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Civpro tips: A obtained a loan from Bank X, secured by a mortgage. He failed to pay so
the bank foreclosed. A failed to redeem thus title was issued under the
What are the provisional remedies and which ones can be issued ex-parte? bank’s name. The court issued a writ of possession in favor of the bank. A
filed a complaint for annulment of the foreclosure with a prayer for
1. Rule 57: Preliminary attachment: can be issued ex-parte injunction.
2. Rule 58: Preliminary injunction: can be issued ex-parte
3. Rule 59: Receivership: can’t be issued ex-parte Will injunction lie? What is the effect of the action on the writ of
4. Rule 60: Replevin: can be issued ex-parte possession?
5. Rule 61: Support pendente lite: can’t be issued ex-parte
No. Injunction will not lie. The court, in this case, is not doing something probably in
Basically, 57, 58 and 60. the violation of A’s rights as PNB was already entitled to possession of the property
as a matter of right. Further, A’s action has no effect on the writ of possession. As
Distinguish between levy and garnishment held in PNB v. Sanao, the judge to whom an application for writ of possesson is
filed need not look into the validity of the mortgage or the manner of its foreclosure.
Levy Garnishment No discretion is left to the TC in the issuance of a writ of possession. After the
The act whereby a sheriff sets apart or Species of attachment for reaching consolidation of title in the buyer’s name for the failure of the mortgagor to redeem,
appropriates for satisfying the command credits belonging to the judgment writ of possession becomes a matter of right. It is enforceable by mandamus.
of a motion of execution, a part of the debtor and owing to him from a stranger
whole of the judgment debtor’s to the litigation. It is an attachment by B, a student, filed an action for declaratory relief against her school to
property means of which the plaintiff seeks to determine whether she deserves to graduate with honors. Is this action
subject to his claim property in the tenable?
hands of a third person or money owed
by such third person or garnishee to the No. A petition for declaratory relief is an action which any person interested under a
defendant. deed, will, contract, or other written instrument, whose rights are affected by
statute, executive order or regulation, or ordinance, may, before breach or violation
Discuss the rules on issuance of TRO by the MTC, RTC, CA and SC as to thereof, bring to determine any question of construction or validity arising from the
periods and places of effectivity. instrument or statute and for a declaration of his rights or duties thereunder.

MTC RTC CA SC No. There is no justiciable controversy that is ripe for judicial determination. A
Effectivity Within Within territorial Binding to Binding to justiciable controversy is defined as adefinite and concrete dispute touching on the
territorial jurisdiction of said parties parties legal relations of parties having adverse legal interest which may be resolved by a
jurisdiction court anywhere in anywhere in court of law through the application of a law.
of said court the the
Philippines Philippines
Duration 20 day TRO 20 days [great or 60 day Effective The requisites for a petition for declaratory relief as held in jurisdprudence area as
irreparable injury] duration until further follows:
orders
OR 1. Existence of justiciable controversy
2. The controversy is between persons whose interests are adverse
72 hour in multi- 3. That the party seeking relief has a legal interest in the controversy
sala court [extreme 4. The issue involved is ripe for judicial determination
urgenc  grave
injustice/irreparable
injury]

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

C obtained a loan from D. C defaulted in payment and refused to comply G is a lessee of a building owned by L paying a rental of 100k a month. L
with D’s demand. D filed a collection case, especially after learning that C died and since then, G has not paid rents amounting to 1M, because 2 heirs
was planning to go abroad and was selling her properties. What can D pray of L are claiming both rental payments. What action should G take, before
for in the complaint? Aside from the amount of the loan, can D ask for what court and against whom in order to protect his interest?
damages?
G should file an action for interpleader against the two heirs in the RTC (the court is
D can ask for a preliminary attachment. As provided in Rule 57 Sec 1, a plaintiff or dependent on the amount for it is an action that involves the title to or possession
any proper party may have the property of an adverse party attached as security of real property or any interest therein) A complaint for interpleader is proper
for the satisfaction of any judgment in an action for the recovery of a specified whenever conflicting claims upon the same subject matter are made against a
amount of money or damages, other than moral and exemplary, on a cause of person who claims no interest whatever in the SM or an interest which in whole or
action arising from contract against a party who is about to depart from the in part is not disputed by the claimants. He may bring an action against the
Philippines with intent to defraud his creditors. Therefore, D can ask for preliminary conflicting claimants to compel them to interplead and litigate their several claims
attachment but not moral or exemplary damage. among themselves. In this case, he can bring an action against the two heirs to
compel them to litigate their claims among themselves so that he will finally know
Give the two stages in the action for expropriation. How are both appealed? who he should pay the rents to.

As held in Municipality of Binan v. Garcia F obtained a loan from X to buy machines for her garment factory. F
executed a chattel mortgage over said machineries. However, F defaulted
There are two (2) stages in every action of expropriation. in the payment of the loan. X sought the delivery of the machines so that
 FIRST: Determination of authority of plaintiff to expropriate. they can be sold at foreclosure sale but F refused, contending that it would
o Can end with either an order of expropriation or dismissal. Both result into a stoppage of business. What are X’s legal remedies?
are FINAL orders.
o REMEDY: record on appeal within 30 days from notice As held in the case of Northern Motors v. Herrera: Because of F’s default, X, as the
 SECOND: Determination of just compensation for the property sought to creditor and chattel mortgagee, has two remedies
be taken. Done with assistance not more than 3 commissioners.
o This order is also FINAL. 1. Writ of Replevin: A party praying for the recovery of possession of personal
o REMEDY: record on appeal 30 days from notice property may, at the commencement of the action or at any time before
answer, apply for an order for the delivery of property to him upon showing in
F secured a judgment in a damage suit against D from the RTC. The an affidavit that the applicant is entitled to the possession thereof, that the
judgment was entered on January 1, 2007. It has not been executed. On adverse party is wrongfully detaining the property, that the property has not
April 15, 2007, F decided to enforce the judgment. beein distrained or taken for a tax assessment or a fine or seized under a writ
of execution or preliminary attachment or otherwise placed from custodial egis
How will F enforce the judgment? If F wanted to execute on April 3, 2006, and additionally, the market value of the property. Applicant must also give a
what should she do? bond. This is to secure possession as a preliminary to the sale contemplated in
the chattel mortgage law.
Rule 39 Sec 6 provides the following: 2. Effect judicial foreclosure of the mortgage

 BEFORE FIVE YEARS FROM ENTRY: may be executed on motion


 AFTER FIVE YEARS FROM ENTRY + BEFORE PRESCRIPTION BARS:
enforced by action (independent action for execution)
o Note: This revived judgment may also be enforced by motion
within 5 years after the date of its entry and after 5 years, by
action also.

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

M filed an unlawful detainer case before MTC of Rizal against T for refusing to d) If T raises questions of ownership, what is its effect on MTC’s
vacate the leased premises after the expiration of the lease contract and for non- jurisdiction?
payment of rentals. As counterclaim, T claimed moral damages in the amount of
1M. None. As held in Hilario v. CA, all FEUD cases have to be tried pursuant to the
revised rule on summary procedure regardless of w/n the issue of ownership is
a) May MTC proceed to try the case including the claim for 1M? alleged by a party. The lower courts retain jurisdiction over FEUD cases even if the
question of possession cannot be resolved without passing upon the issue of
Yes. RoC provides that original exclusive jurisdiction over unlawful detainer cases. ownership. The lower courts however, can only pass upon the issue as to ownership
The claim for damages is only incidental to the principal case of unlawful detainer. for the sole purpose of determining possession. Hence, an adjudication made by the
However, as held in the case of Maceda v. CA, a counterclaim in the MeTC/MTC lower court is merely provisional in nature.
beyond its jurisdictional limit may be pleaded ONLY by way of defense, but not to
obtain affirmative relief F filed an ejectment case against G. G was ordered to vacate the property.
However, after leaving the property, G secretly re-entered the property and
b) In case T is adjudged to vacate the premises and to pay the accrued built a shanty thereon. What can F file against G? How must proceedings be
rentals in arrears, how can she stay the execution? commenced and where should the charge be filed?

The GR is that a judgment in a FEUD case is immediately executory. However, it can As provided in Rule 71, G’s acts fall squarely under the provisions on indirect
be stayed upon the execution of the following acts: contempt. Disobedience of or resistance to a lawful writ process order or judgment
1. T must perfect his appeal (to the RTC under rule 40) within the of the court by a person who, after being dispossessed or ejected from any real
reglementary period property by the judgment of any court of competent jurisdiction, enters such real
2. T must file a sufficient supersedeas bond, approved by the MTC and property for the purpose of executing acts of ownership or possession, or if a person
executed in favor of M to pay rents, damages, costs, etc who, in any manner, disturbs the possession given to the person adjudged to be
3. T must also make periodical deposit with the appellate court the entitled thereto is liable for indirect contempt. Hence, F can file indirect contempt
amount of rent due from time to time under the contract (if any) as charges against G.
determined from the MTC judgment
Proceedings for indirect contempt can be initiated motu proprio by the court against
Additionally, the case of Benedicto v. CA provides that preliminary injunction to be which the contempt was committed OR by a verified petition with supporting
granted to stay the immediate execution upon showing that there exists a right to particulars involving documents or papers required. It shall be filed with the RTC of
be protected and that the acts against which the writ is to be directed violate said the place where the lower court (MTC in this case) is sitting, but the charge may
right. also be filed in the lower court itself.

c) Distinguish forcible entry from unlawful detainer In case of sum of money filed by B against P, the RTC granted ex-parte B’s
prayer for issuance of writ of attachment. The writ was immediately
Forcible Entry Unlawful Detainer implemented by the sheriff. P filed a motion to discharge the writ on the
The plaintiff has prior possession and Defendant unlawfully withholds ground that it was issued or implemented without prior service of
he is deprived thereof by FISTS possession of the property after the summons. B opposed on the ground that the writ can be applied for and
expiration of his right thereto under any granted at the time of commencement of action or at any time thereafter,
contract, express or implied. and that, in any event, the summons eventually served cured whatever
irregularity that might have attended the enforcement of the writ.
 No prior possession by plaintiff
required! Rule on the conflicting contentions.
No demand to vacate is required Demand to vacate is required
To count 1 year period of dispossession, To count 1 year period of dispossession, Davao Light v. CA
count from date of actual entry except from the date of last demand to vaate.
when there is stealth Writs of attachment may properly issue ex parte provided that the Court is
satisfied that the relevant requisites therefor have been fulfilled by the applicant,
although it may, in its discretion, require prior hearing on the application with notice
to the defendant; but that levy on property pursuant to the writ thus issued
may not be validly effected unless preceded, or contemporaneously
accompanied, by service on the defendant of summons, a copy of the

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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

complaint (and of the appointment of guardian ad litem, if any), the application for an ordinary action for its nullification, an action which properly falls under the
attachment (if not incorporated in but submitted separately from the complaint), jurisdiction of the Regional Trial Court.
the order of attachment, and the plaintiff's attachment bond.
The ordinary action for nullification was not specified by the SC.
Therefore, no levy on attachment pursuant to a writ of attachment shall be enforced
UNLESS Difference of Rule 45 and Rule 65

1. It is preceded or contemporaneously accompanied by service of Rule 45 – Petition for review on


Rule 65 – Petition for certiorari
summons certiorari
(special civil action of certiorari)
2. Service of summons together with a copy of the complaint, the (appeal by certiorari)
application for attachment, the applicant’s affidavit and bond nd the
order and writ of attachment, on the defendant within the Philippines Involves correction of errors of
Involves errors of jurisdiction
judgment
However, don’t forget that service of summons is not required where:
Mode of appeal Special civil action
1. The summons could not be served personally or by substituted service
despite diligent efforts
Petition raises issues as to w/n the
2. Defendant is a Philippine resident who is temporarily abroad
lower court acted w/o jurisdiction
3. The defendant is a non-resident or Petition based on question of law
or in excess of jurisdiction or with
4. The action is one in rem/quasi in rem (like in Valmonte)
GADALEJ
As to the argument that the service of summons was cured, it must be remembered Directed against an interlocutory
that in the implementation of a writ of attachment, jurisdiction over the defendant is Involves review of the judgment order of the court where there is
mandatory. award or final order on the merits no appeal or any other plain,
speedy and adequate remedy
May a petition for prohibition be filed to prevent the enforcement of the
implementing rules and regulations issued by a government agency, the Filed not later than 60 days from
Must be made within the
ultimate relief sought being the nullification thereof. notice of judgment, order or
reglementary period
resolution appealed from
In Holy Spirit Homeowners Association v. Defensor, a petition for prohibition is not
the proper remedy to assal an IRR issued in the exercise of quasi-legislative Unless a writ of preliminary
function. Stays the judgment or order
injunction or TRO is issued, does
appealed from
not stay the challenged proceeding
Prohibition is an extraordinary writ directed against any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, Petitioner and respondent are
ordering said entity or person to desist from further proceedings when said Parties are the aggrieved party
original parties to the action, lower
proceedings are without or in excess of said entity’s or person’s jurisdiction, or are against the lower court, quasi-
court or quasi-judicial agency not
accompanied with grave abuse of discretion, and there is no appeal or any other judicial bodies and prevailing party
impleaded
plain, speedy and adequate remedy in the ordinary course of law.
MR or MNT required. If MR or MNT
Prohibition lies against judicial or ministerial functions, but not against legislative or filed, period shall not be
MR not required
quasi-legislative functions. Generally, the purpose of a writ of prohibition is to keep interrupted but another 60 days
a lower court within the limits of its jurisdiction in order to maintain the shall be given to the petitioner
administration of justice in orderly channels. Prohibition is the proper remedy to
afford relief against usurpation of jurisdiction or power by an inferior court, or when,
in the exercise of jurisdiction in handling matters clearly within its cognizance the Court is in the exercise of appellate
Court exercises original jurisdiction
inferior court transgresses the bounds prescribed to it by the law, or where there is jurisdiction and power of review
no adequate remedy available in the ordinary course of law by which such relief can
be obtained. Where the principal relief sought is to invalidate an IRR, the remedy is

95
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

Where the “at least 5 days in any event” applies Depositions

1. Bill of Particulars When leave of court required When not required


2. Motion to dismiss Depositions under Rule 24: Depositions under Rule 24:
3. Interpleader depositions pending action when answer depositions pending action when answer
4. Review of judgments and final orders of COA to complaint has been served has not been filed but after jurisdiction
has been obtained over defendant
Two aspects of Mandamus. In the second aspect, when will the action be Depositions under Rule 25: Deposition PENDING appeal under
mandamus and when will it be quo warranto? interrogatories to parties when answer Rule 24
to complaint has been served
The two aspects are as follows: Request for admission under Rule Depositions under Rule 25:
26: request for admission does not interrogatories to parties when answer
1. When one unlawfully neglects the performance of an act which the law require court approval has not been filed but after jurisdiction
specifically orders as a duty resulting from an office, trust or station has been obtained over defendant
2. When one unlawfully excludes another from the use and enjoyment of a right or Rule 27: Motion for production of
office to which such other is entitled. inspection of documents or things
Rule 28: Motion for physical and mental
A quo warranto proceeding is a demand made by the state upon some individual or examination of person
corporation to show by what right they exercise some franchise or privilege
appertaining to the State. An action for usurpation of a public office, position or WHEN A DEPOSITION OF A WITNESS, WHETHER OR NOT A PARTY, MAY BE
franchise may be commenced by a verified petition brought in the name of the USED BY ANY PARTY FOR ANY PURPOSE  deposition may be used without
Republic of the Philippines AGAINST a person who usurps, intrudes into, or the deponent actually being called to the witness stand: when the court finds
unlawfully holds or exercises a public office, position or franchise. that (D-A-A-S-E-100)

Hence, it will be quo warranto when there is usurpation/unlawful exercise of a public a. The witness is dead
office, position or franchise. In mandamus, the respondent doesn’t have to hold the b. The witness resides more than 100km from the place of trial or hearing
position and doesn’t have to claim title to it while in quo warranto, respondent must c. The witness is abroad UNLESS it appears that his absence was procured by the
be unlawfully holding/exercising it. party offering the deposition
d. The witness is unable to attend or testify because of age, sickness, infirmity
Rule 65 Sec 7: or imprisonment
e. That the party offering the deposition has been unable to procure the
The court in which the petition is filed may issue orders expediting the proceedings, attendance of the witness by subpoena
and it may also grant a TRO or a writ of preliminary injunction for the preservation f. Upon application and notice, in exceptional circumstances wherein the
of the rights of the parties pending such proceedings. testimony of the witness is important

The petition (for certiorari, mandamus or prohibition) shall not interrupt the course A bought a lot from B. By mistake, A built a house on the adjoining lot
of the principal case unless a TRO or injunction has been issued, enjoining the owned by C. C discovered the structure and she filed a case of forcible
public respondent from further proceeding with the case. entry against A. Will it prosper?

The public respondent (court/officer/agency) shall proceed with the principal case No. FISTS must be a ground for forcible entry. If mistake is the reason for the
within 10 days from the filing of a petition for certiorari absent a TRO/injunction. alleged wrongful intrusion, a case for forcible entry will not prosper.
Failure of the public respondent to proceed with the principal case may be a ground
for an administrative charge.

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