Bar Notes on Civil Procedure (Dean J) Zyra C.

CIVIL PROCEDURE-JURISDICTION Substantive laws: Constitution Judiciary Reorganization Act of 1980 (BP 129), JudiciaryReorganization Act of 1948, and their amendatory laws Phils has integrated judicial system, with the Supreme Court being the only Constitutional Court. The jurisdiction of the Supreme Court is given in the Constitution, not in BP 129. Mentioned also in JA 1948 The repealing clause of BP 129 only repealed the provisions of the JA 1948, which are inconsistent with its provisions. No conflict between them coz BP 129 speaks nothing about jurisdiction of the SC. Jurisdiction in Consti, JA 1948&1980 is classified into original, appellate and concurrent. One of the purposes why BP 129 was enacted is, to do away with concurrent jurisdiction. But it still applies. o Ex.Under the Consti, SC exercises original jurisdiction over public ministers and consuls. But BP 129 grants the same to RTCs. Since Consti does not use the word exclusive, both courts exercise concurrent jurisdiction. o Vesting of the Consti unto the SC of original jurisdiction over certiorari, prohibition, mandamus, quo warranto and habeas corpus cases. BP 129 grants to the Court of Appeals original jurisdic tion over the same cases WON in aid of its appellate jurisdiction. o So, three courts have original jurisdiction over CPMQH cases, the SC, CA and RTC. They exercise original and concurrent J. Principle on the Hierarchy of Courts- petitioner should first file with the RTC or CA before resorting to SC although it has original jurisdiction over the same petition, as not to overwhelm it. Appellate jurisdiction of SC. Consti does not mention that this is exclusive, unlike JA 1948. It is simply SCs appellate jurisdiction. There is nothing wrong if CA decides to take cases brought to it on appeal. After all, the decisions of CA can still be reviewed by SC through a petition for review on certiorari under Rule 45. BP 129-original and exclusive, when it comes to the authority of CA to annul judgments of RTC. But it does not follow that CA can also annul the judgment rendered by MTC. A petition to annul a judgment rendered by trial courts to CA is limited to judgments rendered by the RTC. It does not extend to annulment of judgments rendered by an inferior court,by the MTC. MTC is not immune from annulment. The annulment of judgment rendered by an inferior court (MTC), is cognizable by RTC. BP 12 does not expressly say that RTC is a court of general jurisdiction. But it mentions that RTC shall have exclusive original jurisdiction over all cases and issues allocated especially to other courts. This is the justification for considering that RTV is a court of general jurisdiction. SC cannot be considered as a court of a general jurisdiction, it is rather, a court of limited jurisdiction, like CA, the MTC. Only the RTC is court of general jurisdiction because of the vesting of allocation of authority to it. No similar vested to the latter. It is jurisdiction over the subject matter or the nature of the action that is a matter of substantive law. But when it comes to the jurisdiction. Over the person of the parties, the person of the plaintiff, the person of the defendant, the res, or the issues, these aspects of jurisdiction are no longer substantive in character. They are purely procedural. Like CA and SC, the RTCalso exercise original and appellate jurisdiction. There is only on court in our judicial system there which exercises plainly original jurisdiction - that is, the Municipal Trial Court or Metropolitan Trial Court. There is no lower court than it, so it cannot be allocated appellate jurisdiction power to review decisions rendered by other courts. The appellate jurisdiction of CA is generally broader than the SC. Follow first instinct, the proper appellate court is CA.

Regional Trial Court Its original jurisdiction is divided by BP 129 into two parts: purely original jurisdiction, and the original and exclusive jurisdiction. When it comes to purely original jurisdiction, is limited to cases of CPMQH and its original jurisdiction over cases involving ambassadors, public ministers and consuls. It is in the exercise of original and exclusive jurisdiction where BP 129 enumerates several instances cognizable by the Regional Trial Court. RTC: Cases which are incapable of pecuniary estimation: SC jurisprudence: if the recovery of money is only incidental to the relief that is prayed for in the complaint, that action is not capable of pecuniary estimation. o Ex. A complaint for specific performance plus a prayer for recovery of damages. There is a prayer for recovery of damages, but it is not the principal relief that is sought by the plaintiff. But there are instances where the recovery of money is the principal relief that is sought in the complaint or the petition, and yet the case is classified as one which is not capable of pecuniary estimation.. o Ex. In an expropriation proceedings or eminent domain, payment of just compensation is one of the principal reliefs that will be sought by petitioner. o Foreclosure of real estate mortgage, to recover unpaid loan from a contract upon which mortagage was based. The complaint foreclosure of mortgage will always carry with it a relief for the payment of the loan. These actions are considered as incapable of pecuniary estimation, BECAUSE, there is another principal issue that is involved. And this other principal issue must first be decided before the recovery of money, which is another principal issue to be resolved by the Court. o In foreclosure of mortgage, the first principal issue that should first be resolved by the Court is WON mortgagee has the right to foreclose.This is not capable of pecuniary estimation. o In expropriation proceedings, ,WON plaintiff has the right to expropriate. IPE. If an action possesses several characteristics, that, the issue is one that is not capable of pecuniary estimation but it is also simultaneously a real action, it is always cognizable by the RTC. That feature of incapable of pecuniary estimation will always prevail over the other characteristics of the action being a real action. That is the reason why foreclosure of real estate mortgage or expropriation of real property will always be cognizable by the RTC. We do not factor in the assessed value of the property in ascertaining the jurisdiction of courts. Role of Assessed value determining jurisdiction of properties in

Bar Notes on Civil Procedure (Dean J) Zyra C.

If the real property involved in litigation does not have an assessed value, could that happen? YES! There are several properties in the country which have not been assessed for tax purposes. So, how do we now know / determine the jurisdiction of the court if the property involved has no assessed value? Well, all you have to do is to go to the neighboring lots, until you locate the property that has an assessed value. And that will be the basis in ascertaining the jurisdiction of the court. Assessed valuation of the property plays an important role in determining the jurisdiction of the court, ONLY if the property isreal property. But when the property is personal property, jurisdiction is determined by the valuation given by the plaintiff to the car. o So, if the plaintiff in the complaint says that the car is worth P500,000, then the case is cognizable by the RTC. o The jurisdiction of the court when it comes to the recovery of personal property, or for the recovery of money for that matter, will depend on the allegations contained in the complaint. Even if the valuation given is exaggerated or bloated, the jurisdiction of the court will always be ascertained by allegations contained in the complaint. o The truthfulness or falsity of the allegations will be determined later on by the court but that will not affect the jurisdiction of the court. Principle of Adherence of Jurisdiction- once a court acquires jurisdiction over a case based on the allegations contained in the complaint, the court continues to exercise jurisdiction until the case is finally adjudicated. o Plaintiff seeks to recover P500T. During the trial, the plaintiff is able to o prove that his entitlement is only P150T which is below the jurisdictional amount of the RTC. Can the RTC render validly a judgment for the payment? YES. Who has jurisdiction over a complaint for the recovery of P1m, RTC or MTC? Under the expanded jurisdiction of inferior courts, there are three items that should be excluded in the determining the courts jurisdiction when it comes to recovery of money, interests, attorneys fees, damages and charges of whatsoever kind should not be included in ascertaining jurisdiction of the court, but they should be included in fixing filing fees. Always factor in the excludeditems in determining the jurisdiction of courts whenever it comes to the recovery of money. So, if the complaint is for the recovery of the plaintiff of P1M, it is not correct to say right away that the case is cognizable by the RTC. That case could be cognizable by the inferior court depending on the details of P1M embodied in the complaint. If the principal sought to be recovered is only P200,000 but the balance of P800,000 covers expenses, attorneys fees, damages and interests, the case is cognizable by an inferior court. o One of theoptions given to the plaintiff is just waive his entitlement to the excess of P400,000. Jurisdiction of inferior courts Practically all cases that are triable by the RTC could not be tried by an inferior court, depending on the amount involved. Does it not make these courts, courts of general jurisdiction? NO. Even if we take into account the expanded jurisdiction of inferior courts, they are still courts of limited jurisdiction. It is only the CFI that is vested with authority to try and decide cases of any kind, which are not allocated to other courts. This provision is not contained in the allocation of cases given to inferior courts by BP 129 and the amendatory statutes. The totality test Memorize section 33, BP 129. The totality of all the claims embodied in once complaint shall be the basis in determining jurisdiction, WON these claims arise out of the same or different transaction, or whether they belong to the same or different persons. (Not the same as in Rules of Court) Is it proper for BP 129 to provide the totality test in determining jurisdiction? YES, because jurisdiction over the subject matter and nature of the action is really substantive law. That is a prerogative given exclusively to the legislature. Delegated jurisdiction of inferior courts To try land registration and cadastral cases, regardless of the value, if thecase is uncontested. The delegation should be limited to properties the values of which do not exceed P100,000. The appeal from these cases should not be to the RTC. The cadastral and land registration cases are tried by an inferior court. The inferior court acts as if it were a RTC. So, if there is an appeal from these cases, it should be brought to the CA. Generally, decisions rendered by an inferior court are appealable to the RTC but this is the lone instance where appeal from a decision rendered by an inferior court is taken directly to the CA. Interlocutory or Special Jurisdiction of Inferior Courts To habeas corpus cases when judges of the RTCs in that region are absent. This is an exercise of special jurisdiction by inferior courts. Primary jurisdiction- refers to situations where the case is cognizable both by the court of justice and a quasi-judicial or administrative agency. When that case needs for its resolution special skills and expertise of an A or QJ body (not possessed by courts), then jurisdiction should be given initially to it. The jurisdiction of the court can only come later after the A or QJ body has decided the case. Residual jurisdiction of the trial courts Residual jurisdiction is one that is left to be exercised by the trial court after thecase has been appealed to the higher court. Generally, when a case has been appealed, the jurisdiction over the appealed case is now vested with the appellate court. BUT! there are certain incidents that could still be decided by the trial court, notwithstanding the perfection of the appeal. Classification of Jurisdiction: 1. General- excercised over all kinds of cases, except those witheld from the plenary powers of court. 2. Limited- extends only to particular cases

Principle of Ancillary Jurisdiction o Complaint for the recovery of P150T. The case is cognizable by an inferior court. During the trial, the plaintiff presents evidence to show that he is entitled not only to P150,000, but to P700,000. Can the inferior court give an award of P700,000? o NO. Because the inferior court will be violation its limited jurisdiction. The jurisdiction of the inferior court is limited toeither P200,000 or P400,000. When the case is before an inferior court and the amount tobe awarded goes beyond the jurisdictional amount given in BP 129, the court cannot give the award, since this decision will be null and void.

Bar Notes on Civil Procedure (Dean J) Zyra C. 3. Original- excercised by courts in the first instance 4. Appellate- excercised by a superior court to review 5. 6.
and decide cases previously decided by a lower court now elevated for judicial review. Exclusive- confined to a particular court to the exclusion of others. Concurrent- pertaining to different courts over the same subject matter at the same time and place. The first court which validly acquired jurisdiction takes it to the exclusion of others. 1. 2. 3. CA in petitions for C, P and M against the RTC, Civil Service Comm, Central Board of Assessment Appeals, NLRC, Quasi-judicial agencies CA & RTC in petitions for C, P, M, Q and H against lower courts and bodies RTC in cases affecting ambassadors, public ministers and consuls

Remember that the SC is not a trier of facts, which means that passing upon a factual issue is not within its province. Also, it is not its function to determine the weight of the evidence supporting the assailed decision. However, factual issues may be delved into and resolved where the findings and conclusions of the trial court or the quasi-judicial bodies are frontally inconsistent with the findings of the CA. JURISDICTION of the SUPREME COURT According to Sec. 5 Article 8 of 1987 Consti (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. Exclusive Original Jurisdiction of SC: In petitions for C, P and M against CA, COMELEC, COA, CTA and the Sandiganbayan Concurrent Original Jurisdiction of SC w/: (subject to the principle of Hierarchy of Courts, meanung a higher court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts)

Appellate Jurisdiction by way of petition for review on certiorari (see Consti) What is the jurisdiction of the SC as provided in BP 129? -None coz the jurisdiction of the SC is provided in the Consti, not BP 129. -Jurisdiction of SC is also provided for in JA of 1948 -This was not repealed coz its provisions are not inconsistent with Consti, thus its provisions are still in effect JURISDICTION of the RTC Exclusive Original Jurisdiction (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; (2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds P20T or, for civil actions in Metro Manila, where such value exceeds P50T except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the MTCs; (accion reinvidicatoria) (3) In all actions in admiralty and maritime jurisdiction where the demand or claim exceeds P300T or, in Metro Manila, where such demand or claim exceeds P400T; (4) In all matters of probate, both testate and intestate, where the gross value of the estate exceeds P300T or, in probate matters in Metro Manila, where such gross value exceeds P400T; (5) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions; (this is the general jurisdiction of RTC) (6) In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law; and (7) In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses, and costs or the value of the property in controversy exceeds P300T or, in such other cases in Metro Manila, where the demand exclusive of the abovementioned items exceeds P400T. (8) In all cases enumerated under Sec. 5.2 of the Securities Regulation Code (intra-corporate controversies) Original Jurisdiction Those 2 mentioned after, only that, RTC may issue petitions of injunctions, but in issuing CPMHQI, which can be enforced in any part of their respective regions Concurrent & Original Jurisdiction w/ 1. SC in actions affecting ambassadors, other public ministers and consuls 2. SC & CA in petitions for CPMQH against lower courts, not including injunctions because these are issued by the RTC excercising its territorial jurisdiction Appellate Jurisdiction Over cases decided by lower courts in their respective territorial jurisdictions. Not ALL inferior

Bar Notes on Civil Procedure (Dean J) Zyra C.

courts, but only those which fall under its own territorial jurisdiction. JURISDICTION of the FAMILY COURT (1) Petitions for guardianship, custody of children, habeas corpus in relation to the latter; (2) Petitions for adoption of children and the revocation thereof; (3) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife; (4) Petitions for support and/or acknowledgment; (5) Summary judicial proceedings brought under the Family Code; (6) Petitions for declaration of status of children, petitions for commitment of children; the suspension, termination, or restoration of parental authority JURISDICTION of the COURT OF APPEALS 1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction; 2. Exclusive original jurisdiction over actions for annulment of judgements of RTC; and 3. Exclusive appellate jurisdiction over all final judgements, resolutions, orders or awards of RTCs, quasijudicial bodies, including the Securities and Exchange Commission, the Social Security Commission, the Employees Compensation Commission and the Civil Service Commission, Except those falling within the appellate jurisdiction of the SC in accordance with the Consti, the Labor Codeand the Judiciary Act of 1948. CA shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or Appeals must be continuous and must be completed within three (3) months, unless extended by the Chief Justice. What are the exceptions to CAs appellate jurisdiction: COMELEC, COA JURISDICTION of INFERIOR COURTS In MTC cases, some items are excluded in order to ascertain jurisdiction, like interest, damages, attorneys fees, litigation expenses and costs The law does not expressly provide but provisional remedies may be granted or denied by inferior courts. The MTC has exclusive original jurisdiction to grant or deny such in cases where the principal action is within its jurisdiction. If a plaintiff failed to allege the amount of the property in question, the case will be dismissed due to to a failure to state a cause of action, since the amount of the property cannot be determined, the jurisdiction cannot be ascertained, hence a lack of jurisdiction, a ground for dismissal. RULE 1- GENERAL PROVISIONS Rules of Court, Sec. 6 Constructions Should be liberally construed not in favor of the plaintiff nor the defendant, nor anubody but for the sole purpose of providing for a speedy and inexpensive disposition of the case. Exceptions: some provisions which public policy requires to be applied and interpreted strictly, like the procedure on appeal of cases (dates provided to perfect an appeal) Can the Courts disregard the application of the RuC if they feel that its application will lead to injustice? No. Only the SC can waive them as a privilege. Limitations concerning the prerogative of the SC to promulgate rules in pleadings, practice and procedure 1. The rule should be uniform in all courts of the same grade, so that they should have one set of rules applicable to all courts. There are certain instances when special rules can be promulgated by the SC in the adjudication of cases. o The rule on summary procedure. That applies principally to cases that are triable by inferior courts. In excercising jurisdiction over matters involving forcible entry and unlawful detainer, only the issue of possession may be raised.

2. The rules should not modify, limit or increase

1. Actions involving PERSONAL property, whose value 2. 3. 4.

does NOT exceed P300T or in MM, the value does not exceed P400T. Demand for money NOT exceeding... Probate proceedings where the gross value does NOT... Actions involving title to or possession of REAL property, or interest therein where the assessed value or interest does NOT exceed P20T or in MM, does not exceed P50T. Inclusion or exclusion of voters Admiralty and maritime cases where demand or claim does NOT exceed... Those covered by the Rules on Summary Procedure, like Forcible Entry, and Unlawful Detainer and other civil cases except probate proceedings not exceeding P100T and in MM, those not exceeding P200T

substantive rights given by substantive law. The rules on civil actions that took effect on 1 July 1997. Before 1997, we had the RC which took effect on 1 January 1964. Before 1 January 1964, we had the RC which took effect on 1 July 1940. So between 1940 and 1964, we had the same set of procedural rules. With regard to the 1997 Rules on Civil Procedure, do they cover all civil actions filed after 1997 effectivity? Yes, because there was prospective application.

5. 6. 7.

Classification of Actions (Cases governed) Rule 1, Sec. 3 Criminal actions, civil actions, and special proceedings. Civil action-one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong Special civil actions-those not governed by the rules on ordinary civil actions Special proceedings-a remedy by which a party seeks to establish a status, a right or a particular fact How many parts are there in the RC? 5- Civil Procedure, Criminal Procedure, Special Proceedings, Evidence, Legal Ethics

Bar Notes on Civil Procedure (Dean J) Zyra C.

Real action and personal action (for purposes of venue) R4 An action in rem and an action in personam R 39, sec. 47 attachment could be issued in cases where the defendant could not be served with summons that is by personal or substituted service. Attach the properties of the defendant so that the court will acquire jurisdiction (after publication) to try the case at least over the attached properties. Could it be further re-converted into an action in personam? YES. If the defendant answers the complaint after the publication of the summons, the case is re-converted into in personam. But if the defendant files a responsive pleading and the court does acquire jurisdiction over his person, then the case remains to be classified as an action quasi-in rem or in rem.

Sub-classifications An action quasi-in rem- to distinguish it from an action which is pure in re, and an action which is purely in personam. Mixed actions- when an action vests the char acteristics of personal and real actions

Is it important for a litigant to know the classification of his action? Yes. If the action under real or personal, diff rules on venue should have to be applied. If the action is in rem or in personam, the effect of the judgment will be diff. Can an action be in rem and a personal action at the same time? Yes. Real and personal action are based on their privity to the kind of property involved. When it comes to in rem or in personam, the basis of classifying these actions is the binding effect of the judgment. If the judgment will bind anybody who has an interest in the case, then the action is one that is in rem. If it is purely in personal, the binding effect of the judgment is limited only to the parties involved or the successors in interest. How do we classify an action for the recovery of real property (that is accion reinvidicatoria)? It is a real action because it involves title to or possession of real property. Accion reinvidicatoria, although it is a real action, is an action in personam. When the action involves real property, title to or possession of real property, it is always a real action. But it does not mean to say that it is an action in rem, because the judgment in an accion reinvidicatoria will bind only the plaintiff and the defendant and their successors in interest. o Accion reinvidicatoria is filed by A against B, for the recovery of title to a piece of land. Judgment is rendered in favor of the plaintiff as the owner of the land. Judgment is now final and executory. So A is now the owner of the land. Later on, can X, a third party, file a complaint against A for the recovery of the ownership of that same land? o YES, because X is not bound by the judgment in the first case between A and B. Not all actions involving title to or possession of real property are actions in rem. Only land registration or cadastral proceeding. If an action or a proceeding involves personal property; Could it also be an action in rem? Yes. o The intestate proceeding or the settlement of the estate of a deceased personm because the Civil Code says that an action for the probate of a will binds anybody that has an interest in the estate of the decedent. But if the estate of the decedent consists only of personal property, that action in rem should be classified as a personal action because it does not involve title to or possession of real property. Even if an action has been classified as in rem or in personam, they could still be further classified as real or personal action depending on the nature of the property.

Actions in rem/quasi-in rem converted to action in personam Will it make a difference if this action is classified as in rem or quasi-in rem or it is now classified again as an action in personam? YES, If the defendant answers and therefore the case are converted from quasiin rem to in personam, the court can render a judgment that will direct the defendant to pay the obligation as proven by the plaintiff. When the action remains to be quasi-in rem, the jurisdiction of the court is limited only to the property that has been attached, so the jurisdiction of the court is limited to awarding to theplaintiff the value of the attached properties. But if the defendant appears or files an answer, the jurisdiction of the court will extend to the person of the defendant and, therefore, the court can render a judgment directing the defendant to pay the entirety of the claim. Commencement of Action, Rule 1, Sec. 5 The rule is very clear, that an action is commenced by the filing of the original complaint. If the complaint is later on amended under Rule 10, commencement is always reckoned from the filing of the original complaint. When an additional defendant is impleaded Same; Rules on prescription in so far as the additional defendant is concerned, counted from the time that the amended complaint is filed by the plaintiff. Payment of Docket Fees Even if a complaint has been filed a court will not be able to acquire jurisdiction over the case if the docket fees have not been paid. But in subsequent rulings, if there is failure to pay the correct docket fees, as long as the plaintiff pays the correct docket fees within the prescriptive period, the court will acquire jurisdiction.

RULE 2- CAUSE OF ACTION & RULE 3- PARTIES TO A CIVIL ACTION Basis of Ordinary Civil Action- Rule 2, Section 1 Before a plaintiff files a case in court, the natural assumption is that the plaintiff has a grievance against the defendant. A person will not go to court and sue somebody else unless this person feels that his right has been violated by this other person, and this situation gives rise to the concept of a causeof action. There is a classification of civil actions into ordinary and special civil actions. For every ordinary civil action there must be a cause of action. Does it mean to say that when the action is a special civil action there is no longer a need for a cause of action? No. There are certain special civil

Actions in rem and in personam Important in ascertaining WON jurisdiction could be obtained by the court after publication of summons If an action starts as an action in personam, will it remain to be in personam throughout the life of the case? No, depending on the conduct of the plaintiff How could we convert this action in personam into an action in rem or quasi-in rem? Preliminary

Bar Notes on Civil Procedure (Dean J) Zyra C.

actions, which can be filed in court even without a cause of action. Special civil actions that do not require a cause of action There are at least two special civil actions, which can be filed properly even if there is no cause of action, plaintiff does not allege that he has a right which has been violated: 1. Complaint for interpleader 2. Declaratory relief The court still has jurisdiction over the case. The ground for dismissal will be founded on failure to state a cause of action. One wrongful act give rise to more than one cause of action Does the rule tell us that one wrongful act will give rise to only one cause of action? No. One wrongful act could give rise to two or more causes of action, depending on the number of rights that are violated by this wrongful act, as long as these rights belong to different persons. The rule is that for every cause of action, one complaint can be filed. o Supposing that there is just one contract between A and B but the contract require the performance of an obligation in separate installments. B, the debtor borrows money from A, the creditor, P1M. o The obligation is payable on four equal installments of P250,000 each. The first installment will be defaulted. Will the default in the payment of the first installment give rise to one cause of action? YES. Only for the amount that has already matured and is unpaid by the debtor. o Not the 1M, creditor has no right to enforce the collection of the balance After default of 1st installment, one can file a case for the recovery whole amount. YES, provided that in the contract there is what we cal in Civil Law as an acceleration clause. The default in one installment will cause the entirety of theobligation to become due. In the absence of an acceleration clause, a complaint could be filed for the recovery of the defaulted installment. If the 2nd installment is also defaulted, then another complaint can be filed by the creditor because each installment due and unpaid will give rise to one cause of action. But the limitation to this rule is that if at time of the filing of the complaint all the installments have become due and are defaulted, only one complaint can be filed by the creditor. Or else he will be violating the rule on splitting a cause of action and it is possible that all the complaints will be dismissed by the court. Rule on anticipatory breach of contract May there be a situation where the creditor can file a complaint for the recovery of the whole obli even before maturity of the 1st installment or of the entire loan? The general rule is that a creditor cannot compel the debtor to perform his obligation before maturity. But if the debtor tells the creditor before maturity that he has no intention at all of paying his obligation, then civil law considers that as a breach of contract. The debtor loses the benefit of the period, obligation becomes due immediately. Splitting a cause of action This is the act of dividing one cause of action into several parts and making each part a basis for a separate complaint. From the point of view of recovery by the creditor, there will be no justification for disallowing splitting a cause of action, because even if in all the cases the plaintiff eventually wins, he will recover from the defendant only the amount which really belongs to him. The REASON why the Rules prohibit splitting a cause of action is, there is a great possibility that the diff courts trying these diff cases found on the same cause might render conflicting decisions.

Do we apply the same principle to the other special civil actions? NO. Another special civil action is forcible entry and unlawful detainer, where the plaintiff cannot file a complaint unless he alleges the plaintiff alleges that he has a rightto possess the property and that this right has been violated by the defendant. So in the existence of a cause of action, if the civil action is an ordinary civil action there must always be a cause of action, otherwise the complaint is going to be dismissed under Rule 16. Failure to allege a cause of action is one of the grounds for the dismissal of a civil case. But when the civil action is a special civil action there may or may not be a need for the existence of a cause of action.

Cause of Action defined- Rule 2, Sec. 2 Is it necessary that the plaintiff wait for the actual violation of his right before he can file a complaint in court? NO. Relate the definition of a cause of action to that in Rules 1&2. In Rule 1 an action is defined as one filed in court for the protection or enforcement of a right or the prevention or redress of a wrong. So even before a wrong is committed, as long as there is a threat to violate the right of the plaintiff, the plaintiff can now go ahead and file a complaint in court. One of the purposes of a civil action is to prevent the commission of a wrong that will violate the right of the plaintiff. o A complaint for injunction. The plaintiff will allege that the defendant is threatening to violate his right. The cause of action consist really of two essentials: (1) the existence of a right, (2) the violation or a threat to violate the right. Is it necessary or is it essential for the plaintiff also to allege that as a result of the violation of his right, that he has suffered damages? NO. The Rules only require that there is a right and that this right has been violated. In the Civil Code, for breach of contract the remedy suggested is specific performance or rescission of contract with damages in either case. It does not say that he must always accompany his claim for the payment of damages that is left entirely to the discretion of the right holder. If these two essentials are present in the complaint, is it possible that this complaint does not adequately allege cause of action? YES. Because under our present Rules there are several conditions precedent required by these Rules before a cause of action could accrue. o Prior barangay conciliation, Arbitration clause in contracts, Certificate of non-forum shopping, and requirement in the Civil Code that if the litigation is between members of the same family, earnest efforts towards a compromise must have been made before going to the court. Prior Barangay Conciliation If a case is covered by prior barangay conciliation and there is no allegation that this condition precedent has been satisfied, the absence of the allegation does not deprive the court of jurisdiction.

Bar Notes on Civil Procedure (Dean J) Zyra C.

Remedies of defendant where plaintiff splits cause of action If the creditor splits his cause of action in violation of the Rules, what is the remedy of the defendant? He can file a motion to dismiss since splitting a cause of action could lead eitherto litis pendencia or res judicata. Supposing the defendant does not invoke litis pendencia, he does not file a motion to dismiss, can the court, on its own, dismiss anyone of the cases based on litis pendencia? Yes, Rule 9, which enumerates the grounds for dismissal and which are not waivable. Even if a defendant does not avail or does not invoke such, the court on its own, if it discovers the existence of litis pendencia, can order the dismissal of one of the cases. In litis pendencia, although the court can on its own order the dismissal of a case, the Rules do not authorize the court to dismiss all the cases. There should be a case retained between the plaintiff and the defendant, this relies solely on the discretion of the defending party and & the court. Splitting of a cause of action in relation to forum shopping If there is litis pendencia, there is also violation of forum shopping, elements are the same If a complaint or other initiatory pleading is filed without the correlat ive certificate on non-forum shopping, this complaint or initiatory pleading will be dismissed. Will the ground for dismissal be absence of jurisdiction? NO. The absence of certificate on nonforum shopping has nothing to do with the jurisdiction of the court. The ground for the dismissal of the complaint or other initiatory pleading does not provide for a certificate of non-forum shopping is failure to state a cause of action. Will it give any advantage to the defending party if he invokes forum shopping as a ground for dismissal? YES. If there is forum shopping, all the cases will be dismissed; unlike in l pendencia, where one of the cases will be retained. So that he is left with no case to defend at all. If the defending party can demonstrate to the court that forum shopping was deliberately resorted to by the plaintiff, the dismissal of all the cases is with prejudice, where the plaintiff can no longer file a complaint for the recovery of the same claim contained in the various cases. Forum shopping could be violated outright, that is upon the filing of two or more complaints simultaneously or successively against the same party and founded on the same cause. Or it could be violated if the case is already on appeal. Concept of forum shopping could apply at the outset, upon the filing simultaneously or successively of two or more complaints founded on the same cause of action and against the same party, or even if a case has been decided by the trial court, if two or more appeals arebrought by the losing party before the same or different appellate court. If the defending party fails to invoke litis pendencia, the court can still dismiss some of the cases by virtue of the provisions of Rule 9. Litis pendencia is one of the non-waivable defenses. Could we apply this to forum shopping? NO because forum shopping is not a non-waivable ground for dismissal of a case. Vioiolation of the rule on forum shopping will only affect the existence or non-existence of a cause of action, and this ground is a waivable ground under Rule 16. Failure to state a cause of action is really a ground for a motion to dismiss but if it is not so invoked, then the defending party is deemed to have waived this as a ground for dismissal of the case. Joinder of causes of action The opposite of splitting a cause of action is joinder of causes of action. While splitting is prohibited by the Rules, joinder of causes is encouraged by the Rules. The totality rule in BP 129 is quite clear when it says that in ascertaining the jurisdiction of a court when causes of action are joined in one complaint is the totality of all his claims even if these claims arise out of the same or different transactions and even if these claims pertain to the same or different parties. These qualifications are not contained in the totality test embodied in the RC. There is no limitation as to the number of causes that could be joined in one complaint by a plaintiff against the same defendant, except those expressly mentioned now in sec 5. Why does the Rule allow joinder of causes even if they arise out of the same or different transactions? It is for the economy of time. In one complaint a court can decide as many disputes as there presented by the parties in the same action. Joinder of Causes (sec. 5) vs Joinder of Parties (sec. 6) There could be joinder of causes of action even without joinder of parties. So if there is just one plaintiff filing a complaint against one defendant, the plaintiff can allege in one complaint causes of action without limit as to the number of causes that he will be alleging in that complaint. If there is just one plaintiff and one defendant then this limitation cannot conceivably arise. Several causes of action in one complaint, where one cause is not within the jurisdiction of the court Can the plaintiff in one complaint allege as his 1st cause of action a recovery of money in the sum of P500T and then as a 2nd cause accion reinvindicatoria recovery of a piece of land where the assessed value is Php100T, the complaint to be filed with a RTC even if the recovery of title of property is totally unrelated to the recovery of sum of money? YES. the Rules allow the plaintiff to allege as many causes of action as he may have against the same defendant. But if he files a complaint involving the same causes of action and one of the causes is not within the jurisdiction of the court, he can still allege the two causes if the complaint is filed before a RTC. But this same complaint cannot be filed before an inferior court if one of the causes is beyond its jurisdiction. The inferior court will not dismiss the complaint , it will only drop the cause of action which is beyond its jurisdiction. Misjoinder of causes of action- Rule 2, Sec. 6 Supposing that all the causes of action are within the jurisdiction of an inferior court, is it possible that there is misjoinder of causes of action? YES. There could also be a misjoinder of causes even if all the causes are cognizable by an inferior court: if some of the causes follow a special procedure or some of the causes are a part of the enumeration of special civil actions. The penalty for misjoinder of causes is not a dismissal of the whole complaint. It is just that the misjoined causes will have to be separated. The Court will continue hearing the cause of action which falls within its jurisdiction and which follows ordinary procedure. In joinder of causes which involves joinder of parties, the limitation is that the joinder of parties should arise from a situation where the transactions arise out of the same contract or series of contracts. In joinder of parties, the parties involved here are NOT necessarily indispensableparties. The are

Bar Notes on Civil Procedure (Dean J) Zyra C. several causes of action and, therefore, if there are If the creditor files one complaint against debtor
several causes of action there is plurality of parties involved, but the causes of actionarise out of the same transaction or a series of transactions. o Flores vs. Mallari-Philipps. There was a dealer of tires. In one transaction, he sold different tires to A and then in a separate transaction he sold another set of tires to B. Both A and B failed to pay their respective obligations. What the dealer did was to file one complaint against A and B for the recovery of their respective obligations. o Was there proper joinder of parties? NO, because even if the contracts entered into were contracts of sale, the contracts were totally unrelated to one another. The parties misjoined will have to be separated by the court in trying the case.

#1 for the recovery of P500T, will he be precluded later on from filing another complaint for the recovery of the other P500T from d#2? NO, because he has two causes of action. His cause of action against d#1 is entirely different from his cause of action to recover the claim against d#2. So, in this situation, both debtors #1 and #2 are indispensable parties, of course, together with the creditor/plaintiff.

No such thing as non-joinder of causes There is misjoinder of causes but there is no such thing as non-joinder of causes Compulsory joinder of indispensable parties- Rule 3, Sec. 7 There is no non-joinder of causes of action? Well, the reason is that joinder of causes of action is purely permissive on the part of the plaintiff. If the plaintiff does not want to join his causes of action, nobody can forcehim to. He can file one complaint for every cause of action that he may have. But there could be misjoinder of parties, there could be non-joinder of parties because of another procedural principle that is compulsory joinder of indispensable parties. If a litigant is guilty of violating this rule on nonjoinder of indispensable parties, the sanction that could be imposed by the court is dismissal of the complaint. The reason for the dismissal is not violation of compulsory joinder of parties but failure to state a cause of action. Necessary Party-Rule 3, Sec. 8 Where there is a plurality of plaintiffs and defendants, the idea of indispensable parties and necessary parties will come in. o In a contract of sale, if there is just one lender and there is just one borrower, they are both indispensable parties. It is impossible for the lender to file a complaint for recovery of the loan without impleading the borrower. But if there is one lender and there are two borrowers, then , there is a possibility to apply the concept of necessary/proper parties.

Solidary debtors under the Civil Code in relation to indispensable parties In a solidary relationship in the Civil Code, the law says that anyone of the debtors can be compelled to pay the whole bligation. So the plaintiff can file conceivably a complaint against debtor #1 to recover P1M. Under this concept, the creditor remains to be an indispensable party. One of the two solidary debtors will also be an indispensable party because the case cannot be decided unless one of the solidary debtors is impleaded as a defendant. Could we consider debtor #2, who has been left out, as an indispensable party? NO. Even if only one solidary debtor has been impleaded in the complaint, the Civil Code allows recovery of the entirety of the claim against this solidary debtor. Will that make the other solidary debtor that is d#2, as aproper or necessary party? He is neither since the recovery of the whole P1M could be have in the same complaint filed against d#1. Parties in interest- Rule 3, Sec.2 Representatives as Parties-Rule 3, Sec.3 There are other parties mentioned in Rule 3, like representative parties and pro forma or quasiparties. Who are the representative parties? 1. Trustee of an express trust 2. Guardian of a ward 3. Executor or administrator of estate of a deceased Before 1997, it was enough for the plaintiff to implead only the representative party. But under the present rules, it is mandatory for the plaintiff to implead the representative party together with the real party in interest. If there is violation of this rule, the court can compel the plaintiff to amend his complaint so that the identification of the real party in interest could be obtained. If the plaintiff ignores this order, the court could dismiss the complaint. BUT this will be founded on Rule 17 that is dismissal for failure of a party to obey an order of the court or RC- it is a dismissal with prejudice. It will amount to res judicata. Agent, WON a real party-in-interest Both under the Civil Code and the Rules of Court, if the a gent has acted for a principal who is disclosed, the agent is not a real party in interest. But if the agent has acted in his own name and his principal is undisclosed, he is a real party in interest. Supposing the plaintiff files a case against the agent without including the principal, is the complaint defective? YES, because it has not been filed against the real party in interest, there is no cause of action. If the decision becomes final and executory, can the principal be compelled later on to pay the purchase price? NO, because the principal has been impleaded in the complaint. The party who has been impleaded in the complaint is only the agent and the agent is not the real party in interest, the judgment cannot be imposed Can not the court motu propio dismiss a complaint if the court discovers that a real party in interest or an indispensable party has not been impleaded?

Indispensable party Under the Rules, a party is indispensable if his absence will not justify the court from trying and adjudicating the case. If a complaint is filed with a n indispensable party, as we said, the case should be dismissed for failure to state a cause of action. Supposing the court does not dismiss the case for failure to state a cause of action because the defending party does not file the correlative motion, can the court go ahead to try and decide the case? YES. But the decision will never become final and executory. Lender is an indispensable party: He is the only one who could file the complaint for the recovery of the loan; under the Civil Code, they are joint debtors. How many causes of actiondoes the creditor/plaintiff have if his debtors are joint debtors? He has two. There is an application of the principle of joinder of causes of action; at the same time, an application of the rule on joinder of parties.

Bar Notes on Civil Procedure (Dean J) Zyra C.

No. There is always a need for the defending party to invoke a dismissal of a case for failure to state a cause of action. founded on Rule 16 but founded on Rule 17 that is section 3. This time, the dismissal wis prejudice, it is an adjudication upon the merits A dismissal under Rule 16, failure of the complaint to state a cause of action will be a dismissal without prejudice; it will not preclude the plaintiff from filing a similar complaint against the same defendant founded on the same cause.

Failure to state a cause of action-ground for dismissal where an action has been filed, against a person in violation of RULE 3 The term real party in interest is a generic term. An indispensable party and a necessary party is always the real party in interest. BUT a real party in interest is not necessarily an indispensable party, nor a necessary party. Is there a conflict between Sections 7 and 11 of Rule 3? In section 7 of Rule 3, there is a requirement for the compulsory joinder of indispensable parties. The rule uses the word compulsory, meaning to say that if an indispensable party is not impleaded in the civil case that complaint isdefective. Section 11 of Rule 3, provides that non-joinder of parties or misjoinder of parties is not a ground for the dismissal of the case. One section says that indispensable parties must be joined while the other section provides that nonjoinder of parties is not a ground for dismissal. Unwilling co-plaintiff The general assumption is that in a civil case, the plaintiff is the right holder and the defendant is the person who has violated the right of the plaintiff. It is possible that the defending party has an interest that is consistent with the interest of the plaintiff-this is is a case where the plaintiff impleads as a defendant an unwilling co-plaintiff. An unwilling co-plaintiff, which means to say that he has done nothing wrong in so far as the plaintiff is concerned. He is impleaded because cannot be compelled to act as a plaintiff, only to bring him under the jurisdiction of the court All defendants are unwilling so theres no such thing as an unwilling co-defendant. An unwilling co-plaintiff does not have to file a responsive pleading, if he chooses to file an answer he can also file a counterclaim against the plaintiff. There is no preclusion, there is no prohibition from this unwilling co-plaintiff playing the role of a defendant and setting up his own defenses, setting up his claims againstthe plaintiff to the case. Amendment of the pleadings to include an indispensable party If an indispensable party is not impleaded, the defendant can ask for the dismissal of the complaint founded on the ground that the complaint fails to state a cause of action. The court can properly deny a motion to dismiss even if it is convinced that an indispensable party has not been impleaded. Under Rule 16 when a motion to dismiss is submitted to the court for resolution, there are three options given to the court: 1. grant the motion 2. deny the notion 3. or require an amendment to the pleading

Complaint cannot be dismissed for non-joinder of necessary parties Compulsory joinder is limited to indispensable parties. The rule does not tell us that when it comes to a necessary party the joinder is compulsory. So even if a necessary party is not impleaded the complaint cannot be dismissed. The reason is section 11, non-joinder of parties is not a ground for dismissal. But there is a special requirement when it comes to the non-inclusion of a necessary party. The rule says that if a complaint is filed without impleading a necessary party, the pleader must state in the complaint who the necessary party is and why he has not been impleaded. It isnow up to the court to determine WON to order the inclusion of that necessary party. If the court so orders the inclusion of the necessary party, but the plaintiff disobeys the order of the court, can the defendant now resort to Rule 17,that is ask for the dismissal of the complaint because of the failure of the plaintiff to obey the order of the court? NO. In Rule 3 itself, there is already a sanction provided for disobedience to an order of the court for the inclusion of a necessary party, which is that the claim against the necessary party is deemed waived. There is just a waiver of a claim against the necessary party. But the complaint itself will not be dismissed. The complaint itself will be tried and decided by the court. Minor or incompetent persons- Rule 3, Sec.5 If a minor is impleaded is a real party in interest, the complaint should be accompanied by a prayeror a motion for the appointment of a guardian ad litem. A guardian ad litem, which is an incident or collateral to the main action itself is something that even inferior courts possess the authority to do so. Class suit-Rule 3, Sec. 12 vs. Sec.6 A situation in Rule 3 that has some similarity to joinder of parties thatis permissive joinder of parties in Rule 6 is a provision on a class suit. In permissive joinder of parties we are assuming that there are two or more causes of action that are joined in one complaint and there are plural parties who could claim or defend these various causes of action. In a class suit we also have plural parties. In fact the law requires that the parties are so numerous that it is not practicable to bring them all before the court. But in a class suit there is just one cause of action. There is community of interest among several persons who are so numerous that it is not practicable to bring them all before the court. o The owner of a piece of land visited his property one morning only to discover that his property has been possessed by almost one thousand families. There are squatters. Can the owner file a class suit for unlawful detainer or forcible entry or accion publiciana against a number of the squatter families? If he files one complaint against only a number of the squatter families that is he will sue the squatter families by way of a class suit, he will not be impleading all the squatter families, because in a

So in this situation the court can adopt the third option, deny the motion but require the amendment to the pleading, so that the indispensable party would be impleaded.

Rule 17 as another ground for dismissal vs. Rule 16 Failure to state a cause of action If the court requires that the indispensable party be impleaded but still the plaintiff ignores the order of the court, what can the adverse party do? The adverse party can now resort to Rule 17 that is file once more a motion to dismiss this time not

Bar Notes on Civil Procedure (Dean J) Zyra C.

class suit only a number ofthe class can be sued or can sue. He may (1) file one thousand complaints against each individual family or (2) he can file one complaint against one thousand defendants that is permissive joinder parties. award is in the alternative either deliver the property or to pay the value of the property. Can there be plaintiffs in the alternative? There is nothing in the rules so far which expressly or by implication allows the filing of the complaint in the alternative. That is a situation where a right has been violated but we cannot be sure at the time of the filing of the complaint who owns that right and therefore who can file the complaint. Given the principle that procedural laws should be liberally construed, it seems that we can also allow alternative plaintiffs although this is really debatable. Unknown identity or name of defendant- Rule 3, Sec. 14 Can an association that has no personality, it is not incorporated, it is not a corporation, it is not a partnership, can it file a complaint in court? NO. Can it be sued? Yes. So they can be impleaded as defendants but they cannot be named as plaintiffs in a case. The Rules also allow a defendant to be sued even if his identity is not known. So a defendant could be sued as an unknown owner. This usually applies to a case of replevin, thats recovery of a possession of personal property. There is a chance that when the sheriff goes to this defendant, the defendant is no longer in possession of the property, so property can no longer be confiscated. To avoid this situation where the sheriff will not be able to confiscate the property from the known, defendant, the plaintiff will usually implead at least two defendants: the first possessor of the property or the second possessor if known to the plaintiff and then a third defendant called John Doe; whoever is in possession Any plaintiff who goes to court should be able to identify himself. Death of a party; duty of counsel-Rule 3, Sec. 16 Incompetency or Incapacity In the case of the death of a plaintiff and in a case of death of a defendant, it is the duty of their counsel to notify thecourt about these developments. Extinguishment of agency. If the court is so informed about the death of a litigant, can the court nonetheless proceed with the trial? NO. if a court receives information that any one of the litigants has died, the court should require that any one of the heirs of the deceased litigant must be substituted, must act as a substitute litigant, that is the heirs should be made as substitute defendant. The person so directed to appear as a substitute litigant has the prerogative to accept or not to accept the role as a substitute litigant. If none of the heirs of the deceased litigant accepts the role as such, what can the court do? This time the court can require the adverse party to secure the appointment of an executor or administrator that is in the appropriate settlement proceedings. Can the court issue an order requiring the executor or administrator to act as a substitute litigant? YES. He cannot refuse to accept the designation because that is one of the duties of an executor or administrator. He must represent the estate of the deceased person. The general rule when it comes to civil cases where it is the defendant who dies is that the case is not affected at all. The case will not be dismissed. It will continue to be tried and decided by the court. In fact if there is a decision rendered by the trial court and there is an appeal, the appeal will alsocontinue that is until the entry of judgment.

Community of interests-first essential requirement in a class suit According to SC the situation does not meet the first essential requirement. There is no community interest among the several defendants because each squatter family is interested only in protecting the area that he actually occupies. So the interest of squatter number one is different from the interest of squatter number two because each of these families are occupying their own individualportions of that property, so there is no community interest in this situation. To SC, this could be a proper instance where joint permissive joinder of parties could be held because although the interests of the squatters differ from one another there is acommon question of law or fact that will be presented in the case. Supposing the lawyer of the plaintiff suggests that the plaintiff should file one thousand complaints that is one complaint for each squatter family, is that also feasible? YES. Will he be required to be attending one thousand trials at any given time? NO. The lawyer can easily avail of the rule on consolidation of cases.

Case in point: Oposa vs. Factoran A community filed a class suit for the protection of their environment. Atty. Oposa cited as members of the class, minors and even as those who were yet unborn. SC allowed this class suit to be instituted, saying that it is only essential that there must be community of interests among the members of a class. Derivative suit; intervention is a matter of right in a class suit; Alternative Defendants-Rule 3, Sec.13 A derivative suit-this is one instance where intervention is a matter of right. Intervention in R 19 is a matter of discretion on the part of the court. The court may or may not allow a petition for intervention, but when it comes to a class suit any member of the class has the right to intervene in other words the court, the trial court is not given the discretion whether or not to admit an intervention that is submitted by a member of a class when the action is considered as a class suit. In Rule 3 also, we meet the terms alternative defendants. The situation is simply on e where the plaintiff has a right that has been violated but at the time of the filing of the complaint he is not sure as to who, between two or more persons has violated the right and who should be held liable for the violation. Could a decision of a court be in the alternative? Since Rule 3 allows defendants to be sued in the alternative, can the plaintiff also file a complaint with causes of action in the alternative? YES. Rule 2, which is section 5 it is clearly provided that in one complaint several causes of action may joined in the alternative or otherwise. If there could be alternative causes of action, could there be alternative defenses? YES. This is expressly allowed in Rule 8, there could be alternative causes and defenses. Could a decision of the court be in the alternative? YES. The last section of Rule 60 allows a court to render a judgment in the alternative, that is the

Bar Notes on Civil Procedure (Dean J) Zyra C.

The only exception recognized in Rule 3 is when the action is purely personal in character in which case the death of the defendant will render a complaint moot and academic. parties which fixes the venue of conflict between the contracting parties. BUT not all agreements concerning venue will automatically govern the relationship between the parties. There are essential elements for the validity and enforceability of an agreement on venue. If not complied, such agreement may be disregarded by plaintiff 1. The agreement must be in writing and entered into before the case is filed 2. It must have a character of exclusivity. The word exclusive need not be used exactly.

Action on contractual money claims in relation to Rules 39, 86 and 88-Rule 3, Sec. 20 If the plaintiff eventually prevails that is the decision is rendered in favor ofthe plaintiff, and the decision becomes final and executory, can the plaintiffcreditor avail of Rule 39? Can the creditor compel the estate of the deceased defendant through the executor or administrator to pay the obligation, or if thereis no payment, can the plaintiff-creditor levy on properties of the deceased person? NO. The claim of the creditor supported by a final and executory judgment will simply be submitted to the settlement court. But it cannot be executed, meaning to say that the creditor cannot levy on properties of the deceased judgment debtor for the purpose of satisfying his claim. The only instance where there could be a sale at public auction of properties of the deceased judgment obligor is when the death of the defendant comes after a levy has been made. If a levy has been made, that is, the assumption is of course the judgment has become final andexecutory. But if no levy has been carried out before the death then the claim of the creditor even if it is supported by a final and executory judgment will not be paid. But if the judgment is for the recovery of property real or personal, the judgment will still be executed notwithstanding the death of the defendant. The earlier applies only when the judgment is for the payment of money arising from a contract. Indigent party-Rule 3, Sec. 21 An indigent litigant gives us the first situation where an ex parte motionis expressly recognized by the rules, as an exception to the rule on motions that is Rule 15. The general rule on motions is that a motion should not be heard ex parte. When it comes to an indigent litigant, the rule expressly allows that a motion presented by a litigant to be allowed to try the case as an indigent could be submitted to the court through an ex parte motion. At present, even if a person is a salaried employee he could still be considered as an indigent litigant. The only qualification that is now contained in the rule is that the litigant can prove that he cannot support himself and his family. It is no longer required that a person should submit affidavits just like in the past, showing he does not own properties, that he has no means of income. But the declaration by a court that a litigant may be considered as an indigent litigant is purely interlocutory. It could be assailed later on in the course of the trial by an adverse party. RULE 4- VENUE No difference between venue and jurisdiction in criminal case, only civil. Venue is procedural whereas jurisdiction is substantive law. Since venue is purely procedural it can be waived by the parties unlike jurisdiction over the subject matter which generally is not waivable. Since jurisdiction is part of substantive law it is governed or covered by BP 129 and the amendatory statutes. When Rule is NOT APPLICABLE :Rule 4, Sec.4(b) Since, venue is a primarily contractual matter, when asked to determine the proper venue of a case, do not immediately go to Rule 4. Take note of the presence or absence of an agreement between the

Such an agreement, having the said elements is entered into after the case is filed...is it void? NO. The parties, even after the commencement of the case or during the pendency of the case, can still enter validly into an agreement concerning venue. There is no provision in Rule 4 prohobiting it. It only tells us is that an agreement concerning venue in writing before the commencement of action and has the feature of exclusivity will govern the relationship of the parties BUT the court cannot be forced to enforce this agreement. Once a case is filed in court, the court will continue to have authority to try and decide the case notwithstanding any agreement on exclusive venue that the parties will enter into later on. SO, the agreement may or may not be followed by the court. IF it is followed by the court and the agreement is to the effect that the locality fixed in the agreement is not the place where the courts holds trial, the only alternative on the part of the court is to dismiss the complaint. If the agreement does not have the feature of exclusivity, which means to say that the plaintiff can ignore the agreement and apply the provisions of Rule 4...Venue will be determined on WON action is a real action or a personal action. Venue of Real Actions; Venue vs. Jurisdiction (Rule 4, Sec.1) When it comes to the distinction between venue and jurisdiction, careful in answering questions as to WON the defect is jurisdictional or only one of improper venue. o A case of unlawful detainer involving a piece of land located in Manila is filed before the inferior court of Tarlac. Does the court have jurisdiction? YES. Since this involves a question of jurisdiction, forget about Rule 4. Resort to BP 129, where a case of unlawful detainer or forcible entry is exclusively cognizable by an inferior court. It does not say a MTC of certain locality has exclusive jurisdiction over actions of unlawful detainer where the property is located in that locality. It simply says a case of unlawful detainer is cognizable by an inferior court. Of course, assuming that there is no written agreement on the exclusive venue. o A case of unlawful detainer involving a piece of land located in Manila. The complaint is filed here in Manila but the complaint is submitted to the RTC of Manila. Is venue properly laid? YES, because the land is in Manila and the court sits in Manila. o Does it have jurisdiction? NO, because under BP 129, inferior courts have original and exclusive jurisdiction over unlawful detainer. o If it is filed before RTC if QC, is venue properly laid? NO. Venue is not properly laid because the land is in Manila but the court before which the case has been filed is not situated in Manila. So, venue does not refer to a

Bar Notes on Civil Procedure (Dean J) Zyra C.

court, but to a locality, a place where the action should be filed. No Rule on venue in the SC & CA There is nothing mentioned in Rule 4 about venue with respect to the other courts. Venue is limited to real and personal actions that are filed before trial courts. There is nothing mentioned about venue concerning the SC and the CA they are also courts of original jurisdiction. There is no rule on venue with regards to them, although they are courts of original jurisdiction because, there is only one SC and one CA, which are both based in manila. So, the features of trial courts in diff regions do not apply when it comes to them. Agreement on Venue, When Void Venue of Personal Actions- Rule 4, Sec.2 Sweet Lines vs. Teves. There was an agreement concerning venue but the SC set it aside because if enforced, it will cause inconvenience to the plaintiffs and will deprive them of the right to enforce their claim against the shipping company. 1. When it comes to real actions, the law is quite clear in saying that for purposes of venue, the action should be filed in the locality where the property is situated or a portion thereof is situated. If the realty is situated in two places, plaintiff is given a choice. Rule does not require that a greater portion should be located in the place where the complaint is filed. The venue in real actions is the locality or any portion thereof is situated, however small that portion is. the classification of action into such is not founded on their privity to real property or contract. The classification is founded on another basis that is the binding effect of the judgment. RULE 5- UNIFORM PROCEDURE IN TRIAL COURTS Barangay Courts They are not courts of justice. It is not really a part of the judicial system. It is part of the executive department. There is only one instance where a barangay court can possess an adjudicatory power: that is when the parties agree to submit their dispute to it for arbitration. Barangay courts are allowed to compel the plaintiff to pay a filing fee, just like any other court. Lawyers are precluded from appearing before barangay court. Generally, all cases triable by a RTC and an inferior court, as long as the parties are natural persons and the parties are residents of the same city or municipality should first undergo prior barangay conciliation, before a complaint could be properly filed in court. OTHERWISE, it may be dismissed, because of failure to state a cause of action. Failure to satisfy prior barangay conciliation has nothing to do with the jurisdiction of the court. It is only a condition precedent to the accrual of a cause of action. Is the requirement on prior barangay conciliation a condition precedent to cases that are cognizable only by an inferior court or is this condition precedent applicable to cases cognizable by the RTC? YES. The Local Government Code does not make a distinction. How about cases that is cognizable by the CA and SC? There is nothing mentioned in the Local Government Code about it. And caes cognizable by them fall within the expected instances. Habeas corpus is exempted from the coverage of prior barangay conciliation. A petition for certiorari or prohibition or mandamus will always involve a govt. official or office who has acted without jurisdiction, in excess of jurisdiction or with grave abuse of discretion and that is one of the expected instances. Remedy to avoid appearing before a barangay court is for the plaintiff to incorporate in his complaint a motion or a petition asking for a provisional remedy (prayer for preliminary attachment, preliminary injunction, support pendente lite/replevin) Rules on venue when it comes to barangay courts When it comes to venue in barangay courts, the venue is the place where the respondent or defendant resides. Rule 4 is not followed, where plaintiff is given the choice. Also take into account for purposes of venue the location of the property that is involved in the dispute. Since the barangay court is not an adjudicatory body, it does not have authority to compel the parties to agree to a settlement. If the parties cannot settle their differences amicably there is really nothing which the barangay court can do. All that the barangay court will do is to issue a certification that the dispute has undergone conciliation but the parties could not arrive at a settlement. These parties could also submit a compromise before the barangay court and such compromise agreement will be the law between the contestants unless this is

2. When it comes to personal actions, it is the plaintiff

who is given the choice. It is either his place of residence or that of the residence of the defendant. If there are several plaintiffs or defendants, the place of residence of the principal plaintiff or defendant

Venue of actions in case of Non-Resident DEFENDANTS-Rule 4, Sec.3 Two elements must concur: 1. The defendant does not reside in the Philippines, 2. And he is not found in the Philippines.

It is possible that he is staying temporarily in the Philippines in which case in this sector, will not apply. The court will not be able to acquire jurisdiction over his person.

There are only two (2) instances where such case can be filed 1. When the civil action pertains to the civil status of the plaintiff 2. When it involves a property of the non-resident defendant in the Philippines. Where PLAINTIFF is a non-resident and cannot be found in Phils There will be no problem on venue or jurisdiction at all. He voluntarily submits himself to the jurisdiction of the court, if he files a complaint. Also, when it comes to venue, all that needs to be determined is WON the action is real or personal. Rules on Venue vis-a-vis Actions In Rem and In Personam Still Rule 4. All that needs to be done is ascertain further if they are Real or Personal. The only reason why Rule 4 does not mention in rem or in personam as the basis for fixing venue is that

Bar Notes on Civil Procedure (Dean J) Zyra C.

repudiated within the period fixed by the rules, by the Local Government Code. Compromise Agreement must be in writing If there is repudiation, barangay court will simply submit a certification that plaintiff is now free to file a complaint in court. Prohibited Pleadings: Trial Court may Still Dismiss the case under the grounds enumerated in Rule 16 Since a motion to dismiss, generally, is a prohibited motion in cases governed by SP, does it mean to say that Rule 16 is not applicable generally to a case that is governed by SP? No. Even if the filing of a motion to dismiss is prohibited under SP, this will not deter the inferior court from applying the provisions of rule 16. If cases are governed by SP, the court can dismiss the case outright for any of the grounds in Rule 16. Difference in the Application of R16 to Ordinary Procedure & Summary Procedure Only diff between the applications of R16 to a case governed by SP is that when the case is governed by ordinary procedure, generally a motion to dismiss is required. In a case governed by SP, the court can motu propio dismiss the complaint as long as any of the grounds for dismissal of a case under R16 is apparent from the allegations contained in the pleading. If the court neglects to dismiss the case, the defendant can still avail of the grounds for dismissal under R16, even if these grounds do not involve absence of jurisdiction over the subject matter or failure to comply with prior barangay conciliation. What SP prohibits is the filing of a motion to dismiss. The defendant can set up any of the grounds for a motion to dismiss by filing an answer with an affirmative defense, which is not prohibited in SP. Ant of the grounds for a motion to dismiss in R16 is available to a defending party as an affirmative defense. Summons issued in OP vs. In SP It is up to the trial court to determine initially whether a particular action is governed by SP. If yes, same process in ordinary civil cases is followed. The court will issuea summons that will be served upon the defendant. Diff bet summons issued in SP and in regular procedure: 1. Summons in SP - requires the defendant to file an answer within a non-extendible period of 10 days; - there is no threat that is given to the defendant that if he does not answer, he will be declared in default and judgment by default will be taken against him -number of pleadings that may be filed; only the complaint, the answer, a compulsory counterclaim and cross-claim are allowed 2. Summons in RP -require the defendant to file an answer within 15 days - does not use the phrase non-extendible period, the period to answer in regular procedure could be extended by the court.-there is always a threat contained in the summons. The threat being that if the defendant does not answer within the reglementary period, he could be declared in default and that a judgment by default could be rendered against him by the court. -All the pleadings enumerated in Rule 6 could be availed of Why does not the summons in SP contain a threat? Well, in the enumeration of the prohibited pleadings and motions in SP, a motion todeclare the defendant in default is prohibited.

Authority of the Barangay Court to Dismiss a Complaint Res Judicata Peculiar provision: If a plaintiff files a complaint before a barangay court, but later on he does not appear during the conciliation proceeding, the barangay court has the authority to dismiss the complaint and the dismissal by the barangay court operates as a res judicata that is, the complaint can no longer be filed in the court by the plaintiff. If there is a compromise agreement, there is no more need for the parties to go to court to enforce it. Within a period of six months the barangay court has a right to execute the judgment. And in doing so, it can make use of the provisions of Rule 39. If in the compromise agreement, the respondent admits owing plaintiff P100T payable on installment and then R defaults in complying with his obl, P can ask the barangay court to execute the judgment or the compromise agreement. That is as long as sixmonth period has not yet expired. In executing the judgment, the barangay captain, is given the authority to levy on PERSONAL properties of the defendant, pursuant to Rule 39. Barangay court does not have power to levy on real properties. Execution of the Compromise Agreement beyond the 6th mo. Period: Adjucatory Powers of Barangay Court Supposing that there is no execution within sixmonth period, can the compromise agreement be still enforced? YES, BUT this time its enforcement cannot be held before the barangay court, and should now be given to the inferior court of that municipality, the local court. Can anyone of the parties back out of that written agreement to constitute the barangay court as an adjudicatory body? YES. All that anyoneof the contestant needs to do is to repudiate that agreement. If there is repudiation, the barangay court ceases to possess adjudicatory powers. If there is no repudiation, then it can determine the rights and obligations of the parties in that dispute. The decision, if not repudiated will becomes a final and executory judgment. But for the purpose of enforcing this, SC ruled that there must be a petition for the enforcement of a decision to be filed before a local court. So, even if the amount involved in the dispute is one (1) million pesos, for the purpose of enforcing the judgment, the petition must be filed before inferior court.. SUMMARY PROCEDURE (SP) Although there is now uniformity in procedure before RTC and inferior courts, there is a difference when it comes to cases that are governed by SP. In November 2002, the Rules on SP were amended by the SC in the sense that a civil action which involves not more than P100T outside Metro Manila, and in Metro Manila P200,000 will be covered by SP. Unlawful Detainer and Forcible entry are still covered by SP. Family Courts & RTCs also try certain cases ff SP Not only Inferior Courts follow SP. But also cases triable in RTC or by a Family Court which under the Family Code.

(Memorize Prohibited Pleadings and Motions in SP) SP in Civil Cases vs. SP in Criminal Cases

Bar Notes on Civil Procedure (Dean J) Zyra C.

1. SP covers both civil and criminal cases. SP applicable to criminal cases - Principal distinction: there is a right to crossexamine the witnesses. - The testimony of the witnesses are contained in an affidavit, but the affidavits will take the place of their testimony on direct examination, and then the court will require these witnesses to attend a trial for the purpose of cross-examination of these witnesses Certification against non-forum shopping, Rule 7, Sec. 6 SC: Who may sign the certification on non-forum shopping? A counsel may if he is provided with a special authority to do so by the client. Rules concerning this certification on nonforumshopping are strictly applied. Any defect regarding this cannot be amended. Complaint Rule 6, Sec. 3 Conditions precedent, Rule 8, Sec. 4 1st Pleading: The complaint. Contains the cause of action, excluding evidentiary matters. Ultimate facts that should be alleged in the complaint? 1. The names of the parties 2. Their respective residence 3. The right of the plaintif 4. The violation by the defendant 5. An allegation concerning the compliance with all conditions precedent. It is NOT enough that the plaintiff in his complaint will simply allege that all conditions precedent have been satisfied? He should enumerate what these conditions precedent are. Capacity, Rule 8, Sec. 4 The capacity to sue also of the plaintiff must be averred with particularity. Artificial persons like a corporation, or a partnership: There must be an allegation that they possess personality to do business in the Philippines. Without these particulars in the complaint, the allegation concerning the capacity to sue is not satisfied, the party may be required to amend the pleading, or the court may even dismiss the complaint for inadequacy of the allegations. Ultimate Facts: No sanction for alleging evidentiary matters The rules preclude evidentiary matters from being alleged in thecomplaint or in the pleading, BUT there is no sanction or penalty at all imposed by the court if these evidentiary matters are so alleged. In cases governed by SP, it is advisable to include in the complaint allegations concerning evidentiary matters, because there is no trial that is held by the court in cases governed by SP. Relief; Rule 7; Sec.2 The complaint must also contain a relief; that is the relief sought by the plaintiff. BUT even if the complaint does not contain a paragraph concerning the relief, the court cannot dismiss the complaint on this basis. The absence of a prayer or a relief that is sought by the plaintiff is not a substantial defect of the complaint. Pleading allowed; Claim Pleadings & Responsive Pleadings Rule 6, Sec. 2 1st Classification of Pleadings 1. Claim Pleadings - pleadings that could allege a claim or a cause of action 2. Responsive Pleadings -Answer & Reply. Reply, is not available to defending party. It is available only to the plaintiff or to the party who has submitted a claim. To defendant, he only has one responsive pleading to set up his defenses: Answer.He does not have a choice at all since his choice is limited. He should always file an answer to a claim pleading.

2. SP applicable to civil cases The parties, and even the court, are not given the privilege to cross-examine the witnesses. All that the parties need to do is to submit the affidavits of witnesses and the respective position papers. And thereafter, the case is submitted for decision. Similarities: They have a preliminary conference, which is akin to the pre-trial in ordinary procedure. It is also mandatory. But the SC has ruled that if the trial court fails to conduct a preliminary conference, the proceedings taken thereafter are not necessarily void. A party may be considered to have waived this mandatory preliminary conference if he fails to object to its absence, or he fails to object to its absence OR he fails to object to failure of the trial court to conduct a preliminary conference. RULE 6- KINDS OF PLEADINGS Availability of Pleadings under Rule 6 GRule: The pleadings enumerated in Rule 6 are available in all ordinary c.actions and also special ca, which are governed by OP. Not all these pleadings are available in an SP, some of them are expressly prohibited by it. May there be civil actions or special actions where the availability of the pleadings mentioned in Rule 6, is not given to the parties? Exception to General Rule: Rule 67, that is, in a petition or complaint for expropriation proceedings, where a counter-claim, a cross-claim, and a third party complaint are expressly prohibited. Pleadings defined, Rule 8, Sec. 1: In general Pleadings- a written statement or allegations of the cause or defenses submitted to the court for judgment. The pleadings must contain allegations presented in methodical and logical form. That is, in concise and direct language, stating the cause of action or defenses. Pleader should not relate a story to the court. He should divide the pleadings into paragraphs, to make it short and simple. The pleading must be dated. The pleading must also be signed either by the lawyer, or by his client, or both of them. When it is the lawyer who signs the pleading, he submits a certification that he has read the pleading, there are enough grounds to support it, and that it is not intended to delay the adjudication of the dispute. When it is a client who signs the pleading, the client does not make this certification. Verification- Section 4 General Rule: Pleadings do not have to be verified. Verification is required only if the rules or the law requires it, Substantial defect, not Formal (will not affect jurisdiction of the court)- If the law requires a pleading to be verified, but there is no verification made by the client Also, an unsigned pleadingproduces no legal effect whatsoever.

Bar Notes on Civil Procedure (Dean J) Zyra C.

Initiatory pleadings & Non-initiatory pleadingsbasis; Existence of a Certificate of non-forum and Requirement of payment of docket fees 2nd Classification of Pleadings: 1. Initiatory Pleadings -there should always be a certification on non-forum shopping, otherwise it will be dismissed -Docket fees must be paid, otherwise, the court will not acquire jurisdiction to hear and decide the claim contained in this initiatory pleading -Ex. Permissive Counterclaim 2. Non-initiatory Pleadings -no need to affix or to attach a CNFS. So if the pleading filed by a litigant is an answer, which is nota non-initiatory pleading, he does not have to embody in his answer a CNFS. - ex. Answer like a Compulsory Counterclaim Supposing the defendant, instead of filing an answer, files a reply to the complaint, will it cause prejudice to the defendant? SC: If the defendant calls responsive pleading to the complaint erroneously as a reply, but the allegation contained in that document is defenses set-up by him, the court may ignore the violation because laws on procedure are liberally construed. The exclusive use of the third mode could be prejudicial to the interest of the defending party. The prejudice is in the form of a judicial admission of the allegations contained in the complaint which are denied for lack of knowledge or information. Ex. Paragraph (what is alleged) 1. Name and residence of the plaintiff and the defendant 2. The right belonging to the plaintiff. 3. Violation by the defendant of the right of the plaintiff. 4. That barangay conciliation has been undergone, but the parties were not able to settle there differences amicably. 5. Claim for the payment of attorneys fees. This shows that the defendant is not candid; he is not serious in dealing with the court. If the defendant specifically denies paragraph 1 of the complaint for lack of knowledge or information,in effect he is telling the court that he does not know his name, he does not even know his residence. SC: the defending party must use the third mode of specific denial in good faith. What are the allegations, which could be specifically denied for lack of knowledge or information? An allegation in the complaint where the plaintiff alleges that he has contracted to pay his lawyer attorneys fees (as well as plaintiffs claim for damages). That is expected to be unknown to the defendant. Supposing that in the answer, the defendant simply states that he specifically denies a certain paragraph of the complaint. Will this be a specific denial? NO! This is a general denial, it will not be an adequate negative defense because what the rule requires, is that after thespecific denial, the defendant must state the facts upon which he should rely upon in his defense. Why is it wrong for the defendant to make a general denial of the allegations contained in the complaint? If he makes a general denial, and the law considers the allegations in he complaint, as having been judicially admitted, then the court will have nothing to try at all. Instead, the court upon motion of theplaintiff can simply render a judgment on the pleadings. And a judgment on the pleadings will always be favorable to the plaintiff. So that is the adverse consequence of an answer, which contains a negative defense but does not satisfy the requirements of a specific denial in Rule 8.

Answer: Rule 6, Sec. 4 The answer, as a responsive pleading, is designed to contain the defenses to the claim contained in the complaint. Two defenses that could be alleged in an answer: Negative, Affirmative, or both. A defendant should knowhow a negative defense must be presented in court, because if this is not in accordance with the rules, he is going to lose the case. A negative defense, pertains to specific denial General Denial is not allowed by the rules and the sanction for using this is that it will be considered as an admission of the allegations in the complaint. A judicial admission is conclusive upon the admitter. It cannot be rebutted, as a general rule, , unless the pleader is able to prove that he has admitted a mistake in making that allegation. Specific Denial, Rule 8, Sec. 10 Three modes by which a specific denial should be made by the defending party: 1. To deny each and every allegation in the complaint and as far as practicable, give the reasons upon which he relies for his defense and the reasons why he is making that denial. 2. Part denial and part admission. 3. Specific denial for lack of knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the complaint. The defending party is expected to make use of any or some or all of these modes of denial. The rule does not expressly require that any of the modes should be used first. The defending party is given the choice as to which mode of specific denial which his answer could use. Repercussions of using the 3rd mode of Specific Denial No order of priority as to the mode of denial, BUT according to SC, use of the third mode could lead to an admission on the part of the defendant. The third mode is the most convenient way to make a specific denial because all that the defendant needs to state in his answer is that he is denying each and every paragraph in the complaint because he has no knowledge or information concerning the truth or falsity of these allegations.

Concept of Negative Pregnant Principle of pregnant means silence, which is suggestive of an unexpressed feeling. So, if if there is a negative pregnant, the defendant is really silent as to WON he is denying or admitting the allegations in the pleading, which is not allowed by the rules. He should state expressly and firmly WON he is specifically denying certain allegations in the complaint. He should not leave the matter to the court and let the court guess whether or not he is denying or admitting certain allegations. That is the duty of the defending party. The third mode of specific denial, that is denial for lack of knowledge or information could be consideredas a negative pregnant, which will result again to a judicial admission of the allegations contained in the pleading. Affirmative Defense- Rule 6, Sec. 5b Affirmative defense- admits the allegations in the complaint hypothetically. But the defendant sets up new matters which will avoid his liability in favor the claimant. Unlike in a negative defense, which denies the allegations in the complaint, an affirmative defense admits the allegations in the complaint.

Bar Notes on Civil Procedure (Dean J) Zyra C.

BUT the defendant still tells the court that although the allegations in the complaint are true, he is still not liable for the claim contained in the complaint. jurisdiction of the inferior court, the counterclaim ceases to be compulsory and is considered as permissive. Therefore, the plaintiff can file a motion to dismiss the counterclaim for lack of jurisdiction. What is the basis in making a fine distinction between a compulsory counterclaim filed before a RTC, and that before an inferior court, when the only difference is the amount involved? Both counterclaims are related to the subject matter of the complaint. The reason given by the SC is that an inferior court is a court of limited jurisdiction.

Defenses & Objections not Pleaded: Rule 9, Sec. 1 Can the defendant, make use of both a negative and an affirmative defense? Inconsistent defenses... YES! In fact, he should submit all defenses available to him in his answer because if he fails to allege a defense in his answer, he is deemed to have waived these defenses. Even if a negative defense is inconsistent with an affirmative defense, the defendant must incorporate all the defenses available to him, at the time of the filing of the answer. Otherwise, the defenses that are left out are deemed waived. Meaning to say that these defenses can no longer be proven during the trial of the case. Action or Defense based on a Document: Rule 8, Sec. 8 An actionable document is that which is the basis of a claim or a defense. It is available to the plaintiff and defendant. Two ways by which an actionable document can be alleged. Copy the original via xerox and attach a copy OR copy verbatim the contents of the document in his complaint. How to contest such Documents: Rule 8, Sec. 8 When it comes to the defending party who is confronted with a complaint where there is an actionable doc, the law requires that there must be a specific denial under oath If the defendant neglects to comply with this requirement, the genuineness and due execution of the actionable doc are deemed admitted. The admission here is judicial, which is conclusive upon the defendant. He can no longer rebut the judicial admission. There are two exceptions mentioned in the rules: 1. If in the actionable doc, it does not appear that the defendant is a party, or if the plaintiff refuses to obey an order for the production of the original of that doc, defendant is excused from the consequences of a failure to specifically deny under oath Counterclaim: Rule 6, Sec. 6 Compulsory Counterclaim Sec. 7 The counter claim pleading is a counterclaim, which is any claim, which a defending party has against the adverse party. It need not be related to the subject matter of the complaint. A counterclaim, again, may be compulsory before a RTC, but the same will only be a permissive counterclaim before an inferior court. Usual Ex. Defendant alleges that the filling of the complaint is malicious and without basis, and such has compelled him to retain the services of counsel, and he has agreed to pay his counself a certain amount. When amount involved in a complsory counterclaim is below the jurisdictional amount cognizable by the RTC YES, the compulsory counterclaim is only incidental. It is on ancillary to the subject matter of the complaint. When amount involved in compulsory counterclaim is beyond the jurisdiction amount cognizable by inferior court Remember, accion reinvidicatoria is not always cognizable before the RTC. It depends on the assessed value of the property involved. If the amount sought to be recovered in a compulsory counterclaim goes beyond the

Cross-claim: Counterclaim vs. Cross-claim: Principle of Ancillary Jurisdiction Difference between a counterclaim and cross-claim: 1. A cross-claim is a claim by one party against a coparty. There must be plurality of defendants, where one of them files a cross-claim against a codefendant. -the subject may be related to the subject matter of the complaint -the amount sought to be recovered from the crossdefendant will not affect the jurisdiction of the court 2. A counterclaim is that which is totally unrelated to the subject matter of the complaint. A filed a complaint against B and C for the recovery of P700T. B can file a cross-claim against C for the recovery of the entirety of the P700T or he can file a cross-claim against C for the recovery only of P100T. In the latter case, If the cross-claim only for the recovery of P100T, although under BP 129, it is clearly provided that a claim for this amount is exclusively cognizable by an inferior court... The reason is that across-claim is only ancillary to the complaint. This is an application of the ancillary jurisdiction of a RTC. All ancillary claims will fall within the jurisdiction of the court as long as the court has jurisdiction over the subject matter of the complaint.

Third (fourth, etc.) Party Complaint: Rule 6, Sec. 11 Third party complaint, which is a claim of a defending party against a stranger to the case, for contribution, indemnity, subrogation or any other relief in respect to the plaintiffs claim. Just like in cross-claim, the subject matter of the third party complaint must be related to the sm of the complaint General Rule: The filing of a third party complaint must be with leave of court. That is not a requisite when it comes to the filing of other claim pleadings. This is necessary because the reason is that a third party complaint seeks to bring to the action a stranger to the case. The stranger is not yet a litigant, and the only way by which the court can acquire jurisdiction over the person of the stranger is for the court to issue summons later on. So, the jurisdiction of a court does not depend on the amount which the third party plaintiff seeks to recover. Even if this amount seeks to recover is below the jurisdiction of the RTC, it will have authority to hear and decide the third party complaint. There is no limitation as to the number of these complaints that could be filed in one case. So there could be a 5th, 6th, 7th party complaint as long as the subject matter of this pleading is related to the subject matter of the original complaint. Reply; Rule 6, Sec.10 The most useless pleading is, the Reply which is a responsive pleading. Even if a reply is not filed, the new matters alleged in the answer is deemed controverted.

Bar Notes on Civil Procedure (Dean J) Zyra C.

So the plaintiff does not have to file a reply to an answer even if the answer contains new matters in avoidance of the claim of the plaintiff. The absence of the reply by the plaintiff means that the he has controverted the assertions of the defendant. Allegations concerning unliquidated damages deemed controverted even if theres no specific denial Only allegations concerning unliquidated damages are deemed controverted even if there is no specific denial. So when there is an allegation concerning liquidated damages, there must be a specific denial, otherwise the allegation concerning this liquidated damages are deemed admitted. Non-waivable defenses They are called non-waivable defenses because even if the adverse party fails to set these up as defenses, the court can always order the dismissal of the complaint as long as it is convinced that it does not have jurisdiction over the subject matter, or prescription has set in , or there is res judicata, or there is litis pendencia. Non-waivable defenses in Civil cases vs. Criminal cases There are non-waivable defenses in a criminal case, in Rule 117 in Criminal Procedure. The non-waivable defen ses in a criminal case are when the allegations in the information do not constitute an offense, lack of jurisdiction, double jeopardy and prescription. Making a comparison between the non-waivable defenses in civil cases and in criminal cases, double jeopardy would be the equivalent of res judicata, while prescription is a non-waivable defense in both cases, litis pendencia is non-waivable in a civil case but in a criminal case, it is not even a defense at all. Failure to state a cause of action is a waivable defense under the Present Rules When the information does not change an offense, the equivalent defense in a civil case is failure to state a cause of action. Past rules: this could be raised at any stage of the proceedings. So it was treated as a non-waivable defense. New rules: It is a waivable defense. Even if the complaint on its face does not state a cause of action, and the court is convinced that the complaint really is inadequate, the court cannot motu propio dismiss the complaint. It must wait for a motion coming from the defendant asking for the dismissal. Reason: this defect could be remedied during the trial of the case. The laintiff may be able to present evidence that will convince the court that he now has a cause of action. Declaration of Default (Rule 9, Sec.3) In civil cases, there is default when the court issues an order declaring the defendant in default for his failure to file a responsive pleading/answer within the reglementary period. Reglementary period: 15, 30 or 60 days, as the case may be, defending on the status of the defendant as a domestic or a local corporation, or defending on whether summons has been served through publications Can the court on its own declare a defendant in default since the absence of an answer filed within the reglementary period can easily be determined by going over the expediente, the records of the case? NO! The court does not have that authority. There must be a motion filed by the plaintiff for the purpose of declaring the defendant in default. If the plaintiff is so neglectful that he does not file a motion to declare the defendant in default, although he knows that there is no answer filed, can the court set the case for pre-trial so that the case will move? NO! Unless all the pleadings are in, the court has no business setting the cause for pre-trial. The case will not move at all. It can move only if the defendant

Reply is Mandatory when Answer is founded on Actionable Doc Where plaintiff files a complaint for the recovery of money, and the defendant sets up the affirmative defense that the loan has been paid by the defendant. That is a new matter that is introduced in the answer. Should the plaintiff file a reply in order to controvert that new matter? NO. Even if the plaintiff fails to file a reply to controvert this allegation of payment, the allegation of payment is deemed controverted. General Rule: The filing of a reply is not mandatory. Is there an occasion where the filing of a reply becomes mandatory, that is mandatory in the sense that if no reply is filed by the plaintiff, it could cause him harm or prejudice? Yes, when the answer is founded on an actionable document. But he is not required to do so expressly. Mandatory in the sense that if the plaintiff does not file a reply, he is deemed to have admitted the genuineness and due execution of the action able document alleged in the answer. But even in the absence of express requirement, he is still mandated to file a reply because of the principle that an actionable document must be specifically denied under oath. And the only means by which the plaintiff could make a specific denial under oath is to file a pleading. And the only pleading that could be used to make specific denial under oath is a reply. The plaintiff cannot make use of an answer because he is the plaintiff. He cannot make use of this responsive pleading. So the only pleading that is left for him to use in order to make a specific denial under oath of an actionable document alleged in the answer, is a reply. Allegation of Usury: -It is only an allegation of usury contained in a complaint which needs a specific denial under oath. -If contained in an answer and set up as a defense, there is no need for the plaintiff to make a specific denial under oath. Even if no reply is filed by the plaintiff, the plaintiff is deemed to have controverted this allegation of usury. Striking out of Pleading or Matter Contained therein, Rule 8, Sec. 11 Since the prep of a pleading is absolutely under the control of the pleader, does it mean to say that he can allege any matter which he feels like doing so? NO. There are limitations. The law does not allow scandalous and indecent matters to be alleged in a pleading. So what is the recourse of the defendant? He can ask that the court strike out the complaint itself. If complaint is stricken off, he can ask the court to strike out such allegation. Will the running of the period to answer be suspended? YES, although the rules again do not expressly say so. The period to respond is interrupted until the court has finally resolved the motion. If the defendant fails to file a motion to strike out the complaint or a part of it, which contains such allegations, can the court on its own order (motu propio) the striking out of the complaint or these scandalous allegations? YES.

Bar Notes on Civil Procedure (Dean J) Zyra C.

decides to files an answer even beyond the reglementary period. Failure of plaintiff to file a Motion to Declare Defendant in Default after a long period of time, court may resort to Rule 17 for failure of plaintiff to prosecute Does the court have any option at all if it waits in vain for the plaintiffs motion to declare the defendant in default? YES! It may dismiss the case under Rule 17 for failure to prosecute. Then the dismissal by the court for failure to prosecute is dismissal with prejudice. Itwill be res judicata that will bar the plaintiff from filing a subsequent complaint based on the same cause against the same defendant. If the plaintiff accordingly files a motion to declare the defendant in default, can he do so through an ex parte motion, given that the defendant anyway has not filed an answer at all? NO! The present rules do not allow a motion to declare a defendant in default to be heard ex parte. There must be service of a motion to declare the defendant in default upon him. He must be notified. Otherwise, the court will have no authority to issue such an order. The defendant then can easily preempt the resolution of the motion by filing the answer right away. After receiving the motion to declare the defendant in default and the defendant files an answer, can the court still declare the defendant in default? YES! If he files the answer beyond the reglementary period. However, according to SC, trial courts must be liberal in matters concerning defaults. Chances are the court will deny the motion. Judgement by default in Ordinary & Summary Procedure If there is really no answer filed by the defendant and he is declared in default, can the court thereafter render a judgment, a decision by default, even without conducting a hearing? In OP: It depends, on the discretion of the court. It can render such judgement, without conducting a hearing OR it can require the plaintiff to present evidence, after which jby default may be made. Two possibilities from the point of view of court when defendant does not answer in OP: (1) Defendant is not willing to put up a fight. He admits his liability to the plaintiff. (2) Failure of defendant is by reason of extraneous matters fraud, accident, mistake or excusable negligence (FAME)-this is the situation contemplated in that excepting clause, where the court is given discretion to order that the plaintiff will present evidence in support of his allegations. In SP: if the defendant does not file an answer within thereglementary period, the plaintiff is prohibited from filing a motion to declare the defendant in default. This is a prohibited motion. Court will simply render judgment based on the allegations in the complaint. Can the court require the plaintiff to present evidence in support of his allegations in summary procedure? NO! The court has no authority to do so. Is it is bad for the defendant to be declared in default? YES! But this does not mean to say that he has automatically lost the case, because if the court orders the plaintiff to present ex parte to prove his allegations, and the plaintiff is unable to present his evidence, the court will also be justified in renderinga decision dismissing the complaint. Generally, if the defendant is declared in default, the trial court will be of the impression that the allegations contained in the complaint are true. But if he is one of several defendant and he is the one in default, the others can utilize him as a witness in the proceeding. Since it could be very disadvantageous for the defendant to be declared in default, does he have a remedy at all? Can he challenge the validity of the default order by appealing? NO! Because that order is purely interlocutory, what may be appealed are final orders. Can he file a motion for a new trial? NO! Because this assumes there has been a trial conducted by the court and there has been judgment rendered by it. If there is only a default order, there is no judgment by default yet. Can the defendant file a motion to lift the order of default? YES! He can do so, any time before the judgment is rendered. Thr grounds that may be utilized are FAME, but the law requires that there must be Affidavits of Merit to prove their existence. He must also show that he has a meritorious defense, Either attached in the motion w/his proposed answer Or embodied in the motion itself. The motion may either be denied or granted. If granted, will the case now be tried by the court? NO! If the default order is lifted, the defendant must still file his answer, because the reason why he has been declared in default is that he has failed to file an answer within the reglementary period. But if he has accompanied his motion with the proposed answer, then that proposed answer will be admitted by the court. Can the plaintiff assail the lifting or setting aside of the default order by appeal? If the court denies motion, can defendant appeal? Both: NO! Such an order is also inerlocutory. It is not appealable. Can the defendant resort to Rule 65, special civil action of certiorari or prohibition? Yes, IF he can show that the trial court has acted without juris, in excess of juris or with grave abuse of discretion amounting to lack of juris: the magic words!

Recourse of defendant where judgement by default is rendered Rule 37,38, 39 After the issuance of the default, assuming that the defendant does not assail the validity of the order, the court can now render a judgmentby default. He will be given a copy, for him to know that there is already a judgment by default rendered against him. Now, can the defendant appeal from that judgment by default? YES! Because it is now a judgment. Can the defaulting defendant resort to Rule 37, that is, file a motion for a new trial or a motion for reconsideration? YES! Because he is assailing a judgment on the merits. Can he later on file a petition to annul judgment under Rule 47? The answer is also YES. Right of the defendant to assail a judgement by default depends on whether procedure is ordinary or summary May there be a situation where there is a judgment by default rendered against the defendant but he cannot avail of Rule 37, (motion for a new trial or reconsideration) or Rule 38, (petition for relief from judgment)?

Bar Notes on Civil Procedure (Dean J) Zyra C.

YES! The availability of these modes to assail a judgment by default depends on the nature of the proceedings. If the case is decided under SP, it cannot be assailed by Rule 37 or 38 , since both are prohibited pleadings or motions. The only remedy available is Appeal. He can also file a petition to annul the judgment under Rule 47b. If in OP, the judgment by default may be challenged under Rules 37, 38 and 40 that is, appeal, and even under Rule 47 court which will determine the extent of the amendment that could be introduced. If the defendant files an answer containing a general denial, which is bad for the defendant, can the defendant amend his answer by converting the general denial into a specific denial? YES! As long as he is given the right to amend his answer. Changing of the denial from general to specific will not harm anybody, if the amendment is made within the period given by law. He can only amend his answer as a matter of right once before a responsive pleading (reply which serves as rp to the answer) is filed. Can the plaintiff amend his reply as a matter of right considering that there is no more responsive pleading to a reply? YES! Rule 10 says that he is given a period of 10 days within which to amend his reply as a matter of right. If the defendant has already been declared in default can the plaintiff decides to amend his complaint as a matter of right? YES! Because no responsive pleading has yet been filed by the defaulting defendant, the order of default is deemed lifted and the defendant is given a new reglementary period within which to file an answer to the amended complaint.

Effect of partial default- Rule 9, Sec.3c Partial default contemplates a situation where there is a plurality of defendants who are sued under a common cause of action. If D1 does not answer but D2 does, can the trial court validly declare D1 in default? YES! As long as the plaintiff files a correlative motion. After declaring D1 in default, can the court render a judgment by default against D1? NO! The authority of the court in partial default is limited only in declaring the non-answering defendant in default. The court should try the case based on the answer of filed by D2. If D2 prevails, then the defaulting defendant will also prevail because they are sued under a common cause of action, unless the defenses set up by D2 are purely personal to him. Where no defaults allowed Rule 9 Sec.3 Family related cases: Annulment of marriage, Legal separation, Declaration of nullity of marriage. What should the plaintiff supposed to do since there is no defense set up by the defendant? Plaintiff should file a motion asking the court to order the prosecutor to make an investigation WON there is collusion between the parties, to see if the parties are fabricating evidence in support of the petition.. The fact that there is no answer filed by the defendant in these family-related cases, does that mean to say that the case will not move at all? The court can still schedule the case for pre-trial, as if the answer had been filed by the defendant. RULE 10Amendments in general- Rule 10, Sec.1 Amendment as a matter of right Sec.2 The filing of an amended pleading could be a matter of right.. before a responsive pleading is filed The filing a supplemental pleading can never be a matter of right, because permission of the court must first be obtained. Coverage is not limited to the complaint, it could refer to all pleadings enumerated in Rule 6. But although there is a right given to the pleader to amend his pleading, he must exercise this only once. What are these responsive pleadings,so that we can determine WON amendment is a matter of right, or of discretion. It is a matter of right, if it is the first amendment. If the plaintiff files a complaint with one cause of action, can he amendhis complaint as a matter of right by introducing three other causes of action? YES! When the law says that a pleader has a right to amend, the pleader has a right to amend, the pleader is given almost absolute discretion in determining which changes are going to be made in his complaint. He has the freedom to change in its entirety the cause of action in his complaint. The right of a pleader to change the allegations in his pleading is practically limitless when the law gives him the right to do so. BUT when it is just a matter of discretion, then he has to get permission from the court and it is the

Amendment is a still a matter of right even if a motion is dismiss is filed A motion to dismiss is not a pleading, so plaintiff still possesses the right to amend his complaint. Instead of opposing the motion to dismiss, he may amend his complaint in order to remedy the defects cited by the defendant. The court will have no other recourse except to deny the motion to dismiss because the defects cited by the defendant are already remedied by the amendment complaint. Amendment is still a matter of right even after a Motion to Dismiss under Rule 16 is granted If plaintiff is not convinced about the validity of the defendants motion to dismiss, and intead of amending, he files an opposition to the motion to dismiss so the court will now have the rule on the merit of this motion. After receiving the cause of dismissal founded onthe absence of cause of action, can the plaintiff still amend his complaint under Rule 10 as a matter of right? YES (SC) even if the complaint has been dismissed by reason of a motion under Rule 16 filed by the defendant, the plaintiff does not lose his right to amend his complaint because the motion to dismiss is not a responsive pleading. BUT this must come before the order of dismissal becomes final, that is, before the lapse of the 15-day period before the order of dismissal is entered (the period within which to challenge the order of dismissal). The order of dismissal of a complaint by virtue of a motion to dismiss is a final order. It could be assailed either by an ordinary appeal or by a petition for certiorari as provided in Rule 41. But even before the plaintiff could avail of any of these remedies hehas another remedy. He does not have to go to a higher court, and all he needs to do is to amend his complaint to rectify the errors that are embodied in his original complaint. Amendment to conform to or Authorize Presentation Device Sec.5 Generally, in the Rules on Evidence, if the evidence submittedby a party has no relation at all to the fact in issue, that evidence is not relevant. And any evidence that is not relevant should not be admitted by the court.

Bar Notes on Civil Procedure (Dean J) Zyra C.

BUT evidence which ought not be admitted but which is not objected to by the adverse party will be admitted by the court. There will be amendment to conform to evidence. If an issue is tried with the consent of the parties, expressly or implied, the pleading is deemed to have been amended. If defendant objects to the evidence and court refuses to amit it, what is the remedy of the plaintiff? Plaintiff can ask the court to authorize him to amend his complaint, and the plaintiff can amend his complaint by introducing a new cause of action, making the evidence relevant. Since the complaint here has been amended, would it be necessary for the court to issue new summons addressed to the defendant, given that a new cause of action has been introduced? NO! (SC) because the amendment anyway is with leave of court and the defendant is furnished a copy of the amended complaint. period within which to answer. But this rule is not absolute. Are there civil actions where the court is given enough authority to reduce the period within which to answer? YES! Rule 66: In quo warranto proceedings. The court may, if it deems jus t to fix a period that is shorter than that provided in the Rules of Court.

Sanction for failure to comply with Rule 11; Default; No default for failure to answer a compulsory counterclaim Sanction for not following Rule 11, on the part of the defending party is that he will be declared default. The sanction does not apply to all claim pleadings. if the counterc laim set-up by the defendant is a compulsory counterclaim, there is no need for the plaintiff to answer it. He cannot be declared in default. Trial Court excercises discretion WON to declare defendant in default for failure to answer a crossclaim SC: if the cross-claim is not answered, the cross plaintiff or the cross plaintiff can also file a motion to declarethe cross defendant in default. BUT the court may or may not grant it. Answer to third-party complaint- Rule 11, Sec. 5 Since a third party complaint, is a new action against the third-party defendant, the latter is also required to file ananswer to the third-party complaint. The period to answer depends on whether the summons is served through publication, personal service, or if the third-party defendant is a foreign corporation, which has been served summons through the proper government agency. 15, 30, or 60-day period similar to that given to a defendant Rule 12- BILL OF PARTICULARS Purpose, or when it is applied for- Rule 12, Sec.1 Bill of particulars is also a prohibited pleading in SP together with intervention. It is a more definite statement of an allegation contained in the pleading which is not alleged with sufficient definiteness or adequacy. In a BoP, the purpose of a litigant in asking for the particulars is to enable him to prepare a responsive pleading. Application of a BoP in civil and criminal cases Civil case: the purpose why BoP may be availed of by a litigant is to enable the litigant to prepare a responsive pleading. Criminal case: the purpose of the accused is to enable him to preparefor trial. So, in a civil case, a litigant cannot go to court and ask the courtto issue an order to compel adverse party to submit a BoP for the purpose of enabling the movant to prepare a responsive pleading. The fact that the complaint contains vague and indefinite allegations is not one of the grounds enumerated in Rule 16 for the dismissal of the complaint. If both the plaintiffs complaint & defendants answer are hard to understand, the court is confused, it might dismiss the case. But the plaintiff always has a remedy if the defendant does not ask for the BoP. Any vagueness or indefiniteness in the complaint can always be remedied by the evidence to be introduced during trial.

When to File Responsive Pleadings- Rule 11 There are only two responsive pleadings among the seven that are enumerated in Rule 6: Answer & Reply. Why did SC fail to provide for a period for the filing of a complaint, after all, it is also a pleading that commences an action in court? SC does not have authority to fix a period for the filing of a complaint be cause that is matter of substantive law. It only has power to fix other pleadings aside from the complaint. This is also the reason why in Rule 16, one of the grounds for a motion to dismiss is prescription (of action), whose are contained in the Civil Code. If prescription has set in and the complaint nonetheless is filed, this could be dismissed either uponmotion of the defendant or the courts. Prescription, remember is one of the non-waivable defenses. Existing counterclaim or cross-claim; period for filing claim pleadings other than a complaint In Rule 11, there is by implication a period fixed for the filing of claim pleadings, particularly a filing of a compulsory counterclaim and cross-claim. Reason: a compulsory counterclaim and a crossclaim which are not set-up are deemed barred. How about a permissive counterclaim? No fixed period, because WON a permissive counterclaim will be lost through prescription is a matter again that will have to be decided by the Civil Code. BUT if defendant desires to incorporate a permissive counterclaim or a third party complaint, he must do so during the pendency of the case. They are independent pleadings, and cannot be filed separately from the answer. There is a period fixed for the filing of an answer: 15, 30 or a period not less than 60 days. Answer to the complaint- Rule 11, Sec.1 Extension of time to plead; period to answer in a case governed in Summary Procedure cannot be extended Not always correct to say that the trial court has authority to extend the period to answer. Distinguish whether the case is governed by SP or OP. In SP: period to respond (10 days) is nonextendible (even if the court grants a motion to extend filing of answer) In OP: the court has discretion to extend the period General Rule: Trial Court has no authority to reducce the period within which to answer; exception-Quo Warranto The trial court has the authority to extend the period but it does not have the authority to reduce the

Bar Notes on Civil Procedure (Dean J) Zyra C.

Bill of particulars is a remedy available to all parties A BoP is a remedy available to all litigants of a case, to both plaintiff and the defendant, to the third-party plaintiff, and to the third-party defendant. Even the plaintiff can avail of a BoP if the allegations contained in the answer are indefinite or vague. Action by the court- Rule 12, Sec.2 A BoP should be requested in the form of a motion by the interested party. The feature of such a motion, which is not featuref in other motions, is that the court has the authority to rule on the motion even the date set for hearing. Under Rule 15 on motions, he should set his motion for BoP for hearing on a motion day. Under the Rules, the court can grany it right away or disregard a hearing set on a particular motion date. If the defendant asks for a BoP and the court denies the motion, can the defendant assail the denial by going to a higher court? NO! It cannot be assailed and it cannot be appealed, it being an interlocutory order. Compliance with order- Rule 12, Sec.3 Effect of non-compliance- Rule 12, Sec.4 Supposing that the court grants the motion for a BoP, and the court directs the plaintiff to submit this BoP, either independently or in the form of an amended pleading or amended complaint or supplemental complaint, and the plaintiff ignores the order of the court, is there any sanction that could be imposed by the court? The court can strike out the complaint, the court will order the allegations in that complaint, which is vague and indefinite, to be stricken out. It may also not strike out the complaint itself but only a portion of it which are allegedly vague. This may be prejudicial to plaintiff because once some allegations in the complaint are ordered stricken out, the remaining allegation may be inadequate to allege a cause of action and, therefore, the defendant can file a motion to dismiss. If a responsive pleading contains vague and indefinite allegations. The court orders the defendant to submit a BoP, but defendant ignores the order of the court.... Plaintiff can move that the answer be stricken out. Nothing will happen to the case, only that it the eyes of the court the defendant has not filed an answer at all. Since he has not filed any answer at all, THEN this will be a proper ground for a motion to declare the defendant in default. The trial court can order the striking out of the pleading or only certain portions of that pleading be stricken out. If only certain portions are stricken out, this could be disadvantageous to the defendant. What is left in the answer may no longer constitute a specific denial. So, if the remaining portions of the answer will not be enough to meet the requirements of a negative defense, plaintiff can now ask for a judgment on the pleadings because the denial contained in that answer is no longer a specific denial or a general denial. Complaint is the pleading that commences an action, it is filing that comes ahead of service. The complaint is first filed in court, docket fees are paid and, after the filing of thecomplaint, it is served upon the defendant together with the summons.

Responsive pleadings, counterclaim and crossclaim It is service that comes ahead of filing. These pleadings must be embodied in the answer. In the case of an answer, before the defendant could file this in court, he must first serve a copy of the answer upon the plaintiff In the case of a third-party complaint, a motion for leave to admit third party complaint must be made, then payment of docket fees. And after the thirdparty complaint is admitted, summons is also served upon the third-party defendant together with a copy of the third-party complaint. Judgements, resoultions and orders of the court It is the filing which comes ahead of service. When the judge renders his decision, he will first submit a copy of the original decision to the clerk of court. That is filing. And it is now the duty of the clerk of court to serve copies of a judgment or order upon the adverse parties. Priorities in modes of service & filing Rule13, Sec.11 Litigants must always be aware that under the present rules there is an order of priority when it comes to service. The order of priority is that personal service must always be resorted to. Otherwise, the service will not be considered as having been properly carried out. If personal service is not resorted to, there must be an explanation given bythe party why he has not resorted personal service. If the motion is filed and the motion is served through registered mail without an explanation, this is a violation! Court may dismiss it outright. Modes or service of motions, pleadings, orders and judgments? (1) personal service, (2) service by mail, (3) substituted service, (4) service by publication <only in unusual, exceptional circumstances> Settled rule: If a litigant is represented by counsel, service must be made upon the counsel. If service is not made upon counsel but upon the party himself, it is not proper service. Rule 13, Sec. 8 vs. Rule 14 Sec. 7 on Substituted Service Difference bet Substituted service of motions, pleadings and other documents & Substituted serviceof summons under Rule 14 Service of motions and pleadings upon the counsel is considered as personal service. Summons, personal service means service upon the defendant himself personally. The term used in Rule 14 is not personal service but service in person to emphasize that the summons must be delivered or at least tendered to the defendant himself. If summons is tendered properly upon a person other that the defendant, then that is substituted service of summons. In pleadings and motions, substituted service refers to a situation where personal service and service by mail is not effective. If personal service and service by mail is not effective, the party will go to the clerk of court, present proof that he has tried to serve this document through personal service or service by mail to no avail and he submits the paper to the clerk of court.

RULE 13FILING & SERVICE OF PLEADINGS, JUDGEMENTS & OTHER PAPERS Papers required to be filed and served- Rule 13, Sec.4 Which comes first? The filing or the service? First, determine the doc that we are referring to. Complaint

Bar Notes on Civil Procedure (Dean J) Zyra C.

RULE 14- SUMMONS Summons is not the sole means to acquire jurisdiction over the person Not accurate: There is a need for summons because this is the only means by which the court can acquire by compulsion, jurisdiction over the person of the defendant. There are instances in the Rules where jurisdiction over the person of the defendant is not acquired necessarily through service of summons. It could also be acquired through the service of other processes, like compulsion. Ex. Rule 65, the rule on certiorari, prohibition and mandamus. It is an independent civil action. The court simply issues an order addressed to the defending party to file a comment. That is a process, which will confer upon the court, by compulsion, jurisdiction over the person of the respondents/defending parties. But generally, for a court to acquire jurisdiction over the person of the defending party by compulsion, summons must be served upon the defendant. of course, if the defendant voluntarily appears in court, then there is no more need for the court to cause the service of summons. Upon the voluntary appearance on the part of the defendant will enable the court to acquire jurisdiction over his person. If the summons is sent by registered mail, even if it is received by the defendant, the court does not acquire jurisdiction him. There are only three modes of service of summons in Rule 14: in person, substitute service and service by publication. Service by mail is just complimentary to service of summons by publication. If the defendant is unknown that is in sec. 14, or his whereabouts are unknown, the court could properly direct that summons be served by publication. In sec. 15, which is the old doctrine on the service by publication called extra-territorial service, the situation contemplated is that the defendant is nonresident andis not found in the Philippines. Generally, we cannot sue in the Phils a defendant who does not reside in the Phils and who is not found in the Phils. The cases excepted are those enumerated in sec. 15. (1) when it Involves the civil status of the plaintiff, (2) when it relates to a property in the Phils over which the defendant has an interest, or it relates to a property and the prayer sought is to exclude the defendant from an interest over that property, or when properties of this defendant havebeen attached. Situation contemplated in sec. 16 is that the defendant is a resident of the Phils but he is temporarily out of the Phils. Sec. 16 appears to authorize the court to order the publication of the summons in order to enable the court to acquire jurisdiction.

Order of priority Service in person will always be preferred over substitute service. And service by publication cannot be had unless the court is convinced that personal service or substitute service has been resorted to but it has not been successfully carried out. Villaroza Case: When the defendant is a domestic corporation, service of summons must be made upon any one of the officers enumerated in Sec. 11. They are the president, the general manager, the managing partner or the treasurer, the corporate secretary or inhouse counsel. Service upon any other officer of the corporation will not be sufficient to confer jurisdiction over the person of this corporation on the part of the court. Otherwise, the court does not acquire jurisdiction over this defendant-corporation. And if the court is not considered to have acquired jurisdiction over the person of the defendant-corporation, a decision rendered by the court is null and void. For a decision to be valid, the court must have jurisdiction over the subject matter, it must have jurisdiction over the person of the litigants and, in some instances, the law requires that the court must also have jurisdiction over the res and the issues submitted to the court. Mason vs. CA, SC reversed strict application of the rules on service of summons upon a domestic corporation. Service upon minors & incompetents Rule 14, Sec.10 Summons must be served upon the minor or insane person and also upon the guardian. BOTH of them! Service upon defendant whose identity or whereabouts are unknown- Rule 14, Sec. 14 Extraterritorial service- Sec.15 Residents temporarily out of the PhilippinesSec.16 There are conflicts concerning the applicability of these sections. Service of summons by mail is NOT a mode of service. If the court directs that summons be served by mail, that order is void.

In an action in personam where defendant cannot be served with summons personally, action must be first converted into an action in rem or quasi-in rem before court can acquire jurisdiction over the person through service of summons by publication; Ruling in Citizens Surety stands Case, everybody is of the belief that defendant is out of the Philips even temporarily, he is sued as an unknown defendant or his whereabouts are unknown, as long as the plaintiff can show that personal service and substitute service could not be carried out properly, his last recourse is to filea motion in court to leave to publish the summons. When the case is purely in personam, publication of the summons, even if allowed by the trial court, will not enable the court to acquire jurisdiction over the person of the defendant. Citizens Surety vs. Herrera, decided before promulgation of 1997 Rules. The doctrine was this: If an action is purely in personam, before the court acquire jurisdiction to try the case and the defendant could not be served by service in person, before the court could acquire jurisdiction by service of summons through publication, the action in personam must first be converted into an action in rem or quasi in rem. Facts: A complaint was filed against the defendant for the recovery of sum of money (an action in personam). In his submission of returns, The sheriff indicated that he could not find the defendant, that he could not summons upon him personally. He also said that substitute servicecould not be carried out because the sheriff does not know where the defendant lived. Since summons could not be serve by personal service or substitute service, the plaintiff filed a motion in court asking the latter for permission to publish the summons to enable the court to acquire jurisdiction over the case. Since there was no opposition to the motion, the court issued an order to plaintiff to have the summons published once a week for three consecutive weeks. And the plaintiff complied with that order. After the publication of the summons, the plaintiff returned to the court and asked to declare

Bar Notes on Civil Procedure (Dean J) Zyra C.

the defendant in default because the records didnot show that an answer was filed by the defendant. Judge Herrera asked the plaintiff why his case should not be dismissed, saying that since the complaint was one in personam and this was not converted into in rem or quasi in rem, court has not acquired jurisdiction over the case. Because the plaintiff could not give an explanation, court issued an order dismissing the complaint. Ruling: Plaintiff went to SC, which affirmed Judge Herrera. It held that to convert an action in personam into an action in rem or quasi in rem, all the plaintiff needs to do is to look for a property in the Philippines belonging to the defendant and have it attached. In Rule 57, it is expressly provided that a preliminary attachment may be issued if the defendant could not be located in the Philippines. To avoid the situation where prescription of the second complaint might already set in by the time preliminary attachment is filed (dismissal by reason of prescription is a non-waivable defense)....it held that trial court was correct in saying that it did not acquire jurisdiction over the case. But the trial court committed an error. In dismissing the case. It should have archived the case, which will make it remain in the records of the courtm as an action duly filed it it. The only consequence is that it will not be considered as an active case or not pending in court, thus prescription will not start to run. jurisdiction over the person of the respondents/defending parties. But generally, for a court to acquire jurisdiction over the person of the defending party by compulsion, summons must be served upon the defendant. of course, if the defendant voluntarily appears in court, then there is no more need for the court to cause the service of summons. Upon the voluntary appearance on the part of the defendant will enable the court to acquire jurisdiction over his person.

What if it is not possible to convert the action in personam into in rem or quasi-in rem? The remedy of the court is not to dismiss the case but send the records to the archives, to be reactivated when the plaintiff is able to locate properties of the defendant in the Phils. These were the doctrines in Citizens Surety vs. Herrera which seemed to be abandoned by the 1997 Rules but SC reiterated that there was no intention on its part to abandon such doctrine. So, the rule up to present, is that before summons by publication could enable the the court to acquire jurisdiction over the case, the action must first be converted from in personam into in rem or quasi in rem. And the conversion easily be done by attaching properties of the defendant found in the Phils. So, when an action is purely in personam converted into quasi in rem because properties of the defendant in the Phils are subject to preliminary attachment, if the defendant does not respond at all, does not file an answer, the case will remain to be an action quasi in remor in rem. BUT if the defendant later on files an answer to the complaint, the action will be reconverted from quasi in rem into in personam RULE 14- SUMMONS Summons is not the sole means to acquire jurisdiction over the person Not accurate: There is a need for summons because this is the only means by which the court can acquire by compulsion, jurisdiction over the person of the defendant. There are instances in the Rules where jurisdiction over the person of the defendant is not acquired necessarily through service of summons. It could also be acquired through the service of other processes, like compulsion. Ex. Rule 65, the rule on certiorari, prohibition and mandamus. It is an independent civil action. The court simply issues an order addressed to the defending party to file a comment. That is a process, which will confer upon the court, by compulsion,

Order of priority Service in person will always be preferred over substitute service. And service by publication cannot be had unless the court is convinced that personal service or substitute service has been resorted to but it has not been successfully carried out. Villaroza Case: When the defendant is a domestic corporation, service of summons must be made upon any one of the officers enumerated in Sec. 11. They are the president, the general manager, the managing partner or the treasurer, the corporate secretary or inhouse counsel. Service upon any other officer of the corporation will not be sufficient to confer jurisdiction over the person of this corporation on the part of the court. Otherwise, the court does not acquire jurisdiction over this defendant-corporation. And if the court is not considered to have acquired jurisdiction over the person of the defendant-corporation, a decision rendered by the court is null and void. For a decision to be valid, the court must have jurisdiction over the subject matter, it must have jurisdiction over the person of the litigants and, in some instances, the law requires that the court must also have jurisdiction over the res and the issues submitted to the court. Mason vs. CA, SC reversed strict application of the rules on service of summons upon a domestic corporation. Service upon minors & incompetents Rule 14, Sec.10 Summons must be served upon the minor or insane person and also upon the guardian. BOTH of them! Service upon defendant whose identity or whereabouts are unknown- Rule 14, Sec. 14 Extraterritorial service- Sec.15 Residents temporarily out of the PhilippinesSec.16 There are conflicts concerning the applicability of these sections. Service of summons by mail is NOT a mode of service. If the court directs that summons be served by mail, that order is void. If the summons is sent by registered mail, even if it is received by the defendant, the court does not acquire jurisdiction him. There are only three modes of service of summons in Rule 14: in person, substitute service and service by publication. Service by mail is just complimentary to service of summons by publication. If the defendant is unknown that is in sec. 14, or his whereabouts are unknown, the court could properly direct that summons be served by publication. In sec. 15, which is the old doctrine on the service by publication called extra-territorial service, the situation contemplated is that the defendant is nonresident andis not found in the Philippines. Generally, we cannot sue in the Phils a defendant who does not reside in the Phils and who is not found in the Phils. The cases excepted are those enumerated in sec. 15. (1) when it Involves the civil status of the plaintiff, (2) when it relates to a property in the Phils over which the defendant has an interest, or it relates to a property and the prayer sought is to exclude the

Bar Notes on Civil Procedure (Dean J) Zyra C.

defendant from an interest over that property, or when properties of this defendant havebeen attached. Situation contemplated in sec. 16 is that the defendant is a resident of the Phils but he is temporarily out of the Phils. Sec. 16 appears to authorize the court to order the publication of the summons in order to enable the court to acquire jurisdiction. of prescription is a non-waivable defense)....it held that trial court was correct in saying that it did not acquire jurisdiction over the case. But the trial court committed an error. In dismissing the case. It should have archived the case, which will make it remain in the records of the courtm as an action duly filed it it. The only consequence is that it will not be considered as an active case or not pending in court, thus prescription will not start to run. What if it is not possible to convert the action in personam into in rem or quasi-in rem? The remedy of the court is not to dismiss the case but send the records to the archives, to be reactivated when the plaintiff is able to locate properties of the defendant in the Phils. These were the doctrines in Citizens Surety vs. Herrera which seemed to be abandoned by the 1997 Rules but SC reiterated that there was no intention on its part to abandon such doctrine. So, the rule up to present, is that before summons by publication could enable the the court to acquire jurisdiction over the case, the action must first be converted from in personam into in rem or quasi in rem. And the conversion easily be done by attaching properties of the defendant found in the Phils. So, when an action is purely in personam converted into quasi in rem because properties of the defendant in the Phils are subject to preliminary attachment, if the defendant does not respond at all, does not file an answer, the case will remain to be an action quasi in remor in rem. BUT if the defendant later on files an answer to the complaint, the action will be reconverted from quasi in rem into in personam Rule 15-MOTIONS Motions vs. Pleadings In Rule 6, there is an enumeration of only 9 pleadings. In Rule 15, SC mentions nothing about the number of motions that could be used in a particular case. The enumeration is not possible since a motion depends mostly completely upon the creativity of a lawyer. If a lawyer cannot ask for a relief in a pleading, he can always do so in a motion. And it is up to him to give the name of the motion. Pleadings cannot be filed while the case is already on appeal before the appellate courts. But there is nothing to stop a litigant from filing motions before them. Motions filed before the trial court compared to Motions filed before the appellate courts; Notice of Hearing (Sec.5) In a motion filed before the trial court in Rule 15, the motion generally must contain a notice of hearing. Otherwise, it is useless, just a scrap of paper. A motion that filed before the CA or the SC does not have to contain a notice of hearing. Reason: No motion day in SC & CA. Before a trial court, compliance with all the requisites of a motion is a must. Such as a notice of hearing. Otherwise, the court has no authority to act on that motion. Omnibus Motion Rule (Sec.8) A motion attacking a pleading should contain all the grounds therein available. Otherwise, grounds that are left out are waived, except again the nonwaivable grounds in Rule 9. Rule 16 MOTION TO DISMISS Pleading grounds as affirmative defenses.

In an action in personam where defendant cannot be served with summons personally, action must be first converted into an action in rem or quasi-in rem before court can acquire jurisdiction over the person through service of summons by publication; Ruling in Citizens Surety stands Case, everybody is of the belief that defendant is out of the Philips even temporarily, he is sued as an unknown defendant or his whereabouts are unknown, as long as the plaintiff can show that personal service and substitute service could not be carried out properly, his last recourse is to filea motion in court to leave to publish the summons. When the case is purely in personam, publication of the summons, even if allowed by the trial court, will not enable the court to acquire jurisdiction over the person of the defendant. Citizens Surety vs. Herrera, decided before promulgation of 1997 Rules. The doctrine was this: If an action is purely in personam, before the court acquire jurisdiction to try the case and the defendant could not be served by service in person, before the court could acquire jurisdiction by service of summons through publication, the action in personam must first be converted into an action in rem or quasi in rem. Facts: A complaint was filed against the defendant for the recovery of sum of money (an action in personam). In his submission of returns, The sheriff indicated that he could not find the defendant, that he could not summons upon him personally. He also said that substitute servicecould not be carried out because the sheriff does not know where the defendant lived. Since summons could not be serve by personal service or substitute service, the plaintiff filed a motion in court asking the latter for permission to publish the summons to enable the court to acquire jurisdiction over the case. Since there was no opposition to the motion, the court issued an order to plaintiff to have the summons published once a week for three consecutive weeks. And the plaintiff complied with that order. After the publication of the summons, the plaintiff returned to the court and asked to declare the defendant in default because the records didnot show that an answer was filed by the defendant. Judge Herrera asked the plaintiff why his case should not be dismissed, saying that since the complaint was one in personam and this was not converted into in rem or quasi in rem, court has not acquired jurisdiction over the case. Because the plaintiff could not give an explanation, court issued an order dismissing the complaint. Ruling: Plaintiff went to SC, which affirmed Judge Herrera. It held that to convert an action in personam into an action in rem or quasi in rem, all the plaintiff needs to do is to look for a property in the Philippines belonging to the defendant and have it attached. In Rule 57, it is expressly provided that a preliminary attachment may be issued if the defendant could not be located in the Philippines. To avoid the situation where prescription of the second complaint might already set in by the time preliminary attachment is filed (dismissal by reason

Bar Notes on Civil Procedure (Dean J) Zyra C.

If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. Can the defendant file a motion to dismiss under Rule 16 one after another? YES, if these non-waivable defenses under Rule 9 (lack of jurisdiction over the subject matter, res judicata, litis pendentia, prescription) are available, the Omnibus Motion Rule does not apply... and the defendant is given the freedom to successively file four motions to dismiss founded on these four grounds. But when it comes to the other grounds for a motion to dismiss enumerated in Rule 16 even if all of them are available at the time of the filing of the motion to dismiss, these grounds must be invoked in a single motion to dismiss. Otherwise, the Omnibus Motion Rule will apply. A ground that is not incorporated in a motion to dismiss is deemed waived. Its no longer an interlocutory order. An order dismissing a case by reason of a motion to dismiss under Rule 16 is a final order. Since it is a final order, can theplaintiff therefore appeal from that order of dismissal? If the dismissal is founded upon the grounds enumerated in letters F, H, and I (Rule 41) there could be an appeal: Res judicata; Prescription; Obli has been waived, abandoned or otherwise extinguished; When the court finds that the claim is unenforceable under the Statute of Frauds When it comes to the granting of a motion to dismiss, and the question revolves around the remedies available to the plaintiff in assailing the dismissal of his case, do not jump to the conclusion that since it is a final order it is appealable to a higher court. Section 1 of Rule 41: There is an enumeration of orders which although considered as final, are not appealable. So, not all final orders are appealable under Rule 41. The only remedy that is given to plaintiff is petition for certiorari under Rule 65.

Resolution of motion (Sec.3) In other motions, the court has 2 options: it will have to resolve, either to grant or deny it. BUT in a motion to dismiss there is a 3rd option that is given to the court - that is, it will order amendment to the pleadings. In resolving a motion to dismiss the court is mandated to explain the reasons which support the resolution of the court. Hearing of motion (Sec.2) The court may conduct really a trial or a hearing of this motion to dismiss, although there are other motions also which may require the holding of a trial (motion for the issuance of a preliminary attachment, motion for the issuance of a temporary restraining order or a writ of preliminary injunction) If the court conducts a trial on a motion to dismiss, the evidence submitted during that hearing and everything that comes during the motion to dismiss are deemed reproduced during the trial of the case, so that there is no need for repetition of trial that is conducted with the court with reference to a motion to dismiss. Can the court on its own dismiss a complaint using Rule 16? YES. As long as the ground used by the court is any one of the non-waivable grounds. In Rule 9, the court is given authority to dismiss motu proprio a case based on any of the non-waivable grounds. So the court also can dismiss a case under Rule 16 but the grounds should be limited to those grounds enumerated in Rule 9. Effect of dismissal in relation to final orders which are not appealable under Rule 41 (Sec.5) If a motion to dismiss is denied by the court, can the defendant assail the order of denial by bringing it up to a higher court? NO. Generally, the denial of a motion to dismiss is an interlocutory order. It cannot be questioned by appeal. Can defendant assail the denial of his motion by availing Rule 65? YES. As long as he can comply with the requirements of Rule 65, that is, he can file a petition for prohibition under Rule 65. If a motion to dismiss is granted by the court, is the order dismissing the complaint an interlocutory order?

Dismissal of a complaint under R16, when with/without prejudice Is the dismissal of a complaint under Rule 16 with or without prejudice? If the dismissal is founded upon any of the grounds mentioned in letters F, H, and I, the dismissal is a dismissal with prejudice and therefore the remedy of the plaintiff is to appeal, not to file a petition under Rule 65. If the dismissal of a case under Rule 16 is founded on grounds OTHER than letter F, H, and I, the dismissal is without prejudice and therefore the remedy of the plaintiff is not to appeal but to file a petition for certiorari as mandated by Rule 41. By implication, Rule 41 tells the plaintiff: If the dismissal is without prejudice one doesnt have to make use of Rule 65. Since the dismissal is without prejudice all that plaintiff needs to do is to file another complaint against the same defendant for the same cause. But if he insists on assailing the order of dismissal without prejudice, he is precluded from taking an appeal. His only recourse is tofile a petition for certiorari under Rule 65. Pleading grounds as affirmative defenses (Sec.6) Instead of filing a motion to dismiss, the defendant could choose to file an answer and incorporate in that answer any or all of the grounds in Rule 16 as an affirmative defense. Procedural advantage of pleading any of the grounds under Rule 16 as an Affirmative Defense Will it be advantageous for defendant if he simply files a motion to dismiss or will it be advantageous for the defendant to file an answer for affirmative defense? YES. If defendant files an answer with an affirmative defense, that is, he makes use of any of the grounds in Rule 16 as an affirmative defense. He can incorporate in that answer already a counterclaim, a permissive or compulsory counterclaim. And then he could ask for a preliminary hearing on these affirmative defenses as if a motion to dismiss has been filed. If the court is convinced that the case should really be dismissed by reason of Rule 16, then it will. But in Rule 16 it is provided that the dismissal of the complaint will not prejudice any counterclaim, which the plaintiff has set up. So, the case will be dismissed but a counterclaim set up by the defendant in his answer will not be dismissed. It can be tried by the court. If that is the only procedural advantage, cant the defendant also file a motion to dismiss and embody

Bar Notes on Civil Procedure (Dean J) Zyra C.

in it his counterclaim so that if the motion is granted he will just ask the court to go ahead and hear the counterclaim? NO. It is not possible. A counterclaim must always be incorporated in another pleading. A motion to dismiss is not a pleading so that it is not proper for a defendant to file a motion to dismiss with a counterclaim. He can only file a counterclaim if he files an answer and in that answer he makes use of any of the grounds in Rule 16 as an affirmative defense. that there is pending between the plaintiff and the defendant involving this realty. Since there is an action that is already pending in court, does the interested party need permission from the court before he can register a notice of lis pendens? NO. For the purpose of recording a notice of lis pendens even if there is already a pending action. The register of deeds cannot tell the applicant to produce permission from the court. Will it give any advantage to the interested party if the notice of lis pendens is so registered? A notice of lis pendens is only a notice to the whole world that there is a pending act ion between the plaintiff and the defendant. The registered owner of the property will not be prevented or precluded from disposing the property. So, a property that carries with it an annotation of a notice of lis pendens can be sold, mortgaged or encumbered. The notice of lis pendens will not be considered as obstacle to the conveyance of the property involved in the litigation. The advantage enjoyed by the applicant is that the subsequent buyer of the property or the person who subsequently acquires a lien over the property cannot be considered as a lien holder or buyer in good faith. So, the sale or the encumbrance is valid, but the same will be subject to the outcome of the litigation. Since a notice of lis pendens could be recorded even without the permission of the court, can the notice of lis pendens be cancelled without permission from the court? This time, if it is a cancellation of notice of lis pendens, there is a need for an order of the court to carry out the cancellation. So, the registration of a notice lis pendens does not require prior leave, but the cancellation thereof requires permission from the court trying the case. LITIS PENDENCIA simply means the pendency of another case involving the same parties founded on the same cause of action. (Review Splitting of Action) When a cause of action is split by the plaintiff and he, files two or more complaints against the same defendant, involving the same subject matter and founded on the same cause, the rule on splitting a cause of action says that one or more of the causes can be dismissed under Rule 16 by reason of pendency of another action. (Review Rule 9) Litis pendencia is one of the nonwaivable grounds for the dismissal of the case.

Grounds (Sec.1) 1. Absence of jurisdiction over the subject matter There is nothing in the rules of court which has provided for jurisdiction of courts over the subject matter. The reference should always be to BP 129. BP 129 is the general law on jurisdiction and, as general law, it will always give way to a special statute or a special legislation.For instance, real actions are cognizable either by a RTC or an inferior court depending upon the assessed value of the property. This is provided in BP129. But if the real action involves title to or possession of a subdivision lot, and the dispute is between the subdivision develop and the subdivision lot buyer, the case is cognizable exclusively by a quasi-judicial body, the Housing and Land Use Regulatory Board (HLURB) by virtue of PD 957. Another real action, for instance, which is not cognizable by courts of justice either by the RTC or an inferior will be a land covered by the Agrarian Reform Code. These disputes are cognizable by the agencies treated by the DAR. 2. Lack of jurisdiction over the person of the defendant. How can the defendant properly assail lack of jurisdiction over his person on the ground that summons has not been served upon him properly when he is compelled under Rule 16 to file a corresponding motion? Does not the filing of the motion to dismiss itself be considered as recognition by the defendant that the court has jurisdiction over his person? Even if a defendant files a motion to dismiss founded on absence of jurisdiction over the person of the defendant, the mere filing of the motion to dismiss will NOT be considered as voluntary submission by the defendant of his person to the jurisdiction of the court. That is sometimes known as a special appearance in a motion to dismiss by the defendant founded on this ground. Under old jurisprudence, if a defendant files a motion to dismiss founded on lack of jurisdiction over his person, he should not accompany his motion with any other grounds. Under new rules, lack of jurisdiction over the person of the defendant CAN be coupled or accompanied by other grounds for a motion to dismiss mentioned in Rule 16. 3. Improper Venue- Rule 4 4. Lack of Capacity to Sue on the part of the Plaintiff Supposing, it is the defendant who does not have the capacity to be sued, will that be a groundfor dismissal under Rule 16? YES. But the basis will be failure to state a cause of action, litis pendencia Litis pendencia vs. Notice of lis pendens LIS PENDENS which is found in Rule 13, is a contructive notice in real actions. Notice of lis pendens operates when the case involves title to or possession of real property, and one of the litigants requests the register of deeds to annotate at the back of the title of the property involved of the fact

RULE 17-DISMISSAL OF ACTIONS Section 1. Dismissal upon notice by plaintiff. By filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the serviceof plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action.

Bar Notes on Civil Procedure (Dean J) Zyra C.

Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint. The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. Dismissal under Rule 16 vs. Dismissal vs. Rule 17 Dismissal in Rule 16, comes from the initiative of the defendant when he files a motion to dismiss; whereas in Rule 17, the dismissal comes from the initiative of the plaintiff, or the defendant or from the initiative of the court itself (but grounds are different) Dismissal upon Notice by Plaintiff (Sec.1) When it is the plaintiff who files a notice of dismissal under Rule 17, he does not have to give any reason at all. The court cannot compel the plaintiff to give a reason why he is dropping or withdrawing his complaint. But this privilege is given to the plaintiff that is, the privilege to drop his complaint, by mere notice before the defendant files his responsive pleading or beforea motion for summary judgment is filed. Two-dismissal Rule A third complaint can be filed by the plaintiff. The defendant will now file a motion to dismiss the third case based on res judicata because the second dismissal operates as an adjudication upon the merits. But it is essential that before we apply the twodismissal rule, the court must have jurisdiction over the two cases. If any one of these cases was filed before a court without jurisdiction, the dismissal by notice of the plaintiff or the two-dismissal rule will not have any application at all. If this third complaint is filed against the defendant but he neglects also to file a motion to dismiss by reason of res judicata, can the court on its own dismiss the third complaint? YES. If you are going to use Rule 9, because under it, res judicata is one of the non-waivable defenses. So, the third complaint will be dismissed upon motion by the defendant, or even in the absence of a motion by the defendan, the court may motu propio dismiss the case because under Rule 17, the 2nd dismissal operates as an adjudication upon the merits meaning to say, it is as if the court has rendered a judgment on the merits & that judgment has become final & executory. Will the 2nd dismissal operate as an adjudication on the merits outright that is, upon the dismissal of the second complaint, will that operate outright as res judicata? NO. you also have to observe the 15-day period before that order is entered. So, that order or dismissal is not immediately executory. It will be entered after the lapse of 15 days and before entry, the plaintiff can change his mind. The plaintiff can ask the court to lift the consequences of the twodismissal rule. Can the 1st dismissal operate as an adjudication upon the merits? Generally, NO. It depends now on the attitude of the plaintiff, when he asks for the dismissal for the 1st time. If he does not qualify the 1st dismissal as one with prejudice, the 1st dismissal will always be considered as a dismissal without prejudice. Can the plaintiff qualify his second dismissal as a dismissal without prejudice? NO. The 2nd dismissal will always be with prejudice and it will always operate as an adjudication upon the merits, even if the plaintiff tells the court that he is dismissing without prejudice.

Dismissal upon Motion of Plaintiff (Sec.2) In the next section, the plaintiff is still given the prerogative to dismiss the complaint. But this time, the dismissal by the plaintiff should be with leave of court, after the defendant has filed an answer. If it is the plaintiff who asks for the dismissal of his own complaint. The defendant really should not object to the dismissal of the complaint because that is for the benefit of the defendant. But he may have some reasons for objecting to the dismissal by the plaintiff himself after he has filed his answer. One good reason is when he has incorporated or embodied in his answer a counterclaim. If the defendant has embodied in his answer a counterclaim, the dismissal by the plaintiff after the filing of the answer will NOT affect the counterclaim. So, thecounterclaim could stand. Will this principle be applied even if the counterclaim is compulsory in character? Rule 17 tells us that the counterclaim filed by the defendant will stand regardless of the nature of the counterclaim. So a compulsory counterclaim is not affected by the dismissal of the complaint itself. Generally, if a complaint is dismissed, the ancillary proceedings in that complaint will also be dismissed. But in Rule 17, it recognizes this instance where a complaint is dismissed but the ancillary proceeding concerning the compulsory counterclaim will not be affected. In fact, Rule 17 gives to the defendant an option. The defendant can ask the court to try the compulsory counterclaim OR he can ask the court also to dismiss his counterclaim although compulsory in character, without prejudice to his pursuing the same counterclaim in an independent action. Dismissal due to fault of Plaintiff (Sec.3) Other grounds for dismissal 1. Upon motion by the defendant and upon the initiative of the court itself. If the plaintiff does not appear during a trial scheduled for the presentation of his evidence in chief. The defendant can ask for the dismissal of the case, and such dismissal is one with prejudice unless the court otherwise qualifies. If the plaintiff fails to obey an order of the court or fails to comply with the provisions of the Rules of Court, the case could also be dismissed and the dismissal again is with prejudice unless otherwise qualified. Rule 17 is emphatic in saying that it is in absence of the plaintiff during the trial scheduled for the presentation of his evidence in chief. So, if theplaintiff does not appear during the trial set for the presentation by the plaintiff of rebuttal evidence, the defendant cannot ask for the dismissal of the complaint because the presentation by the plaintiff of rebuttal evidence means that the plaintiff has already submitted his evidence in chief.

Bar Notes on Civil Procedure (Dean J) Zyra C.

So, it is not the absence of the plaintiff in any stage of the trial that will justify the dismissal of the complaint. It is his absence in a trial where the court has scheduled the presentation by the plaintiff of his evidence in chief. So you should know the distinction between evidence in chief and rebuttal evidence, so we could properly apply the provisions of Rule 17. Sec. 5. Effect of failure to appear. The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. Sec. 6. Pre-trial brief. The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others: (a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (b) A summary of admitted facts and proposed stipulation of facts; (c) Issues to be tried or resolved; (d) The documents or exhibits to be presented, stating the purpose thereof; (e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and (f) The number and names of the witnesses, and the substance of their respective testimonies. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. RULE 17- DISMISSAL OF ACTIONS Dismissal under Rule 16 vs. Dismissal in Rule 17 Dismissal in Rule 16 comes from the initiative of the defendant Whereas in Rule 17, dismissal comes from the initiative of the Plaintiff, from the defendant, or from the Court itself But the grounds will be different Dismissal upon NOTICE by Plaintiff (Sec.1) Done before service of answer or of a motion for summary judgment Ministerial duty of court to issue order confirming the dismissal WITHOUT prejudice, EXCEPT where : 1. The notice states otherwise 2. The plaintiff has previously dismissed the case in court of competent jurisdiction 3. The dismissal is premised on the fact that the defendant has already paid the claim Court cannot compel the plaintoff to give a reason why he is dropping or withdrawing his complaint. 1st dismissal generally does not operate as an ajudication upon the merits (with prejudice), unless he says so. Two-dismissal Rule A plaintiff may file a 2nd complaint against the same defendant.

2. When the plaintiff neglects to prosecute his

claim for an unreasonable length of time. In one case, the plaintiff filed a complaint against the defendant for the recovery of money. Somehow, the plaintiff failed to follow up the issuance of the summons. So, the summons was already prepared by the clerk of court but nobody picked up the summons from the office of the clerk. So, that case could not move for a long period of time. When the court inventoried the cases pending before it, the court discovered this case. It was filed and the summons was prepared by the court but nobody picked up the summons. So thecase really became inactive. Could the court dismiss that complaint on the ground of nolle prosequi that is, failure by the plaintiff to prosecute his claim for an unreasonable length of time? YES. That is a perfect example of a case where the plaintiff has failed to prosecute his complaint for an unreasonable length of time.

RULE 18- PRE-TRIAL Section 1. When conducted. After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. Sec. 2. Nature and purpose. The pre-trial is mandatory. The court shall consider: (The) (a) Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; (b) Simplification of the issues; (c) Necessity or desirability of amendments to the pleadings; (d) Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) Limitation of the number of witnesses; (f) Advisability of a preliminary reference of issues to a commissioner; (g) Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (h) Advisability or necessity of suspending the proceedings; and (i) Such other matters as may aid in the prompt disposition of the action.

Sec. 3. Notice of pre-trial. The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. Sec. 4. Appearance of parties. It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a rep shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of docs.

Bar Notes on Civil Procedure (Dean J) Zyra C.

2nd dismissal is not an adjudication of the merits outright. It does not operate outright as res judicata. A 15-day period has to be observed before the order of dismissal is entered. The order is not immediately executory. So within the period, plaintiff may change his mind and ask the court to lif the consequences of the two-dismissal rule. But 2nd dismissal will always be with prejudice, even if the plaintiff provides otherwise. He may still file a 3rd complaint, just the physical act...which may be moved to dismiss by the defendant based on res judicata. In the absence of a motion, court may motu propio dismiss it Court must has jurisdiction over the 2 cases. If any one of these cases was filed before a court without jurisdictiom, then the two-dismissal rule will not have any application at all. RULE 18- PRE-TRIAL When filed Sec. 1 After the last pleading has been served and filed, or after the period to file it has expired It is plaintiffs duty to move ex parte that case be set for pretrial Upon Termination of Pre-trial (Sec.7) Court shall issue an order which shall recite: 1. The matters taken up in the conference; 2. The action taken thereon, the amendments allowed to the pleadings, 3. The agreements or admissions made by the parties as to any of the matters considered. If the action will proceed to trial, the order shall define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. Pre-trial in a Civil case vs. In a Criminal case Pre-trial is MANDATORY in both cases. In Summary Procedure, preliminary conference is also mandatory. Amicable settlement of a civil case is a matter of public policy. So the court cannot do away with it even if it is with the consent of both parties. Criminal Case Purpose To enable the parties No compromise agreement to settle their because it is the interest of differences amicably; the state which is involved To enter into a But with respect to the civil compromise liability arising from the crime, agreement the Civil Code encourages that there be an amicable settlement between accused & victim and that this be without prejudice to the prosecution of the criminal aspect of the violation Pre-trial Brief Parties are required to If parties do not submit one, submit one, no sanction at all otherwise, the court could impose sanctions for each violation Requirement that Stipulation of Facts must be reduced into writing and signed by the accused and his counsel No need. YES. Otherwise the facts stipulated will not be admissable against the accused. Nature and Purpose (Sec.2) The pre-trial is mandatory. One of the purposes of a pre-trial conference aside from the possibility of an amicable settlement is the possibility of suspending the action If the court is given the discretion to determine WON the preceding should be suspended, there should at least be grounds for it (provided by the Civil Code) The court shall consider: The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; The simplification of the issues; The necessity or desirability of amendments to the pleadings; The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; Civil Case

Dismissal upon MOTION of plaintiff Sec. 2 Done after the defendant has filed an answer. A dismissal WITHOUT prejudice, unless otherwise specified in the order by the court. Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiffs instance save upon approval of the court& upon such terms&conditions as the court deems proper. If a counterclaim has been pleaded by defendant prior to the service of the plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. Generally, if a complaint is dismissed, the ancillary proceedings in that complaint will also be dismissed. But in Rule 17, the defendant is given this option: The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion he inidicates that he wants his counterclaim resolved in the same action. He can allow it to be dismissed likewise, without prejudice to his pursuing the same counterclaim in an independent action. Dismissal DUE TO FAULT of Plaintiff (Sec.3) Motu propio of the court OR upon motion of Defendant Dismissal is WITH prejudice, unless otherwise declared by court or ground is lack of jurisdiction Grounds 1. Non-appearance on the date plaintiff is to present his evidence in chief without justifiable reason - limited to the date of presentation of evidence in chief only; plaintiffs failure to appear, not absence of lawyer, that warrants dismissal -if plaintiff has already presented his evidence, his failure to appear in subsequent proceedings (or his absence in any stage of the trial, like presentation of rebuttal evidence) is not failure to prosecute but a waiver of right to cross-examine and object to the admissibility of evidence. 2. Failure to prosecute for an unreasonable length of time - applies to pre-trials and appeals; 3. Non-compliance with the Rules or any court order - e.g. plaintiff fails to amend complaint even after court orders him to do so, or when he fails to move for pre-trial of the case Remedy of the defeated party (in relation to Rule 41) In Rule 16 & 17, the order of dismsal is final but it may be with or without prejudice. If it is with prejudice, it is appealable. If it is without prejudice, the remedy in Rule 41 when it comes to a final order that is without prejudice is a petition for certiorari under Rule 65

Bar Notes on Civil Procedure (Dean J) Zyra C.

The limitation of the number of witnesses; The advisability of a preliminary reference of issues to a commissioner; The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; The advisability or necessity of suspending the proceedings; Such other matters as may aid prompt disposition of the action If plaintiff presents evidence showing a different award, this will be given. So, in this case, the defendant is not given the chance to present his evidence to prove his defenses in the answer filed by him-because he has violated the rule, that he should attend pre-trial, that he should submit a pre-trial brief

RULE 19- INTERVENTION When to file motion to intervene (Sec.2) Any time before rendition of judgement by the trial court If the case has already been decided, like when it is already on appeal, then intervention as a remedy is cut off Exceptions: 1. When the one who is intervening is an indispensable party who was not impleaded, otherwise judgement will never be final 2. When intervenor is the Republic of the Philippines Who may intervene; (Sec.1) A person who has a legal interest in 1. The matter in litigation 2. The success of either of the parties 3. Or an interest against both 4. Or is so situated as to be adversely affected by a distribution or other disposition of property in custody of court or an officer The court shall consider WON the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and WON the intervenors rights may be fully protected in a separate proceeding Pleadings-in-intervention (Sec.3) A motion for intervention is not a pleading, it is a proceeding. Complaint-in-intervention if he asserts a claim against either or all of the original parties; he must pay docket fees so that the court will acquire jurisdiction over the intervenors c.i.n Answer-in-intervention if he unites with the defending party in resisting a claim; no need to file docket fees because this is not an initiatory pleading After the intervention is allowed, the intervenor can use other pleadings enumerated in Rule 6, as long as they are consistent with his initial stand as an intervenor. Note: the rule also requires now a responsive pleading to a complaint or an answer in intervention Remedy of an intervenor whose motion has been denied Appeal from that denial Effect of dismissal of the main case on the intervention Intervention is always ancillary to the main case. There can be no intervention unless there is a main action pending in court. If there is a motion for intervention which has been filed, but the main case is dismissed by the court, the intervention could stand on its own. If it is anintervention wherein the interest of the intervenor is adverse to both plaintiff & defendant Intervention as a matter of right Any member of a class who is involved in a class suit has the right to intervene. If he was not named in the complaint or in an answerm and he decides to protect his interest, he has a right to intervene in that litigation. But outside the intervention by a member of a class, WON the stranger will be allowed to intervene is left to the discretion of the court

Appearance of parties; Counsel must be armed with power of attorney if party cannot attend pretrial (Sec.4) It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown or if a representative shall appear in his behalf fully authorized in writing to... 1. Enter into an amicable settlement 2. Submit to alternative modes of dispute resolution 3. Enter into stipulations or admissions of facts and of docs After the termination of pre-trial conference by a trial court, it would be arbitrary and capricious for it to schedule another one. If partues do not attend the 2nd pre-trial, the court cannot validly impose sanctions. Effect of Failure to Appear (Sec.5) By Plaintiff- There shall be cause for dismissal of the action, which is WITH prejudice, unless otherwise ordered by the court. By Defendant- shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. Defendant will not be able to participate in the presentation, nor introduce his own evidence. Pre-trial Brief(Sec.6) Parties shall file this with the court and serve on the adverse party at least 3 days before date of the pretrial Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial Their respective pre-trial briefs shall contain: 1. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; 2. A summary of admitted facts & proposed stipulation of facts; 3. The issues to be tried or resolved; 4. The docs or exhibits to be presented, stating their purpose 5. A manifestation that they have availed or intended to avail discovery procedures or referral to commissioners; and 6. The number & names of the witnesses, and the substance of their respective testimonies. Ex Parte Hearing under Rule 18 vs. That in Rule 9 In both rules, like when defendant does not attend a pre-trial conference (18) or when defendant is declared in default (9), the court could issue an order directing an ex parte hearing to be conducted for sole purpose of receiving plaintiffs evidence. But there is a difference as to the AWARD In Rule 9, the award to be given by the court is limited to what has been prayed for in the complaint. It could be less but not be more than the relief that is prayed for in the complaint. Also, if the defendant is in default, this shows that he is not willing to put up a fight. In Rule 18, there will be application of Rule 10 or an amendment to the pleading to conform to evidence.

Bar Notes on Civil Procedure (Dean J) Zyra C.

Forced Intervention Usually, intervention in Rule 19 is voluntary. But there can also be forced intervention. It takes place in Rules 39 & 57, when there is garnishment, a writ of preliminary attachment, or a levy on execution When an account in the hands of a stranger is garnished because the account or the property belongs to the judgement obligor, the garnishee, the stranger, effectively becomes a forced intervenor. So whether he likes it or not, he is subjected to the orders of the court pertianing to the garnished account. Note: Motion for intervention is prohibited in Summary Procedure RULE 20- CALENDAR OF CASES The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for hearing. Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. Assignment of cases to the different branches of court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. RULE 21- SUBPOENA Note: Remember always the viatory right of a witness for purposes of civil actions Subpoena defined (Sec.1) Subpoena is a process directed to a person which requires him to attend and to testify at 1. The hearing or the trial of an action, or 2. At any investigation conducted by competent authority, or 3. For the taking of his deposition. Subpoena duces tecum - when a subpoena requires him to bring with him any books, documentss, or other things under his control. If he invokes his viatory right, he cannot be compelled by a court to attend a hearing or to produce documents if the subpoena is duces tecum Subpoena may be issued by (Sec.2) 1. The court before whom the witness is required to attend; 2. The court of the place where the deposition is to be taken; 3. The officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or 4. Any Justice of the SC or of the CA in any case or investigation pending within the Philippines. If application for a subpoena to a prisoner is made, the judge or officer shall examine and study it to determine whether the same is made for a valid purpose. No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the SC Contents (Sec.3) Name of the court and the Title of the action or investigation should be stated It shall be directed to the person whose attendance is required In the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, doc or things demanded (which must appear to the court as prima facie relevant) Quashing a subpoena (Sec.4) The issuance by the court of the subpoena does not mean to say that it has been properly served upon the witness

Subpoena Duces Tecum- may be quashed upon a motion if... 1. It is Unreasonable and Oppressive, 2. The relevancy of the books, documents or things does not appear, 3. If the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. Subpoena Ad Testificandum- may be quashed on the ground that the witness is not bound thereby. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage (he resides more than 100km away, from the place whre the trial is going to be held by the usual course of travel-land transportation) allowed by these Rules were not tendered when the subpoena was served. If the witness invokes his viatory right and there is nothing which a court could do to compel his attendance, the remedy is to resort to the modes of discovery. Modes of Discovery- these allow a fishing expedition. Parties can avail of these even if they do not intend to present to the court as evidence the info or docs that they have acquired through these modes of discovery.

Service of Subpoena (Sec.6) Shall be made in the same manner as personal or substituted service of summons. The person on whom it is served shall be delivered a copy of summons, tendering to him the fees for one days attendance and the kilometrage allowed by the Rules Tender not be made when subpoena is issued by or on behalf of the RP or an officer or agency thereof Service must be made so as to allow the witness a reasonable time for preparation and travel of the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered. A person present in court before a judicial officer (Sec. 7) may be required to testify as if he were in attendance upon a subpoena issued by such court or officer Compelling Attendance (Sec. 8) If a witness fails to attend, the court issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant (to the sheriff of the province) to arrest the witness, bring him before the court where his attendance is req The cost of warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse. Contempt (Sec.9) If a person fails, without adequate cause, to obey a subpoena served upon he, will be deemed in contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law Exceptions (Sec. 10) Sections 8 & 9 shall not apply to a witness who resides more than 100 km from his residence to the place where he is to testify by the ordinary course of

Bar Notes on Civil Procedure (Dean J) Zyra C.

travel, OR to a detention prisoner if no permission of the court in which his case is pending was obtained. RULE 22- COMPUTATION OF TIME How to compute time (Sec. 1) Like Civil Code: Exlude the 1st and Include the Last The day of the act or event from which the designated period of time begins to run is to excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day..there is deemed to be an extension of the period or pretermission of holidays Effect of Interruption 1. If there is an act which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. 2. The day of the act that caused the interruption shall be excluded in the computation of the period. (n) MODES OF DISCOVERY If these are availed of, there is a chance that the parties will no longer hold a trial over the factum probandum. They could be compelled to enter into a stipulation of facts, because these modes of discovery will enable one party to get as much infor concerning the stand of the other party. Under Rule 6, the plaintiffs complaint and defendants answer are supposed to allege only ultimate facts, they are not supposed to contain evidentiary facts. The knowledge of defendants theory will be limited to what appears in the pleadings submitted by defendant. So, using the modes of discovery, the plaintiff can gather info from the defendant himself or he can compel defendant to produce evidence concerning the case. Using these modes, info can be gathered by the respective parties and this will presumably help them analyze WON to go ahead with the case, or to present certain evidence which at the time of the pleadings were not available to the adverse party. Remember, in deposition...if the deposition of a witness is taken, it does not necessarily mean that this witness is testifying in court. The deposition of a witness usually does not takes the place of his testimony in court. This may be for the purpose only of discovery, only for the purpose of gathering info. BUT this desposition can also serve as his testimony if the parties later on submit to the court his deposition as an evidence in lieu of his testimony in court. The taking of a deposition of a person can be done w/out the conformity or permission of the court. As long as the defendant has already filed an answer, parties can agree between themselves as to when and where the deposition of a particular person could be taken. All plaintiff needs to do if he is the interested party is to write to the defendant/his counsel. & asking him to be present during the taking of the deposition. It is only when the defendant has not answered when the taking of a deposition of a person needs permission from the court. Could be done before a notary public, before any person who can administer oath, that is agreement of the parties. RULE 23- DEPOSITIONS PENDING ACTION When may be taken (Sec.1) With Leave of Court After jurisdiction has been obtained over any defendant or over property which is the subject of the action Deposition of a person confined in prison BUT before an answer has been filed. (Issues are not yet joined and the disputed facts not yet clear)

Without Leave of Court After an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Scope of Examination (Sec.2) Deponent may be examined regarding 1. Any matter which is relevant to the subject of the pending action, 2. Not privileged 3. Not restricted by a protective order 4. whether relating to the claim or defense of any other party, including the...existence, description, nature, custody,condition and location of any books, docs , or other tangible things & the identity and location of persons having knowledge of relevant facts Examination and Cross-examination of Deponents (Sec.3) -May proceed as permitted at the trial under secss 3-18 of Rule 132 Use of Depositions (Sec.4) The deposition may be later considered as the testimony of the deponent in court. When the deponent invokes his viatory right, then his deposition can be considered as his testimony in court. In all instances, the deposition of a person can be used to impeach his person if he later goes to court as witness, like by prior inconsistent statements, where his testimony is consistent with the depositions that he has previously given.

1. At the trial or upon the hearing of a motion or an

interlocutory proceeding, any part or all of a deposition (so far as admissible under the rules of evidence) may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any of the ff 2. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds that: a) The witness is dead; b) The witness resides at a distance more than 100 km from the place of trial or hearing, or is out of the Phils, unless it appears that his absence was procured by the party offering the deposition; c) The witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or d) The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

3.

4.

Bar Notes on Civil Procedure (Dean J) Zyra C.

e) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and 5. If only part of a deposition is offered in evidence by a party; the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts 1. 2. 3. On notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the RP; Before such person or officer as may be appointed by commission or under letters rogatory; The person referred to in section 14

Commission or Letters Rogatory (Sec.12) Commission - is an instrument issued by a court to authorize a person to take depositions or do any other act by authority of such court or tribunal Letters Rogatory A request issued by a local court addressed to a foreign court, requesting it to take the deposition of a person who is within the territorial jurisdiction of that foreign court. It is not a mandate. Instead of using this, the local court can write to the Phil. Consul to a country and ask him to take the deposition of a person who is residing there Disqualification by interest (Sec.13) No deposition shall be taken before a person who is 1. A relative within the 6th degree of consanguinity or affinity 2. An employee or counsel of any of the parties; 3. A relative within the same degree, or employee of such counsel; or who is financially interested in the action Orders for the protection of parties and deponents (Sec. 16) After notice is served for taking a deposition by oral examination, (upon motion seasonably made by any party or by the person to be examined and for good cause shown) the court in which the action is pending may make an order that... 1. The deposition shall not be taken 2. It may be taken only at some designated place other than that stated in the notice 3. It may be taken only on written interrogatories 4. Certain matters shall not be inquired into 5. The scope of the examination shall be held with no one present except the parties to the action and their officers or counsel 6. After being sealed the deposition shall be opened only by order of the court 7. That secret processes developments, or research need not be disclosed 8. The parties shall simultaneously filed specified docs or info enclosed in sealed envelope to be opened as directed by the court 9. The court may make any other order which justice requires to protect the witness from annoyance, embarrassment, or oppression When a deposition is completed, the presiding officer is req by law to send the transcript of the proceedings to the court of origin. The sending of the transcript does not mean to say that the deponent is now considered as a witness by the court. He is not yet a witness in court. The transcript sent to the trial court will not be considered as evidence. For it to be so, it should be offered as documentary evidence by anyone of the interested parties. It is during the offer of the transcript as evidence when the trial court can rule on objections that were noted by the presiding officer. This time, the court will have authority to rule on the objections because the trial court is the one that is actually trying the case. It is the trial court which is aware whether the questions propounded and the answers given are objectionable.

Manner of taking depositions Presiding officer will have no authority at all to rule on objections. Even if he is a judge, because the presiding officer is not aware of what the issues are. The case is not pending before that court and therefor, the court doesnt know what the fight is about 1. 2. Upon oral examination Deponent, and counsels for plaintiff and defendant are present, where the lawyers will conduct a verbal direct, cross, re-direct, and re-cross examination Upon written interrogatories Lawyers/litigants do not have to be present during the proceeding. They have to prep a questionnaire in writing, sent to the presiding officer, who will read, get answers from deponent

Effect of Substitution of Parties (Sec. 5) 1. Does not affect the right to use depositions previously taken; 2. When an action has been dismissed and another action involving the same subject is brought afterwards between the same parties (or their representatives or successors in interest), all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therfor. Objections to Admissibility (Sec. 6) Objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (6, R24) Effecct of TAKING depositions (Sec. 7) A party shall NOT be deemed to make a person his own witness for any purpose by taking his deposition Effect of USING depositions (Sec. 8) The introduction in evidence of the deposition or any part of it for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition But this shall not apply to the use by an adverse party of a deposition as described in par (b) of section 4 of this Rule. Rebutting deposition (Sec.9) At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party Persons before whom depositions may be taken (Sec.10) Within the Philippines 1. Judge 2. Notary Public 3. Any person authorized to administer oarths, as stipulated by the parties in writing Outside the Philippines

Bar Notes on Civil Procedure (Dean J) Zyra C.

Record of examination, oath; objections; presiding officer cannot rule on the objections (Sec.17) 1. The presiding officer cannot sustain or overrule any objection by the counsels, unlike in court 2. If deponent refuses to answer the presiding officers question, he cannot be cited in contempt because presiding officer in the taking of a deposition is not the judge trying the case. 3. Remedy if the witness insists in not answering the question: the interested party should go back to the court of origin and ask for the issuance of an order directing the witness to give an answer to a particular question Motion to terminate or limit examination (Sec. 18) At any time during the taking of the deposition, on motion or petition of any party or of the deponent If it is shown that the examination is being conducted in bad faith or in such manner, as unreasonably to annoy, embarrass, or oppress the deponent or party The court in which the action is pending or the RTC of the place where the deposition is being taken may order the officer conducting the examination to stop taking the deposition, OR may limit the scope and manner of the taking of the deposition, as provided in sec. 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. Effect of errors and irregularities in depositions (Sec. 29) 1. As to notice All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. 2. As to disqualification of officer Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. 3. As to competency or relevancy of evidence Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. RULE 24- DESPOSITIONS BEFORE ACTION OR PENDING APPEAL. Perpetuation of testimony Deposition of a person can be taken even before a case is filed, there must be a petition filed for this purpose We have to ascertain the nature of a petition for perpetuation of a testimony to determine the court that has jurisdiction. Since it is not a real action, it does not involve title to or possession of real property. It is an action that is not capable of pecuniary estimation, so this petition is cognizable exclusively by RTC. There should be a petitioner or plaintiff but the rules do not require that a respondent or a defendant be impleaded. What is required is that we identify the parties who are expected to be adversaries if a case is going to be filed. Upon filing of a petition, this is in the form of an independent action, RTC will NOT issue a summons because there is no respondent who is formally impleaded. What the court will issue is simply a notice that will inform potential adversaries of the request for the perpetuation of testimony. So no judgement cannot be rendered because the only purpose is filing petition to perpetuate the testimony of the witness. If a case is already decided by the trial court and later on an appeal is brought to CA & SC, the trial court still excercises juris to allow the taking of a deposition pending appeal. So in appealed cases, it is not the appellate court that has the authority to order the taking of a deposition, it is still the court of origin that retains authority for the taking of a deposition pending appeal. Depositions before action; Petition may be filed by (Sec.1) 1. A person who desires to perpetuate his own testimony 2. A person who wants to perpetuate the testimony of another File a verified petition in the court of the place of the residence of any expected adverse party Notice shall be served on each person named in the petition as an expected adverse party Use of deposition (Sec.6) If a deposition to perpetuate testimony is taken under this Rule, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23 The parties are not compelled by the Rules to make use of the modes of discovery. EXCEPTIONS: Rules 25 & 26 Rule 18 states that in the pre-trial brief, the litigants should tell the court WON they are going to avail of all the modes of discovery but there is really no compulsion on their part Rule 25 & 26 appear to be an exception to this general rule because in Sec. 5 of Rule 25, there is a sanction imposed by the Rules if a party does not utilize Rule 25 RULE 25- INTERROGATORIES TO PARTIES

4. As to oral examination and other particulars.

Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition. 5. As to form of written interrogatories Objections to the form of written interrogatories submitted under sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized. 6. As to manner of preparation Errors and irregularities in the manner in which the testimony is transcribed or the deposition is

Bar Notes on Civil Procedure (Dean J) Zyra C.

If a party does not avail of the mode of discovery in Rule 25, the sanction is that he is precluded from compelling the adverse party to testify in this civil case. This is an exception to evidentiary rule that there is nothing that will prevent a plaintiff from compelling the defendant to be a plaintiffs witness. A defendant in a civil case can always compel the plaintiff to be a defendants witness, provided, he avails of Rule 25 When made: At any time after issues have been joined (when the responsive pleading has been served) What request may include: 1. Admission of the genuineness of any material and relevant document described in and exhibited with the request 2. The truth of any material and relevant matter of fact set forth in the request. Implied admission (Sec.2) Each of the matters of which an admission is requested shall be deemed admitted UNLESS, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot admit or deny those matters. The remedy of the party in thos case is to file a motion to be relieved of the consequences of the implied admission. The amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not been affected by the amendment. Effect of admission (Sec.3) Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose, cannot be used against him in any other proceeding. Withdrawal Allowed, whether express or implied Effect of failure to file and serve request for admission (Sec.5) A party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within his personal knowledge, shall not be permitted to present evidence on such facts. RULE 27 - PRODUCTION OR INSPECTION OF DOCUMENTS OF THINGS Motion for production or inspection; order (Sec.1) Applies only to a pending action, and the docs or things subject of the motion must only be those within the possession, control or custody of a party Production of documents affords more opportunity for discovery than a subpoena duces tecum. However, the rule is not intended for use as a dragnet for any fishing expedition Upon motion of any party showing good cause therefor, the court in which an action is pending may order any party to 1. Produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; 2. Permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. RULE 30- TRIAL Stages in the life of a civil case; Is the court mandated to observe these stages?

Interrogatories to parties; service thereof. (Sec.1) Under the same conditions in Sec. 1 of Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon them written interrogatories.. to be answered by the party served or, If the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. Answer to interrogatories (Sec.2) The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories Objections to interrogatories (Sec.3) May be presented to the court within 10 days after service thereof, with notice as in case of a motion Answers shall be deferred until the objections are resolved, At the earliest time possible Number of interrogatories (Sec. 4) No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. Scope and use of interrogatories (Sec.5) Scope shall be the matters mentioned in sec. 2 of Rule 23 The answers may be used for the same purposes provided in section 4 of the same Rule Effect of failure to serve written interrogatories. (Sec.6) Unless a party had been served written interrogatories, he may not be compelled by the adverse party 1. To give testimony in open court or 2. Give a deposition pending appeal This is a means to disqualify a witness. A litigant can avail of this provision by telling the other party that he cannot be compelled to be a witness because Rule 25 has not been satisfied. Prohibition in criminal cases: The prosecution cannot compel the accused to testify in court. No prohibition in civil cases. Although plaintiff can compel the defendant to be a witness in a civil case, when the defendant appears as a witness, he can always invoke the right against self-incrimination. But the invocation of the right against selfincrimination assumes that the witness is already in court, testifying. So in Rule 25, if the plaintiff has in mind requesting later on that the defendant take the witness stand as witness for the plaintiff, plaintiff should see to it that Rule 26 has been satisfied, that is, he must serve interrogatories on the defendant. RULE 26-ADMISSION BY ADVERSE PARTY Request for admission (Sec.1)

Bar Notes on Civil Procedure (Dean J) Zyra C.

1. Submission of pleadings (Filing of a complaint, Service of Summons, and an Opportunity for Defendants to File Responsive Pleading) Cannot be done away with, because a civil action is always commenced with the filing of a complaint Pre-trial As a General Rule: Rule 18 says that this is mandatory Exception: Under Rule 9, where a defendant is declared in default, the court may render a judgement by default right away or order plaintiff to present his evidence ex parte. There is no more pre-trial conducted by the court, after the ex parte trial, the court can now render the judgement by default. Trial There could be instances where a civil case after the first stage is completed, the court will jump to rendition of judgement Rendition of judgement Modes where a judgement could be assailed or challenged No reverse order of trial if defendant raises negative defenses If the defendant gives an affirmative defense, then the court can direct that a reverse order of trial be followed. For ecample, a creditor filing a complaint against a debtor for the recovery of an unpaid loan. If the defendant tells the court that he is not liable to pay the claim because this has long been paid. This is an affirmative defense. This is a judicial admission which cannot be rebutted generally by the admitter. There is no need for the plaintiff to prove matters that are already admitted by his opponent. The court can tell the defendant to present evidence that he already paid the loan. So, it is the defendant who first presents evidence to prove his affirmative defense of payment, and then, the plaintiff can present contrary proof that there was no payment made at all. disputes but legal questions. Triable issues should always refer to factual questions. Even if there are factual disputes, the court can still skip the trial stage, IF the litigants agree to submit stipulations of fact If the parties agree so, then there is nothing for the court to try anymore. It is just up to the court to render judgement to render judgement based on the facts stipulated by the parties.

2.

Reverse Order of Trial Generally, It is first the plaintiff who presents evidence, then the defendant who will present evidence on his defenses, his cross-claim, thrid-party complaint etc. Normal order: it is the plaintiff who first presents evidence because he makes affirmative allegations, since he is required to state ultimate facts. He will always be compelled to state that he has a right, which is an affirmative pleading. And then he follows this averment with an allegation that a right has been violated. Although there is an order of trial in Rule 30, this is preceded by the phrase unless otherwise ordered by the court. So trial court is given authority to follow a reverse order of trial

3.

4. 5.

Rule 30 Section 5: Order of trial (a) The Plaintiff shall adduce evidence in support of his complaint; (b) The Defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaints; (c) The Third-party defendant if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint; (d) The Fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; (e) The parties against whom any counterclaim or crossclaim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; (f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and (g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence. A trial is required only in Rule 30 if there are triable issues. The trial is limited to the facts in issue that are identified in the pre-trial order. If there is no triable issue, the court will simply render judgement The court can still do away with trial even if there are triable issues or a probandum in the pre-tiral order: Like when triable issues do not refer to factual

Agreed Statement of Facts Sec. 6 Agreed statement of facts. The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe.

In Rule 30, stipulations must be submitted by the parties in writing. But generally, in civil cases, those stipulations of fact made verbally or in writing are all admissible. Ex. Facts stipulated verbally which are binding on the parties: Those in Rule 18, during a pre-trial conference. All that the parties submit is a pre-trial

Bar Notes on Civil Procedure (Dean J) Zyra C.

brief which contains facts which one party will suggest should be stipulated on. Its course is usually held as if the case is on trial presided over by the court. The counsel or the parties themselves verbally tell the court WON they admit the existence of certain facts. So if there are two cases involving a common question of fact or law, the second case may have to be dismissed or dropped.

2. Consolidation proper There are at least two cases pending in court, involving a common question of fact or law. It is assumed that these cases are filed independently of one another. They also carry different docket numbers, although they may involve a common question of fact or law. In consolidation proper, the docket numbers will be retained The cases will be tried jointly, joint decision will be rendered. So their independent existence is not affected.

Stipulations of fact in criminal cases must alsways be in writing As welll as signed by the accused and his counsel. In a civil case, there is no need for the parties to reduce in writing the facts stipulated upon, or to sign them. The lawyer can sign this himself. The lawyer who represents his absent client is required to present a special power of attorney authorizing him to enter into a compromise, to agree to submit the dispute to alternative dispute resolutions or to enter into stipulations of fact.

Rule 30, Sec. 9: Judge to receive evidence; Declartion to clerk of court vs. Trial by Commissioner The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within 10 days from termination of the hearing. Trial should be presided by a judge who cannot delegate this to somebody else, except the Branch clerk of court who is a lawyer in three instances: In default proceedings In ex parte proceedings (Where defendantt is in default, plaintiff may be ordered to present evidence, Rule 9; Where defendant does not appear during the pretrial conference and does not authorize anybody to appear in his behalf, or does not submit a pre-trial brief, Rule 18) 3. Where parties agree that the branch clerk of court will be the one to preside over the proceedings for reception of evidence The branch clerk of court is not acting as a commissioner. Limitations in Consolidation of cases: The parties do not have to be the same. No need for same common cause of action. Usually where joinder is not allowed, esp where joinder of parties is not allowed as well The cases must be pending before the same court. If certain RTC has several branches and these cases are assigned to different branches of the court, there could be consolidation only with the conformity of the other branches concerned. These are coordinate courts. One judge cannot issue an order directed to another judge of coordinate jurisdiction. A consolidation of cases in different RTCs is possible provided that the order should come from the Supreme Court. 3. The test case method There are two or more cases pending in court, involving a common cause of action. The court will only try one of them: the one that has been tried. Its a test case on one of the pending cases.

1. 2.

RULE 31- CONSOLIDATION OR SEVERANCE Rule 31, Sec. 1: Consolidation Three modes of Consolidation of cases: 1. Recasting Consolidation involves a reshaping of all the cases involved. The two or more cases in court will be converted into one case. There is only one hearing and one decision. This will necessitate amendment to the pleadings and the dismissal of some of the cases and the retention of only one.

Rule 31, Sec. 2: Separate traits The opposite of consolidation is severance of claims. There is one case pending in court but the court will conduct separate trial for one of the claims mentioned in the complaint. If in one complaint there is an application for joinder of parties, there is the assumption that there are at least two causes that are embodied in one complaint. The court can order separate decisions. But everything depends upon the discretion of the court.

Bar Notes on Civil Procedure (Dean J) Zyra C.

In Rule 36, if the court renders several decisions that is involving one case, each decision that is rendered by the court is not appealable generally. There could only be an appeal from a several judgement rendered by the court if the court allows an appeal therefrom. The term reception of evidence means that the branch clerk of court can be so designated during that stage when the court is receiving evidence by both plaintiff and defendant.

RULE 32- TRIAL BY COMMISSIONER Instances when appointment of a commissioner is mandatory 1. 2. 3. 4. Trial by commissioner depends on the discretion of the court. Eminent Domain/Expropriation Partition Settlement of an estate of a deceased personin the trial of contested claims When the executor or administrator submits his accounting for hearing.

Section 3. Order of reference; powers of the commissioner. The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only and may fix the date for beginning and closing the hearings and for the filing of his report. Subject to other specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as it would if held before the court.

The plaintiff or defendant in accounting, the court does not really have to preside over the hearing for the approval of the executors accounting. This can be delegated to a commssioner

Trial by Commissioner under Rule 32 vs. Delegation to the Clerk of Courtunder Rule 30 The powers of a commissioner for the trial of a case are much broader than that given branch clerk of court who receives evidence under the instances in Rule 30. Rule 30 requires that the branch clerk of court must be a lawyer, trial by commissioner does not require that he be a lawyer. The issue tried or assigned to be tried by a commissioner may require the knowledge not of a lawyer but of another professional. In case of commissioner appointed by court, he also possesses the power to rule on objection in the course of proceedings, which is not given to branch clerk of court under Rule 30. Commissioner can rule on the objections, where objections are raised. He can act as if he were the trial judge for this particular case. Unlike the clerk of court who is merely mandated to receive all the evidence presented by the plaintiff. The authority witheld from a commissioner is the power to render a decision. This is the sole preogative of the judge. Although the caption is trial by commissioner, the trial is not limited to the trial of the facts in issue. The court can appoint a commissioner to try matters, issues that arise even after the judgement has become final and executory. During the stage of exec of judgement under Rule 39, the court can still validly appoint a commissioner to try new matters. This is not possible in Rule 30 where the court designates his branch clerk of court to receive evidence of the parties.

RULE 33- DEMURRER TO EVIDENCE Section 1. Demurrer to evidence. After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence.

Demurrer to evidence vs. Judgement on the pleadings In a judgement on the pleadings, there are no issues presented at all by the pleadings In demurrer to evidence, there are issues presented. In fact, the court has tried the case, the court has received the evidence by the plaintiff in chief. The court has given the plaintiff a chance to present his evidence and prove his claim.

One-sided trial in demurrer to evidence It is only the plaintiff who presents his evidence but after presentation of evidence the defendant believes that the evidence so presented is not enough to demonstrate the validity of plaintiffs complaint..he moves to dismiss

Motion on Demurrer to Evidence is Diff from a Motion to Dismiss under Rule 16 The motion to dismiss is presented by the defending party before he even files an answer.

Bar Notes on Civil Procedure (Dean J) Zyra C.

In demurrer, the defendant has filed an answer, in fact, the case has been tried by the court up to the point where the plaintiff has submitted his evidence in chief. of plaintiffs evidence, the plaintiff can alway appeal or challenge the decision of the trial court appeal on the part of prosec because of the principle against double jeopardy. It is a judgement of acquittal, which is not appealable. It is immediately executory

Insuffucuency of Evidence is the ONLY ground available under Rule 33 If the court denies the motion, defendant does not suffer any injury. He can still present his own evidence. If the court denies the defendants motion, the decision to be rendered is an ordinary judgement rendered by the court after the parties have presented their respective evidence. RULE 34- JUDGEMENT ON THE PLEADINGS Section 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may; on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved.

Defendants will lose the opportunity to present his evidence if appellate court reverses the decision of the trial court dismissing the complaint under Rule 33 If the court grants the defendants motion for dismissal based on insufficiency of plaintiffs evidence, the dismissal is a final order. It is a jdugement on merits. If the plaintiff decides to appeal, he could go to CA or SC. The CA will now review the case based purely on the evidence presented by the plaintiff because the defendant has not presented any evidence at all. CA may affirm trial court ruling If the CA disagrees with the trial court, the CA is required to render its own judgement reversing the decision of trial court The defendant will be prejudiced. He will lose the opportunity to present his evidence in support of his evidence. So, when the defendant avails of a demurrer to evidence, he asumes the risk that if the matter is presented before the CA and if it does not affirm the judgement of the trial court, the defendant would have lost his opportunity to present his own evidence.

It is rendered without conducting a trial or even a pre-trial. The reason for this is because the (1) pleadings do not present any issue at all for trial OR (2) the answer filed by the defendant asmits the essential or material allegations in the complaint. Although there is a denial contained in the answer, the denial is not a specific one. It is general, which is an admission of all ellagations in the complaint. There must first be an answer in order to avail of Rule 34. If he has not, the proper judgement is by default.

RULE 35- SUMMARY JUDGEMENTS Partial Summary Judgement is merely an Interlocutory order A summary judgement must be a complete one, it should resolve all issues presented to the court for resolution. If it only decides part of the issues submitted to court, it is simply a partial summary judgement, it is merely an interlocutory order. This cannot be the subject of an appeal. It cannot be challenged by an appeal by the defeated party.

Demurrer to evidence in A Civil Case If the defendant wants to preserve his right to present evidence before the trial court, he must ask permission from the trial court before filing a motion for judgement on demurrer to evidence Prior leave of court is not necessary before the defendant could avail of demurrer Demurrer us always the product of a motion coming from a defendant. There is a need for a correlative motion from the defendant If the court dismisses the complaint for insufficiency A Criminal Case The accused simply goes ahead and files this motion for demurrer to evidence without first asking permission from the court, and the court denies his motion, he would lose the opportunity to present his evidence before the trial court If the defendant files demurrer and it is denied by the court, the defendant can still present his evidence before trial court The court can render a judgement motu proprio. If it believes that the prosecution is not adequate A judgment on demurrer cannot be assailed by

Rule 35 Sec. 1 Summary Judgement for claimant Sec. 2 Summary Judgement for defending party Judgement on the pleadings- on the motion of the Plaintiff Judgement on demurrer to evidence-on motion of Defendant Summary judgement-on motion of Either Parties If summary judgement is moved by plaintiff, the assumption is that the answer of defendant has already been filed. But if this is from the motion of defendant, the rule does not require that the defendant must have already filed his answer.

Rule 35 Sec. 3: Motion and Proceedings thereon;

Bar Notes on Civil Procedure (Dean J) Zyra C.

Sec. 5: Form of affidavits and Supporting Papers In summary judgement, there is an issue presented in the pleadings or in the pre-trial order. But the court foregoes with the regular trial or in the pre-trial order: BECAUSE the court is convinced is not a genuine issue. It is the burden of the movant to show that the issue is not genuine. This would necessitate presentation of evidence, which will also be conducted in a summary hearing. It could be proven by affidavits, or by depositions, or by any other evidence gathered by modes of discovery. There must be a motion filed by either the plaintiff or defendant before the court could render validly a summary judgement. And there is a 10-day period of prior to be given to adverse party. Compromise may still be voidable if there is fraud, intimidation, violence or falsity of documents involved.

RULE 36- JUDGEMENTS, FINAL ORDERS & ENTRY THEREOF Rule 36, Sec. 1: Rendition of judgements and final orders If the judgement rendered by a court does not meet the essentials enumerated in Rule 36, which are also the essentials mentioned in the Constitution, that judgment is null and void. If the judgement is null and void, it could be the subject of a collateral attack.

Motion for judgement on the pleadings Must comply with the requirements of Rule 14 There must be a prior 3-day notice upon the adverse party. This also the same rule that governs a motion for judgement on demurrer to evidence.

Essential requisites of a valid judgement It is in writing, prepared, personally and directly by the judge, contains his findings of facts and his findings of law, signed by the judge and served and filed with the clerk of court, then that judgement is a valid one. If it is a valid judgement, it cannot be attacked collaterally. It can be attacked directly, not by reason of lack of its essentials in Rule 36, but by reason of some external factors like fraud, accident, mistake or excusable negligence.

Judgement upon Compromise Type of special judgment not treated independently by separate rules in the Rules of Court. This is already the subject of Title 14 of the Civil Code speaks about compromises and arbitration. It is a part of substantive law. Judgement on compromise is immediately executory. So upon the signing of the compromise agreement is final and executory. Once the parties enter into a compromise, it is a contract between them and has the effect of res judicata. There is nothing which will stop the contending parties from entering into a compromise agreement to put an end to their differences, even after a judgement has been rendered, whether by the inferior courts, by the CA or the SC. The parties can always change a decision rendered by a court of justice, even if that decision has become final and executory by the simple expedient of entering into a compound agreement. The judgement is considered novated when it is inconsistent or in direct conflict with the compromise agreement. This is a unique feature. The parties have the complete freedom to enter into a compromise at anytime for the purpose of putting an end to the litigation. The parties can simply enter into a compromise and then agree not to submit it to the court for its approval. Even if this stems from a litigation between the parties, even if a court does not render a judgement based on the compromise. Procedural advantage of judgement upon a compromise (entered into and submitted to the court for its approval). If there is breach of any of the conditions of the judgement approved by the court. The innocent party can always go to court, the innocent party can always go to court and ask for the execution of the judgement under Rule 39. Execution is possible because there is a judgement rendered by the court, which is immediately executory.

Can a judge decide a case which was fully heard by him In a sala where he was previously assigned? According to the old Judiciary Act, a trial judge who is permanently transferred from one court to coordinate court can validly decide a case that he has left behind as long he has fully heard the case. If the transferred judge only heard the case in part and the other portion was heard by the new judge, the parties could still agree between themselves submit to the old judge the case for decision. But if he is transferred to a higher court or leaves the judiciary permanently, then he no longer possesses the authority to render a decision of a case, although tried by him in full. The old Judiciary Act is still in force in so far as its provisions are not in conflict BP 129 (which does not cover this situation).

Are the judgements which are not strictly adjudication on the merits, but are considered as final orders or judgements? 1. Rule 17. Res judicata dismissal governed by the twodismissal rule, although it does not discuss the rights and liabilities of the parties as presented in the pleadings. Rule 36. A dismissal by reason of nulle prosequi or failure to prosecute is a final order of judgement Rule17. Failure of a plaintiff to obey an order of a court or to comply with the provisions of the Rules.

2. 3.

Bar Notes on Civil Procedure (Dean J) Zyra C.

4. Rule 18. Dismissal for failure of plaintiff to appear during the pre-trial or to submit a pre-trial brief. Res judicata. Anyone of the parties could ask for this remedy.

Several Judgements; Separate judgements Common Element-NOT Appealable Section 4. Several judgments. In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. Section 5. Separate judgments. When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. Not appealable because the judgement does not entirely dispose of the whole litigation. After rendition of this judgement, the court will still try the other matter submitted for decision. If the losing party desire to appeal from these judgements, the losing party must get permission from the trial court to carry out this appeal. If the losing party does not desire to appeal, he has to wait until the court finally renders the other decision that will dispose of the entirety of the case.

AVAILABILITY OF REMEDIES: Depends on Time Rule 37- available before a judgement becomes final and executory. Remedies are available during the existence of the period to appeal. Rule 38-available where the judgement has become final and executory. Nothing is mentioned in the rule about this but it also states that this remedy becomes available after the order or the judgement is entered, which is done after the lapse of the period to appeal, in other words, the assumption is that the judgement has become final and executory. Both 37 and 38 are prohibited under Summary Procedure SC: ;liberal interpretation of the Rules will allow us to consider the petition for relief (although improperly filed) as a motion for new trial. A motion for new trial and for relief from judgement are founded practically on the same grounds, which are fraud, accident, mistake and excusable negligence. The only difference is that in petition for relief from judgement, newly discovered evidence is not a ground.

RULE 37- NEW TRIAL OR CONSIDERATION Sec. 1: Grounds of and period for filing motion Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law. Section 2. Contents of motion and notice thereof. The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party. A motion for new trial shall be proved in the manner provided for proof of motion. A motion for the cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence. A motion for reconsideration shall point out a specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law making express reference to the testimonial or documentary evidence or to the provisions

Special Judgements Special kinds of jdugements which deserve particular attention by the Rules because their rendition does not necessarily comply with the procedure in the Rules of Court before a court could render a judgement. Judgement on demurrer to evidence, Judgement on the pleadings, and Summary Judgements

Reopening of a case SC: The remedy is not expressly recognized by the Rules of Court for civil cases. It is a product of practice or jurisprudence Statement not entirely accurate: In Summary Procedure, one of the prohibited pleadings is the reopening of cases; in CrimPro, court can reopen the case even if the accused has been convicted as long as the judgment of conviction has not become final and executory. Since it is not expressly recognized by the rules, no grounds could be determined. But according to SC, this should be done before the court renders a decision. It is available after the termination of the presentation of evidence, and the court has directed that the case is now submitted for decision.

Bar Notes on Civil Procedure (Dean J) Zyra C.

of law alleged to be contrary to such findings or conclusions. A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. There must be a notice for hearing and there must be a service upon the adverse party. A motion under Rule 37 cannot be heard ex parte.

Disadvantages of a Pro-Forma Motion 2nd motion for new trial: Sec. 5 There could be a second motion for new trial as long as this is founded on a ground different from that ground upon which the first motion for new trial has been founded. But there is an absolute prohibition against the filing of a second motion for reconsideration by the same party. If a defeated party files so, this will not interrupt the running of the period to appeal. But there is no prohibition to the filing of a second motion for reconsideration of an interlocutory order; only the filling of a second motion for final orders or judgements are prohibited. One can expect a denial. But the more serious consequence is that the pro forma motion will not interrupt the period to appeal. So it is possible that by the time the court denies the motion which is pro forma, the period for appeal would have already expired. Judgement will now be entered, it has become final and executory.

Sec. 6: Effect of granting of motion for new trial: effect of granting of motion for reconsideration If a new trial is granted in accordance with the provisions of this Rules the original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, insofar as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. If the motion for reconsideration, then the court does not have to conduct a trial, it can simply amend the decision or the final order that it has rendered. When a decision is amended by the court, this is an entirely new decision. It supersedes the original decision. So a new period of a appeal will have to be given to the adverse party.

Fraud in Rules 37 &38 The rules do not expressly tells us what fraud these rules contemplate. But in Rule 37 there is a qualifying phrase which which says that it is a fraud which ordinary prudence could not have guarded against and which could probably impair the rights of a party. This refers to an extrinsic fraud. It is an act of dishonesty which prevents the other party from trying the case. The adverse party is not given a chance to appear in court and to present or prove his stand. An intrinsic fraud is that which ordinary prudence could guard against because it is a kind of fraud that is committed during the trial of a case. Lawyers are given the freedom to commit acts of intrinsic fraud during the trial of a case, because if all the acts committed by a lawyer will be made as a ground for new trial, the case will never end. One intrinisic fraud for the plaintiff could be neutralized by the intrinsic fraud committed by the lawyer for defendant. The discovery later on by the adverse party that one party has presented a forged doc or has presented in court perjured witnesses will not be a ground for new trial either under fraud or under newly discovered evidence.

Section 7. Partial new trial or reconsideration. If the grounds for a motion affects only part of the issues, or less than of the matter in controversy, or not all of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. Section 8. Effect of order for partial new trial. When less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial. (7a) Sec. 9: Remedy against order denying a motion for N/R The denial for a motion for N?R is not interlocutory: it is a final order. But it is not appealable. If a judgement is one on the merits, it is final in the sense that the issues are resolved by the court, one of the remedies available to the aggrieved party is to appeal from that judgement, without filing a motion for N?R. But if chooses to files such motion, and this is denied thereafter, he can appeal from the judgment itself as long as the period to appeal is still running.

Forgotten Evidence If the evidence was already available to a party and he was not able to present it through inadvertence or negligence of his counsel, that evidence will not be considered as newly discovered evidence. It will simply fall within that concept of forgotten evidence, which is not a ground for new trial. Newly discovered evidence- that which was not available to a party at the time of trial

RULE 38- RELIEF FROM JUDGEMENTS, ORDERS OR OTHER PROCEEDINGS

Sec. 2: Contents of motion for N/R and notice thereof Pro Forma Motion.If a motion for N/R does not comply with the requirements in Rule 37, as welll as the requirements in Rule 15

To avail of Rule 38, there must be a final and executory judgement Usually, when a judgemnt has become final and executory, it becomes immutable, it cannot be changed by the courts. That is now the law between

Bar Notes on Civil Procedure (Dean J) Zyra C.

the parties. Even if the judgement is incorrect, as long as it has become final and executory, this is now the law that will govern the relationship of the parties. But Rule 38 is an extraordinary remedy because it challenges a judgement that has become final and executory. Grounds: FAME appealable. The remedy of the petitioner is under Rule 65. Rule 38 is not limited to judgements or final orders, but also includes any other proceeding taken by a court. This includes a petition for relief from the denial of an appeal

Petition for relief is not available where appeal was not taken; Sec. 3: Time for filing petition: Contents and Verification Basic rule: if the aggrieved party had a chance to appeal but he failed to avail of this remedy, the petition for relief will not be available to him. The petiton for relief is not designed to revive the remedy of appeal which is lost through the inaction or negligence of the aggrieved party. The grounds for a petition for relief must be interpreted strictly- fraud, accident, mistake, excusable negligence and together with the time frame in Rule 38, within 60 days from notice and within 6months from entry of the final order. If the 6th month period from entry has already expired, a petition for relied cannot be entertained by the court anymore. After the expiration of the 6th month period, the only remedy left is for the annulment of a judgement.

Petition for relief is not an independent action but a continuation of the old case Rule 38 says that the petition for relief must be filed in the same case. So the same docket number is used by the court in deciding the case. And it must be filed with the same court that decided the case. The adverse party in this petition for relief if filed before an inferior court, cannot assail its jurisdiction.

No issuance of summons under Rule 38 Another proof that Rule 38 is not an entirely new and independent case. It actually precludes the issuance of a summons upon its filing. What the court does if it finds the petition to be sufficient in form and in substance is to issue an order directing the respondent to file a comment. If the respondent does not file a comment, he cannot be declared in default because, a petition for relief is not an independent action or a new one. The court willl simply proceed with the hearing of the petition to determine WON there is merit in the stand taken by the petitioner.

Section 7. Procedure where the denial of an appeal is set aside. Where the denial of an appeal is set aside, the lower court shall be required to give due course to the appeal and to elevate the record of the appealed case as if a timely and proper appeal had been made. Void judgements

Section 5. Preliminary injunction pending proceedings. The court in which the petition is filed may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party, conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of the issuance of such injunction or the other proceedings following the petition, but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon, the property, of the petitioner.

Sin Pertuito Judgements, which on its face is a void judgement. One does not have to file a petition for relied. All one has to do is to attack the judgement right away, or if the judgement is sought to be implemented, it could be attacked collaterally. Judgement where there are no findings of fact and conclusions of law. If the court only writes the dispositive portion of the decision without correlative findings of law, on its face that judgement is null and voud.

Sec. 6: Proceedings after the answer is filed After the filing of the answer or the expiration of the period therefor, the court shall hear the petition and if after such hearing, it finds that the allegations thereof are not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall set aside the judgment or final order or other proceeding complained of upon such terms as may be just. Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. In a petition for relief, the court is given discretion to dismiss the petition outright or to give it due course. If the court thereafter denies the petition or dismisses it, the denial is a final order. But it is not

RULE 39- EXECUTION, SATISFACTION AND EFFECT OF JUDGEMENTS Execution upon Judgements or Final Orders (Sec.1) This rule carries out into effect the rights of the victor in a civil action, the rights of the winning party. Execution and satisfaction of judgement do not always have to go togather. Like when a judgement debtor voluntarily pays the award to the judgement creditor. The issuance of a writ of execution is not a guarantee that the judgement will be satisfied. The execution of judgement is a mode to compel compliance of the award. Where there is voluntary compliance, there can be satisfaction of the judgement. What court will execute a judgement assuming that the case has been appealed from one higher court to another court?

Bar Notes on Civil Procedure (Dean J) Zyra C. The general rule is that it is the court of origin that Rule 39 does not fix the prescriptive period for the
should execute the judgment. The records of the case will have to be returned to the court of origin for the purposes of execution. In exceptional cases, the appellate court could issue a decision affirming the judgement appealed from, together with the affirmation, saying that such decision is immediately executory. So, it is ALWAYS the court of origin that will execute the judgement even if the case has undergone several appeals. There is a time lag that may enable the judgement debtor to hide his properties or to convey his properties in order to defeat the decision. But under Rule 39, once the decision of the appellate court has become final and executory, a certification that the judgement has been entered will be enough proof in so far as the trial court is concerned that it must execute the judgement. The trial court does not have to wait for the records to be returned to it before it could act favorably on a motion for execution.

execution of a final and executory judgement. But under the Civil Code, this period is a 10 years from the entry of judgement. The Rules of Court has divided this into two parts: For the 1st half, execute through a motion for execution, and then the 2nd half, the judgement could be executed through the filing of an independent action for the revival of the decision. The first five-year period is not really fixed, according to the SC. This could be extended if (1) the judgement-creditor fails to obtain the execution or (2) the court fails to issue a writ of execution and the delay is traceable to the fault or the conduct of the judgement-debtor. As long as there is a motion for execution filed within the 1st five years, the court can act on the motion, even after the expiration of the five-year period. What is important is that the judgement-creditor manifests his desire to aask for the execution of the judgement within the 1st five years

Under what grounds may the court properly deny or delay the execution of a final and executory judgement? Execution is a matter of right on the aprt of the winning party. The court has no power to delay or deny the motion. It is duty-bound to approve it. Unusual instances where the court of origin could properly deny the execution: (Where any of the ff. Is filed) 1. Motion to quash a writ of execution. 2. Where a petition for relief of judgement is filed, accompanied by a temporary restraining order of a writ of preliminary injunction. 3. By an act of Novation of a judgement by the parties -Even if a judgement has become final and executory, even if the principle of res judicata is already available to the contending parties, they are still given the freedom to novate it, so that it can no longer be enforced. It will be rendered moot and academic . -SC: The new arrangement and the decision of the court should really be in conflict with one another, that is, they cannot stand together. If the judgement has become final and executory, could the court of origin motu propio issue a writ of execution? No, it can only issue such upon motion by the winning party. A motion of execution should be served also upon the judgement-debtor, the aggrieved party, in order to provide him a chance to file an opposition to the granting of this motion. Is an order of the court granting or denying a motion for execution a final or executory order? Remedies of the adverse party. The granting of a motion is ministerial on the part of the court, the remedy of the judgement-creditor is to file a petition for mandamus, under Rule 65, to compel the performance of an act, which is purely ministerial. The granting of a motion for execution maybe treated as a final order, not merely interlocutory. But under Rule 41, there can be no appeal from an order of execution. Appeal will NOT turn out to be an effective remedy, because this will unduly delay the execution of a final & executory judgemnet. Execution by motion or by independent action (Sec.6) Judgement creditor should as for an execution within 5 years from entry of judgement. The judgement could not be executed through the filing of a motion but through an independent action, that is, before the lapse of the prescriptive period.

Revival of judgement under Sec. 6, in relation to Sec. 34 After the expiration of the five-year period, Sec. 6 talks about the enforcement of the decision through an independent action, jurisprudence calls the action as one to revive a judgement. Sec. 6 Sec. 34 Assumption that this is executed within the 1st five years None Present Could be carried out through... An independent action The filing of a mere motion in court The party who files is the motion is After the lapse of the fiveThe highest bidder during year period, the plaintiff is the public auction sale. the judgement-creditor Rationale: Because he is himself, or his assignee or deprived of the property he his successor in interests. has purchased at public auction. Execution of judgements for money, how enforced (Sec. 9) Execution of judgements for specific acts (Sec.10) Execution of special judgements (Sec.11) Can the judgement-debtor who refuses to comply with an award be cited for contempt? The manner by which these judgements could be executed would depend on the tenor of the dispositive portion contained in the court decision. Generally, if the judgement-debtor refuses deliberately to comply with an award given in a final and executory judgement, he cannot be cited in contempt of court. Contempt of court is not a remedy to enforce a judgement. Exceptional instance: In the provisional remedy of pendente lite. A judgement for support can never become final and executory. This can be changed anytime. Rationale: The entitlement of support on the part of the petitioner will depend on two factors: (1) the ability of the adverse party to give support and (2) the needs of the petitioner. Judgements not stayed by appeal (Sec.4) General rule: If a judgement is not yet final and executory, the court cannot execute a judgement. Exceptional circumstances: 1. Support 2. Receivership 3. Accounting 4. Injunction 5. Special civil action of Unlawful detainer and Forcible entry Discretionary Execution (Sec. 2)

Bar Notes on Civil Procedure (Dean J) Zyra C.

Trial court, the court of origin can order the execution of a judgement pending the appeal, notwithstanding the perfection of the appeal. Trial court excercises residual jurisdiction over certain matters Period of redemption is ONLY one year from the registration of the deed of sale. But if the parties extend to 3 years, the legal redemption is converted into a conventional one, by agreement of the parties. But if the period of redemption will be 6 months from the deed of sale, the situation is not allowed.

Filing of a bond by the judgement-creditor is not a sufficient reason to justify The ability and willingness of the judgement-creditor to file a bond shall not be a special reason to justify the court in granting execution pending appeal. Otherwise, every creditor will now ask for execution simply because it is willing and able to file a bond. There must be a special reason that is given by the court in granting a motion for execution pending appeal. Stay of discretionary execution (Sec.3) A judgement-debtor is given a remedy in order to stop the execution. He may file as upersedeas bond, which will stop execution pending appeal. He cannot file an appeal from an order granting an execution. The remedy is Rule 65, to file a petition for certiorari or prohibition in order to set aside the order of the court allowing execution pending appeal. Satisfaction by levy (Sec.9b) When the award is for the payment of money, and judgement-debtor refuses to voluntarily satisfy the award, the remedy of the court and of the judgement-creditor is to compel the debtor by making a levy on the property of the judgementdebtor. A levy should always be accompanied by an auction sale of the property. If the levy is unlawful or void, the public auction sale will also be void, like when the properties are exempt from execution. Even if the properties are sold thereafter, the sale will also be void, the highest bidder at the public auction will not acquire any right whatsoever. So, a valid public auction sale presumes that the levy on the properties was also valid right from the beginnning. Levy on execution of Real Properties vs. Personal Properties Real Properties: The sheriff or the court will not actually take over physical possession of the real property. The sheriff will just go to the office of the Register of Deeds and annotate the fact that a certain levy has been made on the real property. Personal Properties: the sheriff will take over physical possession, the judgement-debtor will be deprived of the use and enjoyment of a personal property capable of manual delivery. Garnishment of debts and credits (Sec.9c) If the property of debtor is a bank account, there will be forced intervention. When the bank account of the judgement-debtor is garnished by the court, the bank in effect becomes a forced intervenor, the bank holding the deposit of the judgement-debtor is subject to further diposition of he case by the court. Auction sale of real and personal properties; Right of redemption Real property: There is always a right of redemption. Like when the price genterated during the public auction sale is unconscionably low. Personal property: The highest bidder cannot get the car if the court conisders the priice an unconscionably low. Time and manner of; and Amounts payable on; Successive Redemptions; Notice to be given and filed Redemption laws should always be interpreted liberally in favor of the judgement-debtor

Who may redeem real property so sold Aside from the judgement-debtor, other persons may also enjoy the right of redemption. Like, other creditors who hold a lien subsequent to that of the attaching creditor could also redeem the property, and the assignee of the judgement-debtor. Principle of successive redemption: there could be redemption one after the other, as long as the person who has last redeemed the property is not the judgement-debtor. The successive redemption could be had even after the expiration of the 1-year period of redemption. Judgement obligee as purchaser The judgement creditor could buy or participate in the auction sale of his debtors property. If he turns out to be the highest bidder, he is required to deliver the purchase price to the court. If the highest bid is equal to the amount of the claim, then there is really no more need for him to deliver the purchase price to the court. If the bid of the judgement-creditor is exactly the same as the award given to him, he may still be required to pay the purchase price if there is a third party claim by a third person. Immediate payment on demand (Sec.9, a) If there is going to be a peyment by check or delivery of cash, then that check should be made payable to the order of the judgement-creditor, not drawn payable to the order of the sheriff, or even drawn payable to the order of the cashier of the court. If there is payment by check, it must be drawn payable to the order of the creditor. And if the check is delivered to the clerk of the court, he should see to it that the funds are turned over the creditor within a very short period of time. But nonetheless, if the check is drawn payable to the order of the sheriff, and hell run away with the money, that will not be the fault of the creditor, the loss will be shouldered by the debtor. Independent action to revive a judgement under Section 6 may be filed in a court other than that which decided the case The independent action to revive a judgement will not necessarily be filed with the same court that decided the case. This should be filed with the RTC because this is a matter which is not capable of pecuniary estimation. Thus action is considered as a new one, which must satisfy also the requirement of venue in Rule 4, so that if the parties in the meantime, have changed their respective residences, then the independent action to revive the judgement must be filed in the place where the plaintiff or defendant now resides at the option of the plaintiff. A revived judgement will be treated as a new judgement. It can be enforced within the prescriptive period of 10 years under the Civil Code. Revived judgement- a new decision, there is no limit to the number of revivals that should be had concerning the same decision Proceedings where property is claimed by a third person (Sec. 16) Terceria, a third party claim. It is a claim submitted by a stranger to the case in the form of an affidavit telling the court that he has an interest, a title over the property that has been levied upon by the court.

Bar Notes on Civil Procedure (Dean J) Zyra C.

Once the sheriff receives this affidavit, it is his duty to lift the levy over the property. If he insists on carrying out the levy, he should demand from the judgement-creditor that he file a bond so that there will be ample protection in favor of the third party claimant if the sheriff will go ahead with the auction sale of that property. properties of the judgement-debtor, which the court may have no knowledge. If the court is satisified that this income is more than enough to support himself and his family, then the court may issue an order directing the judgement-debtor to pay his obligation on installments. Examination of the debtor of the judgement-debtor. If they really owe the judgement-debtor certain amounts of money which are not exempt from levy on execution, the court can issue an order allowing the judgement-creditor to file a separate complaint for the recovery of these accounts. Appointment of a receiver of properties belonging to the judgement-debtor. This is a provisional remedy, not availed of during the pendency of a case, but made even after the judgement rendered by the court has become final and executory.

2.

Can the 2nd court before which the complaint has been filed by the third party claimant issue a restraining order or a writ of preliminary injunction to stop the sheriff from selling the property? Yes, this will not be an undue interference. Because the levy by the sheriff over a property of a stranger is not a valid levy. For a levy to be valid, the property must belong to the judgement-debtor. If the property belongs to another person not involved in the litigation, the levy is not valid. The third party can always seek the recovery of his property even if this property has been sold at public auction to a highest bidder. The highest bidder cannot say that he is a buyer in good faith, because the sheriff will always be notifying these prospective buyers at public auction that there is a third party claim that has been filed with the court. There is always a notice of the existence of this hird party claim. The court which issued the writ of execution is without jurisdiction to resolve the issue of ownership Because this is not the issue that is raised in the pleadings between the parties. This is a matter that arises after the judgement has been entered, long after the judgement has become final and executory. Recovery of price if sale is not effective: revival of judgement (Sec.34) If the third party claimant succeeds in recovering the property in an action, the recourse of the highest bidder at the public auction sale is a motion for the revival of that judgement so that he can recover the purchase price that he has paid from the judgementcreditor. Or he could ask for the revival of the judgement in his own name, so that he will be stepping into the shoes of the original judgement creditor. Right of redemption can be the subject of levy on execution Redemption is a property right and it can be conveyed by the judgement-debtor. It could also be the subject of a levy on execution, but not by the same attaching creditor. If the attaching creditor is allowed to impose a levy on the debtors right of redemption, in effect we are going to negate the idea of giving a redemption to the judgement-debtor. Execution of judgements for specific act Since the award is only for the delivery of real property, the court will simply issue an order directing the defendant to vacate the property and turn over the possession thereof to the judgementcreditor. If the judgement-debtor refuses to vacate the property, this is not a ground for contempt. All that the court will do is to tell the sheriff to throw out the judgement-debtor off the premises. Personal property-sheriff will get hold of it and deliver it to judgement-creditor Examination of judgement obligor when judgement is unsatisfied (Sec.36) Additional remedies, where there is levy on execution but the sheriff reports to the court that the judgement has not yet been satisfied in full. 1. Examination of the judgement-debtor by the court. This pertains to inquiries as to the income and other

3.

Effect of judgements or final orders (Sec. 47) Res judicata is a principle that bars the filing of a subsequent case by the same party against the same party founded on the same cause. This a public policy principle: when a judgement has become final and executory, it becomes immutable. Even if it is clearly erroneous, it can no longer be changed by the court. Clarificatory judgements Rendered by the court even after the judgement has become immutable, with the purpose of explaining any doubt or ambiguity that appears in the original decision of the court. Is there a conflict between the principle of res judicata and an independent action to revive a judgement or to annul a judgement under Rule 47? In an independent action to revive a judgement will not violate the principle of res judicata. Identity of causes of action will not be satisfied because the cause of action or the subject matter is the revival of a dormant decision. It is different from the cause of action in the first case. In an action to annul a judgement, no violaion of principle of res judicata. There is no identity of causes of action. The purpose in a petition to annul a judgement is to set aside or to annul a judgement that is voidable, so that the court could declare it void. Essential elements of res judicata 1. There must be a competent court- a court with competent jurisdiction over the subject matter and over the person of the parties. Its the entirety of the jurisdiction, over the subject matter and over the person of the parties. 2. The decision must be an adjudication upon the merits. The court is expected to render a decision resolving the issues presented in the pleadings or in the pre-trial order as the case may be and the decision is based on the evidence presented by the parties. There may be orders which do not fall within the concept of adjudication of merit which could also be constured as falling within the concept of res judicata, as long as these orders become final and executory. Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to

Bar Notes on Civil Procedure (Dean J) Zyra C.

another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; uses ordinary appeal questions of fact Legal question vs. Factual Question Legal Question Factual Question When the only duty of When the appellate court will the appellate court is have to evaluate the evidence to determine the law presented by the parties, and applicable to a given the appellate court is bound state of facts, that is, to determine the truth or these facts are falsity of certain facts, and admitted thereafter determine or hypothetically or the ascertain the law applicable admission is genuine The Step-Ladder Approach General proposition: We follow a system of ladderized appeal. From an inferior court, we appeal to the RTC, and the CA and then to the SC When is an appeal a matter of right and when is it not? Usually, the first appeal made by the aggrieved party is a matter of right. The succeeding appeals will only be considered a matter of discretion on the part of the appellate court. In SC, when it comes to civil cases, even the first appeal to it is not a matter of right. Appeals to it is always a matter of discretion. In SC, when it comes to some criminal cases, like when the penalty imposed is death, the appeal is automatic. That is a matter of right on the part of the accused. However, when the penalty imposed is life imprisonment, the appeal is not a matter of discretion on the part of SC because the mode of appeal is by notice of appeal, not by way of a petition for review on certiorari. Where to appeal, Sec. 1 If a case originates from an inferior court, its decision should be appealed to the RTC which has territorial jurisdiction over the inferior court of origin. When the inferior court excercises its Delegated Jurisdiction to try Land Registration or Cadastral cases, appeal from its decision or final order may be taken directly to SC or CA as the case may be. As a general rule, from an inferior court, appeal should always be made to an RTC. But this may be bypassed, as exception to the rule in BP 129. Justification for this exception is that, when an inferior court decides a case in the excercise of its delegated jurisdiction is such cases, it will be considered as if it were a RTC. An appeal from the inferior court be brought to the RTC even if the only issue involved is a question of law. This does not conflict with the constitutional provision that it has the power to review, reverse, modify, affirm on appeal decisions of inferior courts (review what cases). BECAUSE this Consti provision does not vest Exclusive Appellate Jurisdiction on the SC to determine questions of law raised on appeal. SC has exclusive appellate jurisdiction over questions of law only if that decision is rendered by the CA or RTC. How to appeal: Sec.3 From a decision or final order of an inferior court, the appeal must be made to a RTC. This is an ordinary appeal-a notice of appeal coupled in certain instances with a record on appeal. Copies will be served to adverse party The notice of appeal shall indicate:

(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and

(c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.

Sec. 48. Effect of foreign judgments or final orders. The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and

(b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. RULE 40- Appeal From MTCs to the RTCs Appeals is not a Constitutional Right It is a statutory right, so SC could fix a rule that in certain instances, there will be no appeal taken from certain judgements or final orders. Rule 41: general rule is that from a final order or judgement, there could be an appeal except in instances where the law or the SC has declared that no such right exists. So in Rule 41, there are several instances where a final order is declared to be not appealable, but the appropriate remedy is Rule 65. Erroneous Appeal vs Improper Appeal Erroneous Appeal Improper Appeal The mode of appeal taken The mode of appeal taken by the appellant is not the by the appellant is the correct mode correct mode BUT he raises the wrong issue that could be decided by the appellate court Like when the mode of Like an appeal to the SC appeal authorized by the which should be taken by Rules is a petition for a petition for review on review, but the appellant certiorari, but he raises

Bar Notes on Civil Procedure (Dean J) Zyra C.

1. 2. The parties to the appeal The judgment or final order or part thereof appealed from 3. The material dates showing the timeliness of the appeal. A record on appeal is required only in special proceedings and in other cases of multiple or separate appeals. provided that the provisions of Rule 41 will apply to Rule 40 as long as there is no conflict between the two. Perfection of an Appeal: Rule 41, Sec. 9 Effect thereof: Rule 42, Sec. 8 A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time. When does the court of origin lose jurisdiction over the case 1. In appeals by notice of appeal, upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. 2. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the appeal of the other parties. Residual jurisdiction reders to a courts authority to rule on certain matters even if the appeal is already perfected. Even if the appeal is now within the jurisdiction of the appellate court, the trial court still retains jurisdiction to decide certain matters... Matters affecting the rights and interests of the parties not related to the issues raised on appeal. To approve a compromise agreement To order the execution of the judgement pending appeal

When to appeal: Sec.2 The period to appeal depends on WON the only requirement is a notice of appeal OR there is an additional requirement of a record on appeal. There are certain cases cognizable by an inferior court, which if appealed would require a record on appeal. The period is 30 days. If the only requisite is the filing of a notice of appeal, 15 days only. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. Material Data Rule This requires the appellant to state in his notice of appeal and in the record on appeal, that the appeal was perfected on time. He has to state when the decision or final order was received, so that it will be very convenient on the part of the appellate court to determine WON the appeal was indeed timely perfected. Notice of Appeal Notice of Appeal The filing of a motion for the extension of the period to file it is prohibited It is a very simple document, just one page. It simply tells the court of origin that the appellant is appealing the decision to the RTC. vs. Record on Appeal Record on Appeal The filing of a motion for the extension of the period to file it is allowed It could be volominous, preparation will take some time. This will copy all the pleadings submitted by the parties, as well as all the relevant motions and orders issued by the court. It will also include the decision itself rendered by the court.

1. 2. 3.

Duration of the excercise of residual powers depends on the mode of appeal taken 1. Ordinary appeal- residual jurisdiction continues to be possessed by the trial court until the records are transmitted to the appellate court. 2. Petition for Review-residual jurisdiction of the RTC continues to exist until CA gives course to the petition for review. Appeal from orders dismissing case without a trial: Lack of Jurisdiction Sec.8 If an inferior court dismisses a case filed before it for lack of jurisdiction, this dismissal is a final order. The remedy of plaintiff is to appeal by notice of appeal to the RTC. Case is Dismissed Without a trial on merits - RTC may affirm or reverse it, as the case may be. -if it agrees with the order of inferior court, and the ground of dismissal is lack of jurisdiction over the subject matter, the RTC must try the case, this time excercising its ORIGINAL, not appellate jurisdiction. - in case of reversal, the case shall be remanded for further proceedings. Case is Dismissed With trial on the merits Same thing but, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. If the inferior court dismisses a case filed before it for lack of jurisdiction, how can the plaintiff resort to the remedy of ordinary appeal, considering that in Rule 41, a final order which dismisses a case without prejudice is not appealable? The remedy according to Rule 41 is to file a petition for certiorari under Rule 65. So, there is now a conflict between Rule 40&41. In Rule 40, it is provided that when there is a conflict when it comes to decisions and final orders rendered by an inferior court, it is Rule 40 that will prevail.The foregoing principle will only apply to RTCs in Rule 41

Contents of Record on Appeal 1. The full names of all the parties to the proceedings 2. The judgment or final order appealed from 3. In chronological order, copies of pleadings, petitions, motions and all interlocutory orders related to the appealed judgment or final order 4. Data as will show that the appeal was perfected on time. 5. If an issue of fact is to be raised on appeal, then also include by reference all the evidence, testimonial and documentary. Appellate court docket and other lawful fees If a notice of appeal is submitted but the appellate court docket fee is not paid on time, the appeal is not proper, and this is a ground for dismissal. The reason is that this payment is a matter of jurisdiction, it is similar to the payment of docket fees in the filing of a complaint. Excercise of Residual Jurisdiction by the inferior courts There is nothing mentioned in Rule 40 about this. BUT an inferior court likewise possesses residual jurisdiction in the same manner that a RTC excercises residual jurisdiction over appealed cases. The justification for this is found in Rule 41, although it is entitled Appeal from a RTC. It is expressly

Bar Notes on Civil Procedure (Dean J) Zyra C.

What if the appellant, instead of filing a mere notice of appeal under Rule 40, files a petition for review under Rule 41? This appeal is erroneous, because the mode of appeal chosen is a wrong mode of appeal. BUT this will not mean that this will result to the dismissal of the appeal. The petition for review will be considered as a compliance with the notice of appeal. REASON: A petition for review also contains a notice of appeal, where the appellant already manifests his desire to appeal from the decision of the trial court. The mode chosen complies substantially with the requirements of the correct mode. So, an erroneous appeal may not result to its dismissal, if this is made from an inferior court to the RTC. HOWEVER, there can be no improper appeal from an inferior court to the RTC. Because, all issues could be raised before the RTC, as an appellate court. Procedure in the RTC: Sec. 7 1. Upon receipt of the complete record or the record on appeal, the clerk of court of the RTC will notify the parties of such fact. 2. Within 15 days from this notice, it will be appellants duty to submit a memorandum which shall briefly discuss the errors imputed to the lower court. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal. A copy of this shall be furnished by him to the adverse party. 3. Within 15 days from receipt of the appellant's memorandum, the appellee may file his memorandum. 4. Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be considered submitted for decision. RTC will decide the case on the basis of the entire record of the proceedings had in the court of origin and such memoranda as are filed. After the appeal is perfected (by the filling of the notice of appeal), RTC will now require the apppellant to submit his appeal memorandum. The appeal from the inferior court to the RTC is a MATTER OF RIGHT. So, RTC is duty-bound to review the case and to render its own decision as an appellate court. It has no discretion at all WON to entertain the appeal, unlike the SC and in certain cases, the CA. Under Rule 41, if the RTC acts as an appellate court, it can require the appellant to submit an appeal memorandum. This is a document wherein the appellant is supposed to point out to the RTC, those errors committed by the inferior court. It is similar to brief on appeal. If he fails to submit this, then the implication is that the appellant cannot point out errors of the inferior court, RTC can always rely on the Rule on Evidence that a decision rendered by a court is correct. RTC will dismiss the case. Also another ground for dismissal is when the appellant fails to show that the appeal was perfected on time, or that the docket fees were paid on time. Is it possiible for the aggrieved parties in one case to avail of the remedies under the Rules for assailing a judgement? If there are several defendants in one case, it is procedurally possible for all the remedies to challenge a judgement to be used in one and the same case at the same time. One may appeal, but this will not benefit generally the other aggrieved parties, so they may avail of the other remedies provided by law when the judgement has become final and executory Because, it is possible that in so far as one aggrieved party is concerned, the judgement is not yet final and executory (Motion for New Trial/Reconsideration & Appeal), But as for the others, the judgement is already final and executory (Petition for Relief & Annulment of Judgement) RULE 41- Appeal From The RTCs Subject of an Appeal: Sec. 1. An appeal may be taken from a judgment or final order that completely disposes of the case, OR of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: 1. An order denying a motion for new trial or reconsideration; 2. An order denying a petition for relief or any similar motion seeking relief from judgment; 3. An interlocutory order; 4. An order disallowing or dismissing an appeal; 5. An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; 6. An order of execution; 7. A judgment or final order for or against one or more of 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; and 8. An order dismissing an action without prejudice. In these instances, the aggrieved party may file an appropriate special civil action under Rule 65 Modes of Appeal 1. Ordinary appeal Appeal to CA in cases decided by RTC in the exercise of its ORIGINAL jurisdiction. Made by filing a notice of appeal with the court of origin RTC and serving a copy to adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals

2. Petition for review.

Appeal to CA in cases decided by the RTC in the exercise of its APPELLATE by petition for review in accordance with Rule 42)

General Rule: An appeal by one party benefits that party alone Exceptions: If the interests of all the defendants are intwertwined, or cannot be separated, the favorable decision will not only benefit the appellant, but also his co-parties who did not perfect an appeal. It is different from Rule 9, because the general rule there is that if the court decides in favor of the answering defendant, this judgement will also be beneficial to defaulting defendants.

3. Appeal by certiorari In all cases where only questions of law are raised or

involved, the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45.

Petition for review: Rule 41, Sec. 2 Form and Contents: Rule 42, Sec. 2 If the RTC renders a judgement which affirms the decision of the trial court, the remedy of appeal is the second mode, or the Petition for Review to be filed before the CA.

Bar Notes on Civil Procedure (Dean J) Zyra C.

This is no longer a matter of right, but a matter of discretion. 1. Will a notice of appeal satisfy the requirements of a petition for review and vice versa? If instead of filing a petition for review, an appellant files a notice of appeal, this is an erroneous appeal that will be harmful to the appellant. The appeal will be dismissed, because it will not be sufficient in form and in substance. A notice of appeal CAN NEVER satisfy the requirements of a petition for review BUT a petition for review will satisfy the requirements of a petition for review. Contents of a petition for review: 1. Assignment of errors 2. Arguments in support of the errors assigned 3. Statement of facts 4. Statement of the case In a petition for review, the appelllant does not only manifest to the court his desire to appeal, he he mist point out the errors committed by the RTC & the arguments in support of these errors. These could not possibly be contained in a notice of appeal. Certificate of non-forum shopping is required in a petition for review although the latter is not an initiatory pleading. To avoid the probability that the appellant may have filed another appeal with a different court involving the same case. Where the original case is governed by summary procedure, the aggrieved party, after receiving the decision rendered by the RTC as an appellate court MAY properly file a Motion for Reconsideration or a Motion for New Trial. Although the filing of such motion is prohibited under Summary Procedure, this applies only to inferior courts. Once the case is brought on appeal to the RTC, the efficacy of Summary Procedure ceases, and the RTC, acting as an appellate court will decide the case according to the rules on appeal. So it is proper for RTC to entertain such motions even if the appealed case is one of Unlawful Detainer. The filing of a motion for reconsideration before the RTC is not prohibited because the period to file a petition for review is stopped completely once a motion for reconsideration is filed. If the RTC denies the motion for reconsideration, the period within which a petition for review may be filed will start anew. Dismissal of appeal: Sec. 13 Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may motu propio or on motion dismiss the appeal for having been taken out of time. RULE 42 - Petition for Review From the RTC to the CA How Appeal is Taken; Time for filing: Sec. 1 A party desiring to appeal from a decision of the RTC rendered in the exercise of its APPELLATE jurisdiction may file a verified petition for review with the CA, paying the corresponding docket and other lawful fees Filed & served within 15 days from notice of the decision sought to be reviewed or of the denial of petitioner's motion for new trial or reconsideration filed in due time after judgment. CA may grant extension to file this for 15 days, upon payment of docket fees. No further extension shall be granted except for the most compelling reason. Certification of Non-Forum Shopping: Sec. 2 2. 3. The petitioner must shall also submit together with the petition a certification under oath that he Has not commenced any other action involving the same issues in the SC, CA or different divisions thereof, or any other tribunal or agency; If there is such other action or proceeding, he must state the status of the same; And if he should thereafter learn that a similar action or proceeding has been filed or is pending before the SC, CA, or diff divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five days therefrom.

Effect of Failure to Comply with Requirements The failure to comply with any of the requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. Action on the Petition: Sec. 4 CA may require the respondent to file a comment on the petition, NOT a motion to dismiss, within 10 days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too insubstantial to require consideration. Due Course: Sec. 6

If upon the filing of the comment or such other pleadings as the court may allow or require, or after the expiration of the period for the filing thereof without such comment or pleading having been submitted, the Court of Appeals finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition.

Perfection of Appeal; Effect thereof: Sec. 8 Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. RTC loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. However, before the Court of Appeals gives due course to the petition, the RTC may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal, and allow withdrawal of the appeal. Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the judgment or final order unless the Court of Appeals, the law, or these Rules shall provide otherwise. Submission for decision: Sec. 9 If the petition is given due course, CA may set the case for oral argument or require the parties to submit memoranda within 15 days from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum. Rule 43- Appeals from CTA & Quasi-Judicial Agencies to CA General Proposition: Decisions of quasi-judicial bodies are not appealable to the SC, but the CA. CTA is now co-equal and coordinate with the CA.

How an appeal is Taken: Sec. 5

Bar Notes on Civil Procedure (Dean J) Zyra C.

Effect of appeal; Distinctions between an appeal from RTC as an appellate court and a decision of a quasi-judicial body appealable to the CA: Sec. 12 The decisions of the quasi-judical bodies should be brought to the CA by way of petition for review similar to the mode of appeal from RTC acting as an appellate jurisdiction. CA also has the authority to decide purely questions of law if the appeal is from a quasi-judicial body or from RTC If appeal is from QuasiJudcial body The decision of the quasijudicial body will not be stayed by an appeal to the CA. It can still enforce that decision during the pendency of the appeal. Its factual findiings are conclusive upon CA. CA cannot review them. If appeal is from RTC The general rule is that its decision cannot be executed during the pendency of the appeal Its factual findings are NOT binding upon CA WON appellant has filed a motion for new trial in the court below he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties Rule 47- Annulment of Judgements or Final Orders and Resolutions Not a mode of appeal, it is an independent civil action, although the relief which the petitioner seeks in this petition is to set aside and nullify a final and executory judgement

Could we properly file a petition for the annulment of judgement rendered by CA, to be filed before SC? BP 129 and the Consti mentions nothing about the propriety of a petition to be filed with SC for the purpose of annulling or setting aside a final and executory judgement of CA. Differences between a Petition to Annul a Judgement Judgement filed Judgement filed with RTC with CA RTC is not given discretion Can be dismissed WON to entertain the petition. outright by the CA. It is given the discretion If there is a defect in the WON to entertain the petition, it is up to the petition, like when it respondent to point out these says that it does not errors to RTC. have merit RTC may motu proprio dismiss a petition using the grounds under Rule 9: res judicata, litis pendencia or prescription What RTC can do to an ordinary civil action, it can also do the same to such petition When it gives due course to the petition, CA should treat it as if it were an ordinary civil action. If it gives due course, CA will be bound to issue a summons to the respondent It is required to consider the petition as a mere ordinary civil action. It will be the duty of the clerk of court to issue right away a summons issued to defendant

RULE 44- Ordinary Appealed Cases Title of Cases: Sec. 1: In all cases appealed to CA under Rule 41 the title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. Counsel and Guardians: Sec. 2

The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals. When others appear or are appointed, notice thereof shall be served immediately on the adverse party and filed with the court.

Docketing of the case: Sec 4 Any unauthorized alteration, omission or addition in the approved record on appeal shall be a ground for dismissal of the appeal Extension for the filing of briefs

Not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended.

Contents of Appellants Brief: 1. The assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively; 2. "Statement of the Case"- statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy 3. "Statement of Facts" a statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto 4. The issues of fact or law to be submitted, to the court for its judgment; 5. The appellant's arguments on each assignment of error 6. Relief Contents of Appellees Brief: Sec 14 1. Statement of facts, where he states that he accepts the statement of facts in the appellant's brief 2. "Counter-Statement of Facts"- point out such insufficiencies or inaccuracies 3. "Argument," on each assignment of error Questions that may be raised on appeal: Sec. 15

Coverage: Sec. 1 Annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of RTCs which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available, but not due to fault of the petitioner Grounds for Annulment: Sec. 2 The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief. Period for Filing Action: Sec. 3 If based on extrinsic fraud, the action must be filed within 4 years from its discovery; If based on lack of jurisdiction, before it is barred by laches or estoppel. Filing and contents of Petition: Sec. 4 Commenced by filing a verified petition which particularly alleges the facts and the law relied upon for annulment, as well as those supporting the

Bar Notes on Civil Procedure (Dean J) Zyra C.

petitioner's good and substantial cause of action or defense, as the case may be. The petitioner shall also submit together with the petition affidavits of witnesses or documents supporting the cause of action or defense Submit a sworn certification that 1. He has not commenced any other action involving the same issues in the SC, the CA or different divisions thereof, or any other tribunal or agency 2. If there is such other action or proceeding, he must state the status of the same, 3. And if he should thereafter learn that a similar action or proceeding has been filed or is pending before the SC, the CA, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within 5 days therefrom. Annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The judgment may be annulled on the ground of extrinsic or collateral fraud. Jurisdiction over actions for annulment of RTC judgment has been clarified by BP 129. This introduced a new provision conferring on the CA exclusive original jurisdiction over actions for annulment of judgments of RTC. Thus, it is beyond dispute that it is only the CA that can take cognizance of the annulment of judgment in the said civil case rendered by the RTC. (2) Who may properly institute a petition for annulment of judgment. A person need not be a party to the judgment sought to be annulled. What is essential is that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby. In this present case it is true that the heirs of Araneta are not parties to the foreclosure case. Neither are they principally nor secondarily bound by the judgment rendered therein. However. their petition filed with the CA they alleged fraud and connivance perpetuated by and between the Da Silvas and the Council as would adversely affect them. This allegation, if fully substantiated by preponderance of evidence, could be the basis for the annulment of the civil case. (3) WON remedy of annulment of judgment applies only to final and executory judgment and not to that which had already been fully executed or implemented. It is the Council's contention that as the judgment in the foreclosure case had already been executed evidenced by the fact that title to the property in question had been transferred in its name the judgment can no longer be annulled. The Council's contention is devoid of merit. In Garchitorena u. Sotelo, supra, the Court affirmed the trial court's annulment of the judgment on foreclosure notwithstanding the fact that ownership of the house and lot subject of the mortgage had passed from the mortgagee who foreclosed the mortgage and purchased the property at public auction to a person who bought the same and finally to another individual in whose name the Torrens certificate of title stood by the time the case reached this Tribunal. In view of the foregoing the Court finds that the CA neither acted without jurisdiction nor committed grave abuse of discretion in giving due course to the petition for annulment of judgment as would warrant the issuance of the extraordinary writ of certiorari in this case.

Action by the court: Sec. 5 If the court finds no substantial merit in the petition, the same may be dismissed outright with specific reasons for such dismissal.

Should prima facie merit be found in the petition, the same shall be given due course and summons shall be served on the respondent. (n)

Procedure: Sec. 6 The procedure in ordinary civil cases shall be observed. Should trial be necessary, the reception of the evidence may be referred to a member of the court or a judge of a RTC Effect of Judgement: Sec. 7 A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, WITHOUT PREJUDICE to the original action being refiled in the proper court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein. Suspension of Prescriptive Period: Sec 8 The prescriptive period for the refiling of the original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic-fraud is attributable to the plaintiff in the original action. Annulment of judgments or final orders of Municipal Trial Courts: Sec. 10 An action to annul a judgment or final order of a MTC shall be filed in the RTC having jurisdiction over the former. It shall be treated as an ordinary civil action Basis of Rule 47 in giving RTC the authority to annul a judgement rendered by inferior court (given that BP129 does not mention anything about the vesting of this power) RTC is a court of general jurisdiction, so any case involving annulment of judgement rendered by an inferior court is an action which is not assigned to any other court, so this is cognizable by RTC by virtue of its being a court of general jurisdiction. So annulment of judgement could be filed wither with CA or RTC, but the decision when it comes to the CA should be the one that has been rendered by RTC. But whenit is before the RTC where the petition is filed, the decision sought to be annulled should be that which was rendered by an inferior court Islamic Dawah vs. CA