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Reviewer 1 Red Notes Bedan Reviewer Most Frequently Asked Questions Source: U.P.

Law Center EFFECT OF AMENDMENT TO A P EAD!N" An action for reconveyance of a parcel of land filed in the Regional Trial Court, the defendan t through his lawyer, filed an answer therein admitting the averment in the complaint that the land was acquired by the plaintiff through inheritance from his parents, the former owners thereof. Subsequently, the defendant changed his lawyer and, with leave of court, amended the answer. n the amended answer, the abovementioned admission no longer appears! instead, the alleged ownership of the land by the plaintiff was denied coupled with the allegation that the defendant is the owner of the land for the reason that he bought the same from the plaintiff"s parents during their lifetime. #fter trial, the $egional %rial Court rendered a decision upholding the defendant"s ownership of the land. &n appeal, the plaintiff contended that the defendant is bound by the admission contained in his original answer. s the contention of plaintiff correct' (hy' SUGGESTED ANSWER: NO# because pleadings that have been amended disappear from the record, lose their status as pleadings and cease to be )udicial admissions. (hile they may nonetheless be utili*ed as against the pleader as e+tra)udicial admissions, they must, in order to have such effect, be formally offered in evidence. , Director of Lands vs. Court of Appeals, 196 SCRA 94) A TERNAT!"E ANSWER: $E%, because an admission in the original pleading does not cease to be a )udicial admission simply because it was deleted in an amended pleading. %he original answer, although replaced by an amended answer does not cease to be part of a )udicial record, not having been e+punged therefrom. , Dissenting opinion in Torres vs. Court of Appeals, 1 1 SCRA !4) REMED!E% OF A PART$ DEC ARED !N DEFA& T (hat are the available remedies of party declared in default: -.. /efore the rendition of )udgment! -0 1.. #fter )udgment but before its finality! and 10 2.. #fter finality of )udgment' 10 SUGGESTED ANSWER: %he available remedies of a party declared in default are as follows: -.. /efore the rendition of )udgment ,a. he may file a motion to dismiss under oath to set aside the order of default on the grounds of fraud, accident, mista3e or e+cusable negligence and that he has a meritorious defense , Sec. 24b5 of $ule 6 .! and if reconsideration is denied, he may file the special civil action of certiorari for grave abuse of discretion tantamount to lac3 or e+cess of )urisdiction , Sec. - of $ule 78 .! or ,b. he may file a petition for certiorari if he has been illegally declared in derfault e.g. during the pendency of his motion to dismiss or before the e+piration of the time to answer. , 9atute v. C#, 17 SC$# :7;! #costa<&falia v. Sundial, ;8 SC$# =-1 .. 1.. #fter )udgment but before its finality, he may file a motion for new trial on the grounds of fraud, accident, mista3e, e+cusable negligence or a motion for reconsideration on the ground of e+cessive damages, insufficient evidence or the decision or final order being contrary to law , Sec. 1 of $ule 2:.! and thereafter, if the motion is denied, appeal is available under $ules => or =-, whichever is applicable. #fter finality of the )udgment, there are three ways to assail the )udgment, which are: ,a. a petition for relief under $ule 2; on the grounds of fraud, accident, mista3e or e+cusable negligence! ,b. annulment of )udgment under $ule =: for e+trinsic fraud or lac3 of )urisdiction! ,c. certiorari if the )udgment is void on its face or by the )udicial record. , /alangcad vs. ?ustices of the Court of #ppeals, @.$. Ao. ;2;;;, Bebruary -1,-661, 1>7 SC$# -:- . 2..

DEAT' OF A PART$ (hat is the effect of the death of a party upon a pending action' SUGGESTED ANSWER: (hen the claim in a pending action is purely personal, the death of either of the parties e+tinguishes the claim and the action is dismissed. (hen the claim is not purely personal and is not thereby e+tinguished, the party should be substituted by his heirs or his e+ecutor or administrator. , Sec. -7 of $ule 2.. f the action for recovery of money arising from contract, e+press or implied, and the defendant dies before the entry of final )udgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final )udgment. # favorable )udgment obtained by the plaintiff shall be enforced in the manner provided in the rules for prosecuting claims against the estate of a deceased person. , Sec. 1> of $ule 2. T'!RD PART$ C A!M( )R!T OF !N*&NCT!ON Cnforcing a writ of e+ecution issued by the Pasig $egional %rial Court in a civil action, the sheriff attached several pieces of machinery and equipment found in defendant"s place of business. #ntonio Sadalay filed with the sheriff an affidavit of third<party claim stating that the attached properties belong to him, not to the defendant. ,a. Can Sadalay intervene in the case and as3 the Pasig $%C to resolve his third<party claim' ,b. f Sadalay decides to file a separate action in the $egional %rial Court in 9a3ati to vindicate his claim, may he validly obtain a writ of in)unction from the 9a3ati $%C to en)oin the sale in e+ecution of the levied properties' SUGGESTED ANSWER: a.. NO, Sadalay may not intervene in the case because intervention is allowed only before or during the trial of the case. n this case there is already a final and e+ecutory )udgment. ,Sec. 1, $ule -6! /ayer Phils. Ds. #gana, 72 SC$# 288. Eowever, he may as3 the Pasig $%C to resolve preliminarily whether the sheriff acted rightly or wrongly in levying e+ecution on the properties in question. ,&ng vs. %ating, -=6 SC$# 178. b.. $E%, because a )udgment rendered in his favor by the 9a3ati court declaring him to be the owner of the properties levied on would not constitute interference with the powers or processes of the Pasig Court which rendered the )udgment to enforce the e+ecution. f that is so, an interlocutory order such as the writ of preliminary in)unction against the sheriff, upon a claim and prima facie showing of ownership, cannot be considered as such interference. ,A"iera vs. CA, 4# SCRA 14$ S% vs. Disca%a, 1&1 SCRA '&) )R!T OF E+EC&T!ON Plaintiff sued to recover an unpaid loan and was awarded P222,>>>.>> by the $%C of 9anila. Fefendant did not appeal within the period allowed by law. Ee died si+ days after the lapse of the period to appeal. Borthwith, a petition for the settlement of his estate was properly filed with the $%C of Pampanga where an inventory of all his assets was filed and correspondingly approved. %hereafter, plaintiff filed a motion for e+ecution with the 9anila court, contending therein that the motion was legally )ustified because the defendant died after the )udgment in the 9anila court had become final. $esolve the motion and state your reasons. b. .Under the same set of facts as ,a., a writ of e+ecution was issued by the 9anila court upon proper motion three days after the lapse of the period to appeal. %he corresponding levy on e+ecution was duly effected on defendant"s parcel of land worth P777,>>>.>> a day before the defendant died. (ould it be proper, on motion, to lift the levy on defendant"s property' State the reasons for your answer. SUGGESTED ANSWER: ,a. 9otion for e+ecution denied. #lthough the defendant died after the )udgment had become final and e+ecutory, it cannot be enforced by a writ of e+ecution against the estate of the deceased which is in custodia legis. %he )udgment should be filed as a proven money claim with the $%C of Pampanga. ,(aredes vs. )o%a, 61 SCRA #!') ,b. Ao, since the levy on e+ecution was duly effected on defendant"s parcel of land a day before the defendant died, it was valid. %he land may be sold for the satisfaction of the )udgment and the surplus shall be accounted for by the sheriff to the corresponding e+ecutor or administrator. ,Sec. '*c) of Rule 9)

CO&NTERC A!M G filed an action for damages against % arising from the latter"s tortuous act. H filed his #nswer with a counterclaim for damages suffered and e+penses incurred on account of G"s suit. %hereafter, G moves to dismiss the case since he lost interest in the case. H did not ob)ect. %he court dismissed the action without pre)udice. H moved the to set the reception of his evidence to prove his counterclaim. f you were the )udge, how would you resolve the motion' C+plain. SUGGESTED ANSWER: would deny the motion. nasmuch as H"s counterclaim for damages incurred on account of G"s suit cannot remain pending for independent ad)udication, H should have ob)ected to the dismissal of the complaint. Eis failure to ob)ect deprived him of the right to present evidence to prove his counterclaim. , Sec. ! of Rule 1'$ +notorio v. Lira, 1! SCRA 69 ). AD*&D!CAT!ON OF CA%E% )!T'O&T TR!A Can civil and criminal cases be ad)udicated without trial' C+plain SUGGESTED ANSWER Civil Cases may be ad)udicated without trial, such as in the following rules: a.. Summary ?udgment b.. ?udgment on the Pleadings c.. Summary Procedure d.. Sec. 2 of $ule -: Criminal cases as a rule may not be ad)udicated without trial. Some e+ceptions are the following: a.. Plea of guilty b.. 9otion to quash on the ground of double )eopardy or e+tinction of criminal action or liability c.. 9otion to dismiss on the ground of violation of the right to a speedy trial. PET!T!ON FOR CERT!ORAR!( )'EN MOT!ON FOR RECON%!DERAT!ON NOT NECE%%AR$ s the failure to file a motion for reconsideration in the lower court as a condition precedent for the granting of the writ of certiorari or prohibition always fatal' C+plain. SUGGESTED ANSWER: NO, because there are e+ceptions, such as the following: a.. %he question of )urisdiction was squarely raised before and decided by the respondent court b.. Public interest is involved c.. Case of urgency d.. &rder is patent nullity e.. ssue is purely of law f.. Feprivation of right to due process E+TRA,TERR!TOR!A %ER-!CE OF %&MMON% (hen is e+tra<territorial service of summons proper' SUGGESTED ANSWER: C+traterritorial service of summons is proper when the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to, or the sub)ect of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in e+cluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines. ,Sec. -: of $ule -=. t is also proper when the defendant ordinarily resides within the Philippines, but is temporarily out of it. ,Sec. 1& of Rule 14) RE% *&D!CATA

Cvelyn filed a complaint for a sum of money against ?oan but the complaint was later dismissed for failure to prosecute Iwithin a reasonable length of time.J %hereafter, Cvelyn filed another case based on the same facts against ?oan. ?oan moved to dismiss the same on the ground that the cause of action therein is barred by a prior )udgment ,res )udicata.. Cvelyn opposed the motion claiming that re )udicata has not set in since ?oan was not served with summons and the complaint in the first case was earlier dismissed, so that the trial court never acquired )urisdiction over her person and, consequently, over the case. Eow would you decide the motion of ?oan' C+plain. SUGGESTD ANSWER: %he motion to dismiss is denied. &ne of the essential requisites of res )udicata is )urisdiction over the parties. nasmuch as ?oan was not served with the summons in the first case which was earlier dismissed, the court did not acquire )urisdiction over her person and, hence, the dismissal was without pre)udice to the filing of another action against her. ,$epublic Planters /an3 vs. 9olina, September 1;, -6;;. !FE %PAN OF A TEMPORAR$ RE%TRA!N!N" ORDER (hat is the life span of a temporary restraining order issued by a trial court' 9ay this life span be e+tended' C+plain fully SUGGESTED ANSWER: %he life span of a restraining order is twenty days. %his life span may not be e+tended. # preliminary in)unction may no longer be granted without notice to the adverse party. Eowever, if it appears that great or irreparable in)ury would result to the applicant before his application for preliminary in)unction could be heard on notice, the )udge may issue a temporary restraining order with a limited life span of twenty days from date of issue. f no preliminary in)unction is granted within said period, the temporary restraining order would automatically e+pire on the 1> th day. f before the e+piration of the 1><day period, the application for preliminary in)unction is denied, the temporary restraining order would also be deem automatically vacated. ,Sec. 8 of $ule 8;! Fionisio vs. CB of South Cotabato, -1= SC$# 111. ERROR OF *&D"MENT -%. ERROR OF *&R!%D!CT!ON Fistinguish between error of )udgment and error of )urisdiction. SUGGESTED ANSWER: #n error of )udgment is one which the court may commit in the e+ercise of its )urisdiction. Such an error does not deprive the court of )urisdiction and is correctible only by appeal! whereas an error of )urisdiction is one which thcourt acts without or in e+cess of its )urisdiction. Such an error renders an orde )udgment void or voidable and is correctible by the special civil action of certiorari.,Fe la Cru* vs. 9oir, 27 Phil. 1-2! Cochingyan vs. Cloribel, :7 SC$# %ETT!N" A%!DE A F!NA AND E+EC&TOR$ *&D"MENT 9ay a )udgment which has become final and e+ecutory still be questioned, attac3ed or set aside' f so, how' f not, why' Fiscuss fully. SUGGESTED ANSWER: %here are three ways by which a final and e+ecutory )udgment may be attac3ed or set aside, namely: a.. /y petition for relief from )udgment under $ule 2; on the grounds of fraud, accident, mista3e or e+cusable negligence within si+ty days from learning of the )udgment and not more than si+ months from its entry" b.. /y direct to annul or en)oin the enforcement of the )udgment when the defect is not apparent on its face or from the recitals contained in the )udgment! c.. /y direct action, such as certiorari, or by a collateral attac3 against the )udgment which is void on its face or when the nullity of the )udgment is apparent by virtue of its own recitals. , Maka/in0kil v. Peo1le2s 'o3esite and 'ousin0 Cor1.# 45 %CRA 6578 %ETT EMENT OF E%TATE( %E F,AD*&D!CAT!ON( %&MMAR$ %ETT EMENT $ene died intestate, leaving several heirs and substantial property here in the Philippines. -.. 1.. #ssuming $ene left no debts, as counsel for his heirs, what steps would you suggest to settle $ene"s estate the least e+pensive manner' #ssuming $ene left only one heir and no debts, as counsel for his lone heir, what steps would you suggest'

2..

#ssuming that the value of $ene"s estate does not e+ceed P ->,>>>.>>, what remedy is available to obtain a speedy settlement of his estate'

SUGGESTED ANSWER: -. %o settle $ene"s estate in the least e+pensive manner, an e+tra)udicial settlement of the estate by agreement of the parties should be made through a public instrument to be filed with the $egister of Feeds, together with a bond in an amount equivalent to the value of the personal property involved as certified under oath by the parties concerned and conditioned upon payment of any )ust claim that may be filed within two ,1. years by an heir or other person unduly deprived of participation in the estate. %he fact of e+tra)udicial settlement or administration shall be published in a newspaper of general circulation once a wee3 for three ,2. consecutive wee3s. * Sec.1, Rule '4.)

1.. f $ene left only one heir, then the heir ma ad)udicate to himself the entire estate by means of an affidavit of self<ad)udication to be filed also with the register of deeds, together with the other requirements abovementioned. ,id.. 2.. Since the value of $ene"s estate e+ceed P->,>>>.>>, the remedy is to proceed to underta3e a summary settlement of estates of mall value by filing a petition in court and upon hearing, which shall beheld not less than one ,-. month nor more that three ,2. months from the date of the last publication of a notice which shall be published once a wee3 for three ,2. consecutive wee3s in a newspaper of general circulation in the province and after such other notice to interested persons as the court may direct. %he court may proceed summarily without the appointment of an e+ecutor or administrator, and without delay, grant, if proper, allowance of the will, if any, to estate, and to apportion and divide among them after payment of such debts of the estate as the court shall then find to be due. %he order of partition if it involves real estate, shall be recorded by the proper register"s office. , Sec.!, rule '4). AMENDMENT -%. %&B%T!T&T!ON OF !NFORMAT!ON (ithin the conte+t of the rule on Criminal Procedure, distinguish an amendment from a substitution of an information. SUGGESTED ANSWER: #n amendment may be made in substance and form, without leave of court, at any time before an accused pleads, and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without pre)udice to the rights of the accused. Substitution may be made if it appears at any time before )udgment that a mista3e has been made in charging the proper offense, in which case, the court shall dismiss the complaint or information upon filing of a new one charging the proper offense in accordance with $ule --6, Sec. --, provided that the accused would not be placed thereby in double )eopardy and may also require the witnesses to give bail for their appearance at the trial. , Sec. 14, Rule 11,$ Tee-an.ee, /r. vs. )ada%ag, !,' SCRA 1 4 .. %TOP AND FR!%9 %EARC' (hat is a %erry search , or so called Istop and fris3J .' C+plain. SUGGESTED ANSWER: # %erry search is a stop<and<search without a warrant. t is )ustified when conducted by police officers on the bases of prior confidential information which were reasonably corroborated by other attendant matters. , #niag, ?r. vs. Comelec, 12: SC$# =1= .. DO&B E *EOPARD$ @eorge was charged with falsification. &n the date of initial trial, the fiscal moved for the postponement on the ground that the case had been assigned to a special prosecutor of the F&? who was out of town to attend to an urgent case, and who had wires him to request for postponement. %he fiscal manifested that he was not ready for trial because he was unfamiliar with the case. %he )udge then as3ed the accused as well as his counsel whether they were amenable to a postponement. /oth @eorge and his counsel insisted on a trial. %he )udge ordered the case dismissed. Upon learning thereof, the special prosecutor filed a petition for certiorari under $ule 78 of the $ules of Court alleging that the dismissal was capricious and deprived the government of due process. @eorge opposed the petition invo3ing double )eopardy. a.. s double )eopardy a bar to the petition' C+plain. s it )ustified under e+isting law and )urisprudence'

b.. Suppose that trial on the merits had in fact proceeded and the trial )udge, finding the evidence to be insufficient, dismissed the case, would your answer be the same' C+plain. SUGGESTED ANSWER: a.. NO, because this is not an appeal by the prosecution asserting a dismissal to be erroneous. t is a petition for certiorari which assails the order of dismissal as invalid and a nullity because it was capricious and deprived the @overnment of due process. Considering that this was the first motion for postponement of the trial filed by the fiscal and the ground was meritorious, the )udge gravely abused his discretion in ordering the case dismissed. !: t;ere is no valid dis3issal or ter3ination o: t;e <ase# t;ere is no /asis :or invokin0 dou/le =eo1ardy. , (eople vs. 0o1e2, !, SCRA !9 ) NO, because in such case, the order of dismissal would be valid, even if erroneous, and would be tantamount to an acquittal. D!%M!%%A ON NO E PRO%EQ&!

b..

(hen a criminal case is dismissed on nolle prosequi can it later be refilled' SUGGESTED ANSWER: #s a general rule, when a criminal case is dismissed on nolle prosequi before the accused is placed on trial and before he is called on to plead, this is not equivalent to an acquittal and does not bar a subsequent prosecution for the same offense. * 0alve2 vs. CA, ! ' SCRA 6&# 319944 ). FORMA OFFER OF E-!DENCE Furing the pre<trial of a civil case, the partied presented their respective documentary evidence. #mong the documents mar3ed by the plaintiff was the Feed of #bsolute Sale of the property in litigation , mar3ed as C+h. ICJ .. n the course of the trial on the merita, C+h. C was identified by the plaintiff, who was cross<e+amined thereon by the defendant"s counsel! furthermore, the contents of C+h.C were read into the records by the plaintiff. Eowever, C+h. C was not among those formally offered in evidence by the plaintiff. 9ay the trial court consider C+h. C in the determination of the action' (hy' SUGGESTED ANSWER: $E%, because not only was the Feed of #bsolute Sale mar3ed by the plaintiff as C+h. C during the pre<trial, it was identified by the plaintiff in the course of the trial and the plaintiff was cross<e+amined thereon by the defendant"s counsel. Burthermore, the contents of C+h.C were read into the records by the plaintiff. Eence, the trial court could properly consider C+h.C in the determination of the action even though it was not formally offered in evidence. %his is an e+ception to the rule that the court shall consider no evidence which has not been formally offered. * Sec. # of Rule 1 !) PA%T RECO ECT!ON RE-!-ED

G states on direct e+amination that he once 3now the facts being as3ed but he cannot recall them now. (hen handed a written record of the facts, he testifies that the facts are correctly stated, but that he has never seen the writing before. s the writing admissible as past recollection recorded' C+plain. SUGGESTED ANSWER: A&, because for the written record to be admissible as past recollection recorded, it must have been written or recorded by G or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he 3new that the same was correctly written or recorded. , Sec. -7 of $ule -21. /ut in this case G has never seen the writing before. *&D!C!A NOT!CE a.. b.. @ive three instances when a Philippine court can ta3e )udicial notice of a foreign law. Eow do you prove a written foreign law'

c..

Suppose a foreign law was pleaded as part of the defense of defendant but no evidence was presented to prove the e+istence of said law, what is the presumption to be ta3en by the court as to the wordings of said law'

SUGGESTED ANSWER: a.. %he three instances when a Philippine court can ta3e )udicial notice of a foreign law are: -.. (hen the Philippine courts are evidently familiar with the foreign law 1.. (hen the foreign law refers to the law of nations , Sec. - of $ule -16. 2.. (hen it refers to a published treatise, periodical or pamphlet on the sub)ect of law if the court ta3es )udicial notice of the fact that the writer thereof is recogni*ed in his profession or calling on the sub)ect. , Sec. =7, $ule -2>. # written law may be evidenced by an official publication thereof of by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied if the record is not 3ept in the Philippines, with a certificate that such officer has the custody. f the office in which the record ids 3ept is in a foreign country, the certificate may be made by the secretary of the embassy or legation, consul< general, consul, vice<consul, or consular agent or by any officer in the foreign country in which the record is 3ept, and authenticated by the seal of his office. , Sec. 1= of $ule -21. %he presumption is that the wordings of the foreign law are the same as the local law. %his is referred to as the doctrine of processual presumption. 'EAR%A$ R& E @erry is being tried for rape. %he prosecution"s evidence sought to establish that at about 6:>>pm of ?anuary 1>, -66=, @erry went to complainant ?une"s house to invite her to watch the festivities going on at the town pla*a. ?une accepted the invitation. Upon reaching the public mar3et, which was )ust a stone"s throw away from ?une"s house, @erry forcily dragged ?une towards the banana grove behind the mar3et where he was able to have carnal 3nowledge with ?une for about an hour. ?une did not immediately do home thereafter, and it was only in the early morning of the following day that she narrated her ordeal to her daughter Li*a. Li*a testified in court as to what ?une revealed to her. a.. s the testimony of Li*a hearsay' b.. s it admissible in evidence against the ob)ection of the defense' SUGGESTED ANSWER: a.. b.. HCS, Li*a"s testimony is hearsay. # witness can testify to those facts which he 3nows of his personal 3nowledge, that is, which are derived from his own perception e+cept as otherwise provided in the rules , Sec. 27 of $ule -2>.. A&, it is not admissible in evidence against the ob)ection of the defense, because it is not one of the e+ceptions to the hearsay rule. t cannot be considered part of the res gestae because only statements made by a person while a startling occurrence is ta3ing place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. , Sec. =1 of $ule -2>. She narrated her ordeal to her daughter only in the morning of the following day, as she did not immediately go home after the incident which occurred at 6:>> pm. She could have made up the story. She should be placed on the witness stand, not Li*a whose 3nowledge of the event is hearsay.

b..

c..

#lternative answer: Li*a"s testimony is admissible in evidence as to the tenor but not as to the truth of what ?une revealed to her. DEAD MAN2% %TAT&TE 9a+imo filed an action against Pedro, the administrator of the estate of deceased ?uan, for the recovery if a car which is part of the latter"s estate. Furing trialm, 9a+imo presented witness 9ariano who testified that he was present when 9a+imo and ?uan agreed that the latter would pay a rental of P1>,>>> for the use of 9a+imo"s car for one month after which ?uan should immediately return the car to 9a+imo. Pedro ob)ected to the admission of 9ariano"s testimony. f you were the )udge, would you sustain Pedro"s ob)ection' (hy' SUGGESTED ANSWER:

NO, the testimony is admissible in evidence because witness 9ariano who testified as to what 9a+imo and ?uan, the deceased person, agreed upon, is not disqualified to testify on the agreement. %hose disqualified are parties to a case, or persons in whose behalf a case is prosecuted against the administrator of ?uan"s estate, upon a claim or demand against his estate as to any matter of fact occurring before ?uan"s death. * Sec. ! of Rule 1 ,).

%&MMAR$ OF DOCTR!NE% OF %E ECTED CA%E% C!-! PROCED&RE - A%ON ENTERPR!%E% CORPORAT!ON vs. CO&RT OF APPEA % >".R. Nos. 151775,7?. *uly 7# 1@@@.A t is well<settled that an amended pleading supersedes the original one, which is thus deemed withdrawn and no longer considered part of the record, it does not follow ipso facto that the service of a new summons for amended petitions or complaints is required . 5-ere t-e defendants -ave alread% appeared "efore t-e trial court "% virtue of a su11ons on t-e original co1plaint, t-e a1ended co1plaint 1a% "e served upon t-e1 6it-out need of anot-er su11ons, even if ne6 causes of action are alleged. After it is ac7uired, a court8s 9urisdiction continues until t-e case is finall% ter1inated. Conversel%, 6-en defendants -ave not %et appeared in court and no su11ons -as "een validl% served, ne6 su11ons for t-e a1ended co1plaint 1ust "e served on t-e1. t is not the change of cause of action that gives rise to the need to serve another summons for the amended complaint, but rather the acquisition of )urisdiction over the persons of the defendants. f the trial court has not yet acquired )urisdiction over them, a new service of summons for the amended complaint is required. &N!TED 'O&%!N" CORPORAT!ON vs. DA$R!T# ET A . >".R. No. 47?55. *anuary 55# 1@@B.A A 9udg1ent upon co1pro1ise 6-ic- is a 9udg1ent e1"od%ing a co1pro1ise agree1ent entered into "% t-e parties in 6-ic- t-e% 1a.e reciprocal concessions in order to ter1inate a litigation alread% instituted is not appeala"le, is i11ediatel% e:ecutor% and -as t-e effect of res 9udicata. # )udgment rendered upon a compromise agreement, not contrary to law or public policy or public order has all the force and effect of any other )udgment, it being a )udgment on the merits, hence, conclusive upon the parties and their privies. #s such, it can be enforced by writ of e+ecution. BA F!NANCE CORPORAT!ON vs. R&F!NO CO# ET A . >".R. No. 1BC4C1. *une 6B# 1@@6.A %he rule is that a compulsory counterclaim cannot Kremain pending for independent ad)udication by the court.K %his is because a compulsory counterclaim is au+iliary to the proceeding in the original suit and merely derives its )urisdictional support therefrom. T-us, it necessaril% follo6s t-at if t-e trial court no longer possesses 9urisdiction to entertain t-e 1ain action of t-e case, as 6-en it dis1isses t-e sa1e, t-en t-e co1pulsor% counterclai1 "eing ancillar% to t-e principal controvers%, 1ust li.e6ise "e si1ilarl% dis1issed since no 9urisdiction re1ains for t-e grant of an% relief under t-e counterclai1.

Bor the guidance of /ench and /ar, if any of the grounds to dismiss under Sec. 2, $ule -:, of the $ules of Court arises, the proper recourse for a defendant who desires to pursue his compulsory counterclaim in the same proceeding is not to move for the dismissal of the complaint! instead, he should only move to have plaintiff declared non<suited on the complaint so that the latter can no longer present his evidence thereon, and simultaneously move that he be declared as in default on the compulsory counterclaim, and reserve the right to present evidence e+ parte on his counterclaim. %his will enable defendant who was un)ustly haled to court to prove his compulsory counterclaim, which is intertwined with the complaint, because the trial court retains )urisdiction over the complaint and of the whole case. %he non<dismissal of the complaint, the non<suit notwithstanding, provides the basis for the compulsory counterclaim to remain active and subsisting.

'E!R% OF F ORENT!NA N&"&!D -DA. DE 'ABERER vs. CA >".R. Nos. ,?57@@ to ,?54B@. May 57# 1@D1.A (here a party dies in an action that survives, and no order is issued by the court for the appearance of the legal representative or of the heirs of the deceased in substitution of the deceased, and as a matter of fact no such substitution has ever been effected, the trial held by the court without such legal representatives or heirs and the )udgment rendered after such trial are null and void because the court acquired no )urisdiction over the persons of the legal representatives or of the heirs upon whom the trial and the )udgment would be binding. TAN vs. D&MARPA >".R. No. 16D444. %e1te3/er 55# 5BB?.A %he remedies available to a defendant declared in default are as follows: ,a. a motion to set aside the order of default under Section 2,b., $ule 6 of the $ules of Court, if the default was discovered before )udgment could be rendered! ,1. a motion for new trial under Section -,a. of $ule 2:, if the default was discovered after )udgment but while appeal is still available! ,2. a petition for relief under $ule 2;, if )udgment has become final and e+ecutory! and ,=. an appeal from the )udgment under Section -, $ule =-, even if no petition to set aside the order of default has been resorted to.K "O DEN F AME %A)M! vs. CO&RT OF APPEA % >".R. No. 11C7??. A1ril C# 1@@C.A Prior to pre<trial therefore, in particular, before a party is considered non<suited or declared as in default, it must be shown that such party and his counsel were each duly served with a separate notice of pre<trial. T-e a"sence, t-erefore, of t-e 1andator% notices of pre;trial nullifies t-e order of default 6-ic- suffers fro1 a serious procedural vice. <nder suc- circu1stances, t-e grant of relief to t-e part% declared in default "eco1es a 1atter of rig-t$ and t-e proceedings "eginning fro1 t-e order of default do6n to t-e default 9udg1ent itself s-ould "e considered null and void and of no effect . %hus, upon a showing that a separate notice of pre<trial was not served either upon a party or his counsel of record or upon both, the Court has consistently nullified and set aside the order of default. n addition, the Court remands the case for pre<trial and trial before the trial court, ordering the latter thereafter to render )udgment accordingly. Q&EBRA vs. CA and &N!ON REF!NER$ CORP. >".R. No. 1B1@?1. *anuary 5C# 1@@7.A # demurrer to evidence abbreviates proceedings, it being an aid or instrument for the e+peditious termination of all action, similar to a motion to dismiss, which the court or tribunal may either grant or deny. Eowever, whoever avails of it gambles his right to adduce evidence. Pursuant to the aforequoted provisions of $ule 28, if the defendantLs motion for )udgment on demurrer to evidence is granted and the order of dismissal is reversed on appeal, )udgment is rendered in favor of the adverse party because the movant loses his right to present evidence. MA$&"A# ET A . vs. CA# ET A . >".R. No. 156D@@. Au0ust 6B# 1@@7.A =:ecution proceedings are not auto1aticall% sta%ed "% t-e filing of a petition for relief fro1 9udg1ent. %he filing of their petition for relief and the subsequent appeal from the order denying relief stayed the e+ecution proceedings before the trial court. Aeither are e+ecution proceedings stayed by the perfection of the appeal from the order denying relief from )udgment. n ordinary appeals, perfection of an appeal under section 6 of $ule =- divests the trial court of

)urisdiction over its )udgment and e+ecution proceedings because the )udgment has not yet attained finality. #n appeal from an order denying relief from )udgment under $ule 2; is different. Eere, the ?udgment is already final and e+ecutory and as aforestated, the only way by which e+ecution could be suspended is by the issuance of a writ of preliminary in)unction. Ao in)unction was secured by petitioners. RODR!"&EE vs. PRO*ECT 7 MAR9ET %ER-!CE COOPERAT!-E# !NC. >".R. No. 4@@7D. Au0ust 56# 1@@C.A n this )urisdiction, the general rule is when a court )udgment or order becomes final and e+ecutory, it is the minsterial duty of the trial court to issue a writ of e+ecution to enforce this )udgment. # writ of e+ecution may however be refused on equitable grounds as when there is a change in the situation of the parties that would ma3e e+ecution inequitable or when certain circumstances which transpired after )udgment became final render e+ecution of )udgment un)ust. P'! !PP!NE NA! % AND )!RE% CORPORAT!O vs. MA A$AN !N%&RANCE COMPAN$# !NC. >".R. No. 1?6@66. Fe/ruary 1?# 5BB6.A Under the old $ules, specifically Section 1 of $ule 26 of the pre<-66: $ules of Court, the trial court is granted, upon good reasons, the discretion to order an e+ecution even before the e+piration of the time to appeal. T-e present Rules also grant t-e trial court t-e discretion to order t-e e:ecution of a 9udg1ent or a final order even "efore t-e e:piration of t-e period to appeal, also upon good reasons stated in a special order after due -earing. Such discretion, however, is allowed only while the trial court still has K)urisdiction over the case and is in possession of either the original record, or the record on appeal, as the case may be, at the time of the filing of such motion.K %he mere filing of a bond by the successful party is not a good reason for ordering e+ecution pending appeal, as La combination of circumstances is the dominant consideration which impels the grant of immediate e+ecution4!5 the requirement of a bond is imposed merely as an additional factor, no doubt for the protection of the defendantLs creditor.LK RE+ ON REA T$ "RO&P# !NC. vs. CA >".R. No. 15D?15. Mar<; 1C# 5BB5.A Birstly, it must be remembered that, in the amended petition of $e+lon for annulment of )udgment, respondent Paramount was impleaded for the reason that the prayer therein sought the nullification of the new titles issued in the name of respondent Paramount. >nas1uc- as a petition for annul1ent of 9udg1ent is classified as an original action t-at can "e filed "efore t-e Court of Appeals, t-e said court can ad1it, "% 6a% of an a1end1ent to t-e petition, ne6 causes of action inti1atel% related to t-e resolution of t-e original petition. Eence, respondent Paramount became a necessary party in the petitionerLs original cause of action see3ing a declaration of the e+istence and validity of the ownerLs duplicate copy of the sub)ect certificate of title in the possession of the latter, and an indispensable party in the action for the declaration of nullity of the titles in the name of respondent Paramount. ndeed, there can be no complete relief that can be accorded as to those already parties, or for a complete determination or settlement of the claim sub)ect of the action, if we do not touch upon the necessary consequence of the nullity of the new duplicate copy of the sub)ect certificate of title. %he $ules of Court compels the inclusion of necessary parties when )urisdiction over the person of the said necessary party can be obtained. Aon<inclusion of a necessary party when there is an opportunity to include him would mean waiver of the claim against such party. ANDA$A vs.# ABAD!A# ET A . >".R. No. 1B?B66. De<e3/er 54# 1@@6.A ?urisdiction over sub)ect matter is essential in the sense that erroneous assumption thereof may put at naught whatever proceedings the court might have had. Eence, even on appeal, and even if the parties do not raise the issue of )urisdiction, the reviewing court is not precluded from ruling that it has no )urisdiction over the case. t is elementary that )urisdiction is vested by law and cannot be conferred or waived by the parties or even by the )udge. t is also irrefutable that a court may at any stage of the proceedings dismiss the case for want of )urisdiction. Bor this matter, the ground of lac3 of )urisdiction in dismissing a case is not waivable. Eence, the last sentence of Sec. 1, $ule 6, $ules of Court, e+pressly states: K(henever it appears that the court has no )urisdiction over the sub)ect matter, it shall dismiss the action.K OFE !A 'ERRERA,FE !+ vs. CA >".R. No. 1?6467. Au0ust 11# 5BB?.A # voluntary appearance is a waiver of the necessity of a formal notice. #n appearance in whatever form, without e+plicitly ob)ecting to the )urisdiction of the court over the person, is a submission to the )urisdiction of the court over the person. (hile the formal method of entering an appearance in a cause pending in the courts is to deliver to the

cler3 a written direction ordering him to enter the appearance of the person who subscribes it, an appearance may be made by simply filing a formal motion, or plea or answer. %his formal method of appearance is not necessary. Ee may appear without such formal appearance and thus submit himself to the )urisdiction of the court. Ee may appear by presenting a motion, for e+ample, and unless by such appearance he specifically ob)ects to the )urisdiction of the court, he thereby gives his assent to the )urisdiction of the court over his person. 5-en t-e appearance is "% 1otion o"9ecting to t-e 9urisdiction of t-e court over -is person, it 1ust "e for t-e sole and separate purpose of o"9ecting to t-e 9urisdiction of t-e court. >f -is 1otion is for an% ot-er purpose t-an to o"9ect to t-e 9urisdiction of t-e court over -is person, -e t-ere"% su"1its -i1self to t-e 9urisdiction of t-e court. RE$NA DO 'A !MAO vs. ATT$%. DAN!E -! AN&E-A and !NOCENC!O PEF!ANCO FERRER# *R. >Ad3. Case No. 6D5C. Fe/ruary 1# 1@@7.A &n the other hand, when a motion to dismiss is based on payment, waiver, abandonment, release, compromise, or other form of e+tinguishment, the motion to dismiss does not hypothetically, but actually, admits the facts alleged in e+istence of the obligation or debt, only that plaintiff claims that the obligation has been satisfied. So that when a motion to dismiss on these grounds is denied, what is left to be proven in the trial is no longer the e+istence of the debt but the fact vel non of payment by the defendant. "ARC!A vs. CA and %PO&%E% &$ >".R. No. D6@5@. *une 11# 1@@5.A #s for private respondentsL ,defendantsL. loss of standing in court, by reason of having been declared in default, again we rule that a party in default loses the right to present his defense and e+amine or cross<e+amine witnesses. t does not mean that being declared in default, and thereby losing oneLs standing, constitutes a waiver of all rights! what is waived only is the right to be heard and to present evidence during the trial while default prevails. # party in default is still entitled to notice of final )udgments and orders and proceedings ta3en subsequent thereto. PAC!F!C BAN9!N" CORPORAT!ON EMP O$EE% OR"AN!EAT!ON vs. CA >".R. No. 1B@646. Mar<; 5B# 1@@C.A Clucidating the crucial distinction between an ordinary action and a special proceeding, Chief ?ustice 9oran states: #ction is the act by which one sues another in a court of )ustice for the enforcement or protection of a right, or the prevention or redress of a wrong while special proceeding is the act by which one see3s to establish the status or right of a party, or a particular fact. Eence, action is distinguished from special proceeding in that the former is a formal demand of a right by one against another, while the latter is but a petition for a declaration of a status, right or fact. (here a party litigant see3s to recover property from another, his remedy is to file an action. (here his purpose is to see3 the appointment of a guardian for an insane, his remedy is a special proceeding to establish the fact or status of insanity calling for an appointment of guardianship.

"ARC!A vs. AMA% >".R. No. 1C?154. De<e3/er D# 5BB6.A # summary )udgment is a procedural device designed for the prompt disposition of actions in which the pleadings raise only a legal, not a genuine, issue regarding any material fact. Consequently, facts are asserted in the complaint regarding which there is yet no admission, disavowal or qualification! or specific denials or affirmative defenses are set forth in the answer, but the issues are fictitious as shown by the pleadings, depositions or admissions. # summary )udgment may be applied for by either a claimant or a defending party. &n the other hand, under Section - of $ule 2= of the $ules of Court, a )udgment on the pleadings is proper when an answer fails to render an issue or otherwise admits the material allegations of the adverse partyLs pleading. %he essential question is whether there are issues generated by the pleadings. 2; # )udgment on the pleadings may be sought only by a claimant, who is the party see3ing to recover upon a claim, counterclaim or cross<claim! or to obtain a declaratory relief. 'E!R% OF R!CARDO O !-A% vs. 'ON. F ORENT!NO A. F OR and *O%E A. MATA)ARAN >".R. No. ,4D6?6. May 51# 1@DD.A n the guise of a position paper, private respondent filed a 9otion to Fismiss. (hile this is, indeed, a prohibited pleading ,Sec. -84a5, $ule on Summary Procedure. it should be noted that the 9otion was filed after an #nswer had already been submitted within the reglementary period. n essence, therefore, it is not the pleading prohibited by the $ule

on Summary Procedure. (hat the $ule proscribes is a 9otion to Fismiss, which would stop the running of the period to file an #nswer and cause undue delay. DACO$CO$ vs. !AC >".R. No. 4?DC?. A1ril 5# 1@@1.A Fismissing the complaint on the ground of improper venue is certainly not the appropriate course of action at this stage of the proceeding, particularly as venue, in inferior courts as well as in the courts of first instance ,now $%C., may be waived e+pressly or impliedly. (here defendant fails to challenge timely the venue in a motion to dismiss as provided by Section = of $ule = of the $ules of Court, and allows the trial to be held and a decision to be rendered, he cannot on appeal or in a special action be permitted to challenge belatedly the wrong venue, which is deemed waived. NORT'ERN CEMENT CORPORAT!ON vs. !AC and %'!P%!DE !NC. >".R. No. ,7D767. Fe/ruary 5@# 1@DD.A %here have been instances where the Court has held that even without the necessary amendment, the amount proved at the trial may be validly awarded, as in %ua*on v. /olanos, where we said that if the facts shown entitled plaintiff to relief other than that as3ed for, no amendment to the complaint was necessary, especially where defendant had himself raised the point on which recovery was based. %he appellate court could treat the pleading as amended to conform to the evidence although the pleadings were not actually amended. #mendment is also unnecessary when only clerical errors or non<substantial matters are involved, as we held in /an3 of the Philippine slands v. Laguna. n Co %iamco v. Fia*, we stressed that the rule on amendment need not be applied rigidly, particularly where no surprise or pre)udice is caused the ob)ecting party. #nd in the recent case of Aational Power Corporation v. Court of #ppeals, we held that where there is a variance in the defendantLs pleadings and the evidence adduced by it at the trial, the Court may treat the pleading as amended to conform with the evidence. %1ouses "O vs. TON" >".R. No. 1C1@?5. Nove3/er 54# 5BB6.A $ule =8 of the $ules of Court specifically states that in all cases, the C#Ls decisions, final orders or resolutions M regardless of the nature of the action or proceedings involved M may be appealed to this Court through a petition for review, which is )ust a continuation of the appellate process involving the original case. -8 &n the other hand, a special civil action under $ule 78 is an independent suit based on the specific grounds provided therein. #s a general rule, certiorari cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that under $ule =8. DE "ADO vs. CA >".R. No. 164DD1. De<e3/er 51# 5BB?.A %he principle of res )udicata does not apply when the dismissal of the earlier complaint, involving the same plaintiffs, same sub)ect matter, same theory and the same defendants, was made without pre)udice to its refiling at a future date, or in a different venue, as in this case. %he dismissal of the case without pre)udice indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action as though the dismissal action had not been commenced. >n ot-er 6ords, t-e discontinuance of a case not on t-e 1erits does not "ar anot-er action on t-e sa1e su"9ect 1atter. $AO 9A %!N TRAD!N" vs. CA# ET A . >".R. No. C6D5B. *une 1C# 1@@5.A Under Section -, $ule 2 of the $ules of Court, only natural or )uridical persons or entities authori*ed by law may be parties in a civil action. n ?uasing Eardware vs. 9endo*a, this Court held that a single proprietorship is neither a natural person nor a )uridical person under #rticle == of the Civil Code! it is not an entity authori*ed by law to bring suit in court. %PO&%E% E AN!O C. ON" vs. CO&RT OF APPEA % >".R. No. 1??CD1. *uly C# 5BB5A t bears stressing that the 9%CC cannot admit the belated certification on the ground that plaintiffs ,respondents. were not anyway guilty of actual forum shopping. %he distinction between the prohibition against forum shopping and the certification requirement should by now be too elementary to be misunderstood. To reiterate, co1pliance 6it- t-e certification against foru1 s-opping is separate fro1 and independent of t-e avoidance of t-e act of foru1 s-opping itself. T-ere is a difference in t-e treat1ent "et6een failure to co1pl% 6it- t-e certification re7uire1ent and violation of t-e pro-i"ition against foru1 s-opping not onl% in ter1s of i1posa"le sanctions "ut also in t-e 1anner of enforcing t-e1. T-e for1er constitutes sufficient cause for t-e dis1issal 6it-out pre9udice of

t-e co1plaint or initiator% pleading upon 1otion and after -earing, 6-ile t-e latter is a ground for su11ar% dis1issal t-ereof and for direct conte1pt. %he rule e+pressly requires that a certification against forum shopping should be attached to or filed simultaneously with the complaint or other initiatory pleading regardless of whether forum shopping had in fact been committed. #ccordingly, in the instant case, the dismissal of the complaint for unlawful detainer must follow as a matter of course. =/=CT)=?T CAS=@ Aailure of t-e defendants to allege lac. of cetification of non;foru1 s-opping is not a 6aiver of t-eir rig-t to assert t-e defect (hile not raised in the parties" pleadings, it is necessary to mention that the failure of petitioners" answer filed in the e)ectment case to allege the lac3 of certification of non<forum shopping did not result in the waiver of their right to assert the defect. &ur decision in Nho v. Court of #ppeals where this Court ruled that by virtue of Sec. -, $ule 6, #$$% Rule& of Civil 'rocedure, ob)ections of this 3ind are forfeited when not raised in the answerOcomment earlier tended to a petition for special civil action of certiorari, is not controlling. T-e instant case is governed "% t-e 1991 Revised Rules on Su11ar% (rocedure 6-ere a 1otion to dis1iss is generall% proscri"ed e:cept for lac. of 9urisdiction over t-e su"9ect 1atter or failure to co1pl% 6it- conciliation proceedings and 6-ere t-e onl% 1atters dee1ed 6aived for failure to assert in t-e ans6er are negative and affir1ative defenses. Clearly, petitioners were e+cused from filing a motion to question the absence of the certification and, concomitantly, their failure to include the ob)ection in their answer did not result in the waiver thereof since the ob)ection is neither a negative nor an affirmative defense. %o clarify, non<compliance with the requirement of certification does not give rise to an affirmative defense, i.e., the allegation of new matter by way of confession and avoidance, much less a negative defense since the underta3ing has nothing to do with the operative facts required to be alleged in an initiatory pleading, such as allegations on the cause of action, but with a special pre<requisite for admission of the complaint for filing in court. "&MABON -%. AR!N F"R No. 1?5C56 NO-. 54#5BB18 %hus, the -66: $ules of Civil Procedure now provide that the court may (otu proprio dismiss the claim when it appears from the pleadings or evidence on the record that: -. the court has no )urisdiction over the sub)ect matter! 1. there is another cause of action pending between the same parties for the same cause! or 2. where the action is barred by a prior )udgment or by statute of limitations. Brom the foregoing, it is clear that a court may not (otu proprio dismiss a case for improper venue, this ground not being among those mentioned where the court is authori*ed to do so. n fact, the applicable rule would be Section -, $ule 6 of the -66: $ules of Civil Procedure providing that Idefenses and ob)ections not pleaded either in a motion to dismiss or in the answer are deemed waived.J Burthermore, Section 7, $ule -7 of the -66: $ules now provides that if no motion to dismiss has been filed, any of the grounds for dismissal provided in this $ule P which includes the ground that venue is improperly laid ,Section -4c5. P 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 has been filed. $espondent not having raised improper venue in a motion to dismiss or in his answer, he is deemed to have waived the same. (ell<3nown is the basic legal principle that venue is waivable. Bailure of any party to ob)ect to the impropriety of venue is deemed a waiver of his right to do so. BEN!TO C. %A AEAR vs. 'ON. TOMA% R. ROMAQ&!N >".R. No. 1C1B7D. May 51# 5BB?A %he pleadings of the accused and copies of the orders or resolutions of the trial court are served on the People of the Philippines through the Provincial Prosecutor. Eowever, in appeals before the Court of #ppeals and the Supreme Court either ,a. by writ of error! ,b. via petition for review! ,c. on automatic appeal! or, ,d. in special civil actions where the People of the Philippines is a party, the general rule is that the &ffice of the Solicitor @eneral is the sole representative of the People of the Philippines. A cop% of t-e petition in suc- action 1ust "e served on t-e (eople of t-e (-ilippines as 1andated "% Section , Rule 46 of t-e Rules of Court, t-roug- t-e Bffice of t-e Solicitor 0eneral. T-e service of a cop% of t-e petition on t-e (eople of t-e (-ilippines, t-roug- t-e (rovincial (rosecutor 6ould "e inefficacious. T-e petitionerCs failure to -ave a cop% of -is petition served on t-e respondent, t-roug- t-e Bffice of t-e Solicitor 0eneral, s-all "e sufficient ground for t-e dis1issal of t-e petition as provided in t-e last paragrap- of Section , Rule 46 of t-e Rules of Court. <nless and until copies of t-e petition are dul% served on t-e respondent, t-e appellate court -as no ot-er recourse "ut to dis1iss t-e petition. EMER!TO REM& A vs. *O%E !TO DP. MAN ON"AT >".R. No. 1?D1D@. Nove3/er 11# 5BB?A

n a number of cases, the Supreme Court has in fact rela+ed the period for perfecting an appeal, especially on grounds of substantial )ustice, or when there are other special and meritorious circumstances and issues. Derily, this Court has the power to rela+ or suspend the rules or to e+empt a case from their rigid operation when warranted by compelling reasons and the requirements of )ustice. n the present case, the late filing << by only one day << of the prosecution"s Aotice of #ppeal was e+cusable, considering respondent"s diligent efforts. A%!AN CON%TR&CT!ON AND DE-E OPMENT CORP. -%. CA F"R No. 17B5?5# May 14#5BBC8 %he purpose of Section --, $ule 7 of the $ules of Court is to permit a defendant to assert an independent claim against a third<party which he, otherwise, would assert in another action, thus preventing multiplicity of suits. #ll the rights of the parties concerned would then be ad)udicated in one proceeding. %his is a rule of procedure and does not create a substantial right. Aeither does it abridge, enlarge, or nullify the substantial rights of any litigant. 4-85 %his right to file a third<party complaint against a third<party rests in the discretion of the trial court. %he third<party complaint is actually independent of, separate and distinct from the plaintiff"s complaint, such that were it not for the rule, it would have to be filed separately from the original complaint. T-e t-ird;part% co1plaint does not -ave to s-o6 6it- certaint% t-at t-ere 6ill "e recover% against t-e t-ird; part% defendant, and it is sufficient t-at pleadings s-o6 possi"ilit% of recover%. >n deter1ining t-e sufficienc% of t-e t-ird;part% co1plaint, t-e allegations in t-e original co1plaint and t-e t-ird;part% co1plaint 1ust "e e:a1ined. 3!!4 A t-ird;part% co1plaint 1ust allege facts 6-ic- pri1a facie s-o6 t-at t-e defendant is entitled to contri"ution, inde1nit%, su"rogation or ot-er relief fro1 t-e t-ird;part% defendant. CR!M!NA PROCED&RE %ECRETAR$ OF *&%T!CE vs. 'ON. RA P' C. ANT!ON >".R. No. 16@?7C. *anuary 1D# 5BBBA n a preliminary investigation which is an administrative investigatory proceeding, Section 2, $ule --1 of the $ules of Court guarantees the respondent"s basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter<affidavits and other supporting documents within ten days from receipt thereof. 9oreover, the respondent shall have the right to e+amine all other evidence submitted by the complainant.QRQ %hese twin rights may, however, be considered dispensable in certain instances, such as: -.. n proceedings where there is an urgent need for immediate action, li3e the summary abatement of a nuisance per &e ,#rticle :>=, Civil Code., the preventive suspension of a public servant facing administrative charges ,Section 72, Local @overnment Code, /. P. /lg. 22:., the padloc3ing of filthy restaurants or theaters showing obscene movies or li3e establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution! 1.. (here there is tentativeness of administrative action, that is, where the respondent is not precluded from en)oying the right to notice and hearing at a later time without pre)udice to the person affected, such as the summary distraint and levy of the property of a delinquent ta+payer, and the replacement of a temporary appointee! and 2.. (here the twin rights have previously been offered but the right to e+ercise them had not been claimed. PEOP E OF T'E P'! !PP!NE% vs. MODE%TO TEE a.k.a. E%TO$ TEE >".R. Nos. 1?BC?7,?4. *anuary 5B# 5BB6.A %hus, it has been held that term Knarcotics paraphernaliaK is not so wanting in particularity as to create a general warrant. Aor is the description Kany and all narcoticsK and Kall implements, paraphernalia, articles, papers and records pertaining toK the use, possession, or sale of narcotics or dangerous drugs so broad as to be unconstitutional. # search warrant commanding peace officers to sei*e Ka quantity of loose heroinK has been held sufficiently particular. %ested against the foregoing precedents, the description Kan undetermined amount of mari)uanaK must be held to satisfy the requirement for particularity in a search warrant. Aoteworthy, what is to be sei*ed in the instant case is property of a specified character, i.e., mari)uana, an illicit drug. /y reason of its character and the circumstances under which it would be found, said article is illegal. # further description would be unnecessary and ordinarily impossible, e+cept as to such character, the place, and the circumstances. %hus, this Court has held that the description Killegally in possession of undetermined quantityOamount of dried mari)uana leaves and 9ethamphetamine Eydrochloride ,Shabu. and sets of paraphernaliaK particulari*es the things to be sei*ed.

%he search warrant in the present case, given its nearly similar wording, Kundetermined amount of mari)uana or ndian hemp,K in our view, has satisfied the ConstitutionLs requirements on particularity of description. %he description therein is: ,-. as specific as the circumstances will ordinarily allow! ,1. e+presses a conclusion of fact M not of law M by which the peace officers may be guided in ma3ing the search and sei*ure! and ,2. limits the things to be sei*ed to those which bear direct relation to the offense for which the warrant is being issued. Said warrant imposes a meaningful restriction upon the ob)ects to be sei*ed by the officers serving the warrant. %hus, it prevents e+ploratory searches, which might be violative of the /ill of $ights. PEOP E -%. CAB! E% > 5D? %CRA 1@@ A Constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordianry manner whereby the accused orally admitted having committed the crime. E%Q&!-E vs. T'E %AND!"ANBA$AN >".R. No. 164564# %e1te3/er 14# 5BB5A n Rodrigo, )r* v&* Sandigan+ayan , ,inay v&* Sandigan+ayan, and ayu& v&* Sandigan+ayan, we already held that municipal mayors fall under the original and e+clusive )urisdiction of the Sandiganbayan. Aor can ,arangay Captain 9ar3 #nthony Csquivel claim that since he is not a municipal mayor, he is outside the Sandiganbayan"s )urisdiction . R.A. '9'#, as a1ended "% R.A. ?o. &!49, provides t-at it is onl% in cases 6-ere Dnone of t-e accused are occup%ing positions corresponding to salar% grade E!'C or -ig-erD t-at De:clusive original 9urisdiction s-all "e vested in t-e proper regional trial court, 1etropolitan trial court, 1unicipal trial court, and 1unicipal circuit court, as t-e case 1a% "e, pursuant to t-eir respective 9urisdictions as provided in Fatas (a1"ansa Flg. 1!9, as a1ended.D Aote that under the -66- Local @overnment Code, 9ayor Csquivel has a salary grade of 1:. Since ,arangay Captain Csquivel is the co<accused in Criminal Case Ao. 1=::: of 9ayor Csquivel, whose position falls under salary grade 1:, the Sandiganbayan committed no grave abuse of discretion in assuming )urisdiction over said criminal case, as well as over Criminal Case Ao. 1=::;, involving both of them. OFF!CE OF T'E OMB&D%MAN vs. R&BEN ENOC,et.al >".R. Nos. 1?C@C4,7D# *anuary 5C# 5BB5A Section -8 of $# 7::> gives the &mbudsman primary )urisdiction over cases cogni*able by the Sandiganbayan. %he law defines such primary )urisdiction as authori*ing the &mbudsman Kto ta3e over, at any stage, from any investigatory agency of the government, the investigation of such cases.K T-e grant of t-is aut-orit% does not necessaril% i1pl% t-e e:clusion fro1 its 9urisdiction of cases involving pu"lic officers and e1plo%ees cogni2a"le "% ot-er courts. %he e+ercise by the &mbudsman of his primary )urisdiction over cases cogni*able by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. ndeed, it must be stressed that the powers granted by the legislature to the &mbudsman are very broad and encompass all 3inds of malfeasance, misfeasance and non<feasance committed by public officers and employees during their tenure of office. %A AEAR -%. PEOP E > "R No. 1C1@61# %e1te3/er 56# 5BB6 A f demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case , unless the court also declares that the act or omission from which the civil liability may arise did not e+ist. >f t-e trial court issues an order or renders 9udg1ent not onl% granting t-e de1urrer to evidence of t-e accused and ac7uitting -i1 "ut also on t-e civil lia"ilit% of t-e accused to t-e private offended part%, said 9udg1ent on t-e civil aspect of t-e case 6ould "e a nullit% for t-e reason t-at t-e constitutional rig-t of t-e accused to due process is t-ere"% violated. %his is so because when the accused files a demurrer to evidence, the accused has not yet adduced evidence both on the criminal and civil aspects of the case. %he only evidence on record is the evidence for the prosecution. (hat the trial court should do is to issue an order or partial )udgment granting the demurrer to evidence and acquitting the accused! and set the case for continuation of trial for the petitioner to adduce evidence on the civil aspect of the case, and for the private complainant to adduce evidence by way of rebuttal after which the parties may adduce their sur<rebuttal evidence as provided for in Section --, $ule --6 of the $evised $ules of Criminal Procedure. CA%&PANAN -%. ARO$A > "R No. 1?C6@1# Au0ust 57# 5BB5 A Under Section - of the present $ule ---, the independent civil action in #rticles 21, 22, 2= and 1-:7 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without

reservation. %he commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code. T-e suspension in Section ! of t-e present Rule 111 refers onl% to t-e civil action arising fro1 t-e cri1e, if suc- civil action is reserved or filed "efore t-e co11ence1ent of t-e cri1inal action. "AB!ONEA -%. CA >"R No. 1?B611# Mar<; 6B# 5BB1A #n amendment which merely states with additional precision something which is already contained in the original information, and which, therefore, adds nothing essential for conviction for the crime charged is an amendment to form that can be made at any time. ?urisprudence allows amendments to information so long as: ,a. it does not deprive the accused of the right to invo3e prescription! ,b. it does not affect or alter the nature of the offense originally charged! ,c. it does not involve a change in the basic theory of the prosecution so as to require the accused to undergo any material change or modification in his defense! ,d. it does not e+pose the accused to a charge which would call for a higher penalty! and, ,8. it does not cause surprise nor deprive the accused of an opportunity to meet the new averment. n the case at bar, it is clear that the questioned amendment is one of form and not of substance. T-e allegation of ti1e 6-en an offense is co11itted is a 1atter of for1, unless ti1e is a 1aterial ingredient of t-e offense. >t is not even necessar% to state in t-e >nfor1ation t-e precise ti1e t-e offense 6as co11itted unless ti1e is a 1aterial factor . t is sufficient that the act is alleged to have been committed at any time as near to the actual date at which the offense was committed as the Complaint or nformation will permit. A !CAN -%. -ER"ARA >"R No. 1BD71@# *uly 61# 1@@4A %his Court has consistently defined the proper procedure in case of denial of a motion to quash. %he accused has to enter a plea, go to trial without pre)udice on his part to present the special defenses he had invo3ed in his motion and, if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authori*ed by law. Certiorari is not t-e proper re1ed% 6-ere a 1otion to 7uas- an infor1ation is denied. T-at t-e appropriate recourse is to proceed to trial and in case of conviction, to appeal suc- conviction, as 6ell as t-e denial of t-e 1otion to 7uas-, is i1pelled "% t-e fact t-at a denial of a 1otion to 7uas- is an interlocutor% procedural aspect 6-ic- cannot "e appealed nor can it "e t-e su"9ect of a petition for certiorari. T-e re1edies of appeal and certiorari are 1utuall% e:clusive and not alternative or successive. BA$A% -%. %AND!"ANBA$AN >"R Nos. 1?67D@,@1# Nove3/er 15#5BB5A %here is nothing irregular or unlawful in stipulating facts in criminal cases. %he policy encouraging it is consistent with the doctrine of waiver, which recogni*es that K. . . everyone has a right to waive and agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right and without detriment to the community at large.K n the present case, the ?oint Stipulation made by the prosecution and petitioners was a waiver of the right to present evidence on the facts and the documents freely admitted by them. %here could have been no impairment of petitionersL right to be presumed innocent, right to due process or right against self<incrimination because the waiver was voluntary, made with the assistance of counsel and is sanctioned by the $ules on Criminal Procedure. &nce the stipulations are reduced into writing and signed by the parties and their counsels, they become binding on the parties who made them. %hey become )udicial admissions of the fact or facts stipulated. Cven if placed at a disadvantageous position, a party may not be allowed to rescind them unilaterally! it must assume the consequences of the disadvantage. f the accused are allowed to plead guilty under appropriate circumstances, by parity of reasoning, they should li3ewise be allowed to enter into a fair and true pretrial agreement under appropriate circumstances. $AP -%. CA >"R No. 1?1C5@# *une 7# 5BB1A t militates emphasis that petitioner is see3ing bail on appeal. Section #, Rule 114 of t-e Revised Rules of Cri1inal (rocedure is clear t-at alt-oug- t-e grant of "ail on appeal in non;capital offenses is discretionar%, 6-en t-e penalt% i1posed on t-e convicted accused e:ceeds si: %ears and circu1stances e:ist t-at point to t-e pro"a"ilit% of flig-t if released on "ail, t-en t-e accused 1ust "e denied "ail, or -is "ail previousl% granted s-ould "e cancelled. n the same vein, the Court has held that the discretion to e+tend bail during the course of the appeal should be e+ercised with grave caution and for strong reasons, considering that the accused had been in fact convicted by the trial court . %A E% -%. %AND!"ANBA$AN

>"R No. 1?6DB5# Nove3/er 17# 5BB1A %he determination of probable cause is a function of the )udge! it is not for the provincial fiscal or prosecutor to ascertain. &nly the )udge and the )udge alone ma3es this determination! 1.5 %he preliminary inquiry made by a prosecutor does not bind the )udge. t merely assists him in ma3ing the determination of probable cause. t is the report, the affidavits, the transcripts of stenographic notes, if any, and all other supporting documents behind the prosecutorLs certification which are material in assisting the )udge in his determination of probable cause! and 2.5 ?udges and prosecutors ali3e should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. Cven if the two inquiries be made in one and the same proceeding, there should be no confusion about their ob)ectives. T-e deter1ination of pro"a"le cause for purposes of issuing t-e 6arrant of arrest is 1ade "% t-e 9udge. T-e preli1inar% investigation proper G 6-et-er or not t-ere is reasona"le ground to "elieve t-at t-e accused is guilt% of t-e offense c-arged and, t-erefore, 6-et-er or not -e s-ould "e su"9ected to t-e e:pense, rigors and e1"arrass1ent of trial G is t-e function of t-e prosecutor. RO+A% -%# -A%Q&EE >6CD %CRA 767A n criminal prosecutions, a reinvestigation, li3e an appeal, renders the entire case open for review. &% -%. P&R"ANAN > "R No. 1?DC41# %e1te3/er 5?#5BB5A %he filing of a petition for e+tradition does not per se )ustify the issuance of a warrant of arrest against an e+traditee. %he petition, in some instances, may not contain sufficient allegations and proof on the issue of whether the possible e+traditee will escape from the )urisdiction of the e+traditing court. (hen the petition for e+tradition does not provide sufficient basis for the arrest of the possible e+traditee or the grant of bail as in the case at bar, it is discretionary for the e+tradition court to call for a hearing to determine the issue. #n e+traditee has the right to apply for bail. %he right is rooted in the due process clause of the Constitution. t cannot be denied simply because of the silence of our e+tradition treaty and law on the matter. %he availability of the right to bail is buttressed by our other treaties recogni*ing civil and political rights and by international norms, customs and practices. %he e+traditee may apply for bail but its grant depends on the discretion of the e+traditing court. %he court must satisfy itself that the bail will not frustrate the ends of )ustice. n deciding whether to grant bail or not to a possible e+traditee, the e+traditing court must follow a higher and stricter standard. %he e+traditee must prove by clear and convincing evidence that he will not flee from the )urisdiction of the e+traditing court and will respect all its processes. n fine, that he will not frustrate the ends of )ustice. T& !AO -%. RAMO% > 5D? %CRA 64D A # )udge should demand the presentation of the originals of the required documents before approving a bail bond. PEOP E -%.NARCA >"R No. 1BD?DD# *uly 51# 1@@4A %here is nothing in the $ules which renders invalid a preliminary investigation held without defendantLs counsel. Aot being a part of the due process clause but a right merely created by law, preliminary investigation if held within the statutory limitations cannot be voided. #ppellantLs argument, if sustained, would ma3e a moc3ery of criminal procedure, since all that a party has to do to thwart the validity of the preliminary investigation is for their counsel not to attend the investigation. t must be emphasi*ed that the preliminary investigation is not the venue for the full e+ercise of the rights of the parties. T-is is 6-% preli1inar% investigation is not considered as a part of trial "ut 1erel% preparator% t-ereto and t-at t-e records t-erein s-all not for1 part of t-e records of t-e case in court. (arties 1a% su"1it affidavits "ut -ave no rig-t to e:a1ine 6itnesses t-oug- t-e% can propound 7uestions t-roug- t-e investigating officer. >n fact, a preli1inar% investigation 1a% even "e conducted e:;parte in certain cases. $&%OP -%. %AND!"ANBA$AN >"R No. 16DDC@,7B# Fe/ruary 55# 5BB1A

%he defenseLs failure to cross<e+amine Cli*abeth $eglos was occasioned by her supervening death. Lac3 of cross<e+amination due to the death of the witness does not necessarily render the deceasedLs previous testimony e+pungible. /esides, mere opportunity and not actual cross<e+amination is the essence of the right to cross<e+amine. (e also find unmeritorious appellantsL argument that Cli*abethLs testimony, having been ta3en during the bail hearings d under Section ;, $ule --=, as amended by Circular -1<6=, Kevidence %O !D TR!AN" E %A E% CORP. -%. T'E %'ER!FF OF RTC# QC. Et.al >"R No. 1??6B@# Nove3/er 56# 5BB1A %he effect of the quashal of the warrant on the ground that no offense has been committed is to render the evidence obtained by virtue of the warrant Kinadmissible for any purpose in any proceeding,K including the preliminary investigation. DE O% %ANTO%,RE$E% -%. MONTE%A >AM,RT* @6,@D6# Au0ust 4# 1@@CA >n satisf%ing -i1self of t-e e:istence of pro"a"le cause for t-e issuance of a 6arrant of arrest, t-e 9udge, follo6ing t-e esta"lis-ed doctrine and procedure, s-all eit-er *a) personall% evaluate t-e report and t-e supporting docu1ents su"1itted "% t-e prosecutor regarding t-e e:istence of pro"a"le cause and, on t-e "asis t-ereof, issue a 6arrant of arrest, or *") if on t-e face of t-e infor1ation -e finds no pro"a"le cause, -e 1a% disregard t-e prosecutor8s certification and re7uire t-e su"1ission of t-e supporting affidavits of 6itnesses to aid -i1 in arriving at a conclusion as to t-e e:istence of pro"a"le cause . ,Supreme Court Circular Ao. -1, dated 2> ?une -6;:! Soliven vs. 9a3asiar, -7: SC$# 262 4-6;;5! Cru* vs. People, 122 SC$# =26 4-66=5.. %his procedure is dictated by sound public policy! otherwise )udges would be unduly laden with the preliminary e+amination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. At t-is stage of a cri1inal proceeding, t-e 9udge is not tas.ed to revie6 in detail t-e evidence su"1itted during t-e preli1inar% investigation$ it is sufficient t-at -e personall% evaluates t-e report and supporting docu1ents su"1itted "% t-e prosecution in deter1ining pro"a"le cause. T-is 9udicial function does not carr% 6it- it a 1otu proprio revie6 of t-e reco11endation of t-e prosecutor in a capital offense t-at no "ail s-all "e granted. Suc- a reco11endation is t-e e:clusive prerogative of t-e prosecutor in t-e e:ercise of -is 7uasi;9udicial function during t-e preli1inar% investigation, 6-ic- is e:ecutive in nature. n such cases, once the court determines that probable cause e+ists for the issuance of a warrant of arrest, the warrant of arrest shall forthwith be issued and it is only after the accused is ta3en into the custody of the law and deprived of his liberty that, upon proper application for bail, the court on the basis of the evidence adduced by the prosecution at the hearing called for the purpose may, upon determination that such evidence is not strong, admit the accused to bail. PEOP E -%. NADERA >"R Nos. 1616D?,D4# Fe/ruary 5# 5BBBA Convictions "ased on an i1provident plea of guilt are set aside onl% if suc- plea is t-e sole "asis of t-e 9udg1ent. f the trial court relied on sufficient and credible evidence to convict the accused, the conviction must be sustained, because then it is predicated not merely on the guilty plea of the accused but on evidence proving his commission of the offense charged. P'! . RABB!T B&% !NE% -%. PEOP E > "R No. 1?44B6# A1ril ?# 5BB? A #n appeal from the sentence of the trial court implies a waiver of the constitutional safeguard against double )eopardy and throws the whole case open to a review by the appellate court. %he latter is then called upon to render )udgment as law and )ustice dictate, whether favorable or unfavorable to the appellant. %his is the ris3 involved when the accused decides to appeal a sentence of conviction. ndeed, appellate courts have the power to reverse, affirm or modify the )udgment of the lower court and to increase or reduce the penalty it imposed. A ONTE -%. %A-E ANO 5D4 %CRA 5?C #fter the case has been filed in court, any pardon made by the private complainant, whether by sworn statement or on the witness stand, cannot e+tinguish criminal liablilty. PEOP E -%. E%CANO 6?@ %CRA 74?

%he acquittal on appel of certain accused based on reasonable doubt benefits a co<accused who did not appel or who withdrew his appeal. PEOP E -%. MADERA% 6CB %CRA CB? (here the accused escapes from actual custody or flees from constructive custody, the Court may motu proprio or on appellee"s motion dismiss the appeal for abandonment. E-!DENCE PEOP E OF T'E P'! !PP!NE% vs. E-AN"E !NE "ANENA% % &RBANO >".R. No. 1?1?BB. %e1te3/er 7# 5BB1A %he alleged inconsistencies in the testimonies of the prosecution witnesses refer to minor or trivial incidents that do not detract from the fact that appellant was caught in flagrante delicto as a result of the buy<bust operation. %he identities of the leader and the members of the police team are nonessential matters that have no direct bearing upon the actual commission of the offense. 5itnesses testif%ing on t-e sa1e event do not -ave to "e consistent in ever% detail, as differences in recollections, vie6points or i1pressions are inevita"le. So long as t-e% concur on t-e 1aterial points of t-eir respective testi1onies, slig-t differences in t-ese 1atters do not destro% t-e veracit% of t-eir state1ents 're&u(ption of Regularity in the 'erfor(ance of -fficial Duty %he testimonies of the police officers with respect to appellant"s participation in the drug<related transaction, which was the sub)ect of the operation, carried with it the presumption of regularity in the performance of official functionsCourts accord credence and full faith to the testimonies of police authorities, as they are presumed to be performing their duties regularly, absent any convincing proof to the contrary n this case, no sufficient reason or valid e+planation was presented to deviate from this presumption of regularity on their part. n almost every case involving a buy<bust operation, the accused put up the defense of frame<up. %he Supreme Court views such claim with disfavor, because Iit can easily be feigned and fabricated. E-AN"E !NE CABRERA vs. PEOP E OF T'E P'! !PP!NE% and &!% "O# >".R. No. 1CB71D. *uly 5?# 5BB6.A n this case, the prosecution failed to adduce in evidence any notice of dishonor of the three postdated chec3s or any letter of demand sent to and received by the petitioner. %he bare testimony of Luis @o that he sent letters of demand to the petitioner notifying her of the dishonor of her chec3s is utterly insufficient. Aor failure of t-e prosecution to s-o6 t-at notices of dis-onor of t-e t-ree postdated c-ec.s 6ere served on t-e petitioner, or at t-e ver% least, t-at s-e 6as sent a de1and letter notif%ing -er of t-e said dis-onor, t-e pri1a facie presu1ption under Section ! of F.(. Flg. !! t-at s-e .ne6 of t-e insufficienc% of funds cannot arise. T-us, t-ere can "e no "asis for esta"lis-ing t-e presence of Dactual .no6ledge of insufficienc% of funds .K n light of such failure, we find and so declare that the prosecution failed to prove beyond reasonable doubt all the elements of violation of /.P. /lg. 11. Eence, the need to reverse and set aside the decisions of both the Court of #ppeals and the trial court convicting the petitioner of the crime of violation of /.P. /lg. 11. Eowever, we uphold the decision of the C# affirming the trial courtLs decision ordering the petitioner to pay to the private respondent the total face value of the chec3s in the amount of P1>6,-:8.=8. (e stress that a chec3 is an evidence of debt against the drawer, and although may not be intended to be presented, has the same effect as an ordinary chec3, and if passed upon to a third person, will be valid in his hands li3e any other chec3. Eence, the petitioner is obliged to pay to the private respondent Luis @o the said amount of P1>6,-:8.=8 with -10 legal interest per annum, from the filing of the information until the finality of this decision, the sum of which, inclusive of interest, shall be sub)ect thereafter to -10 per annum interest until the amount due is fully paid, conformably to our ruling that when an obligation is breached, and it consists in the payment of a sum of money, i.e. a loan or forbearance of money, the interest due should be that which may have been stipulated in writing. n the absence of such stipulation, the rate shall be -10 per annum computed from default, i.e. )udicial or e+tra)udicial demand. 18 n this case, the rate of interest was not stipulated in writing by the petitioner, the private respondent and /oni Co. %hus, the applicable interest rate is -10 per annum.

PRE%!DENT!A COMM!%%!ON ON "OOD "O-ERNMENT FPC""8 vs. >".R. No. 16515B. Fe/ruary 1B# 5BB6.A

n the face of the #ffidavit and the Supplemental #ffidavit, it is indeed strange how the ombudsman could have ruled that there was no testimonial evidence on the said matters. %hat he ruled thus clearly shows that he whimsically opted to disregard those pieces of evidence and thereby demonstrated his capricious and arbitrary e+ercise of )udgment. %he complainant is required to file affidavits Kas well as other supporting documents to establish probable cause,K as stated in the $ules of Court: K,a. %he complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause.K %his requirement was fulfilled by the PC@@. %he Supplemental Complaint was accompanied by the #ffidavits of witnesses as well as by a host of other supporting documents, all of which M ta3en together M established probable cause. >t s-ould "e noted t-at t-e Rules on =vidence recogni2es different for1s of evidence G o"9ect, docu1entar% or testi1onial G 6it-out preference for an% of t-e1 in particular. 5-at s-ould reall% 1atter are t-e 6eig-t and t-e sufficienc% of t-e evidence presented. PEOP E OF T'E P'! !PP!NE% vs. CAR !TO MARA'A$ y MORACA >".R. Nos. 15B75C,5@. *anuary 5D# 5BB6A (hile the father<daughter relationship of accused<appellant and the victims, 9ylene and /elinda, remains undisputed, the minority of the victims, though alleged, was not satisfactorily established. t is the burden of the prosecution to prove with certainty the fact that the victim was below -; years of age when the rape was committed in order to )ustify the imposition of the death penalty. n the recent case of People vs. 9anuel Pruna y $amire* or Crman Pruna y $amire*, this Court laid down the following guidelines in appreciating age, eit-er as an ele1ent of t-e cri1e or as a 7ualif%ing circu1stance@ K-. %he best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. K1. n the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. K2. f the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victimLs mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the e+act age or date of birth of the offended party pursuant to Section =>, $ule -2> of the $ules on Cvidence shall be sufficient under the following circumstances: a. f the victim is alleged to be below 2 years of age and what is sought to be proved is that she is less than : years old! b. f the victim is alleged to be below : years of age and what is sought to be proved is that she is less than -1 years old! c. f the victim is alleged to be below -1 years of age and what is sought to be proved is that she is less than -; years old. K=. n the absence of a certificate of live birth, authentic document, or the testimony of the victimLs mother or relatives concerning the victimLs age, the complainantLs testimony will suffice provided that it is e+pressly and clearly admitted by the accused. K8. t is the prosecution that has the burden of proving the age of the offended party. %he failure of the accused to ob)ect to the testimonial evidence regarding age shall not be ta3en against him. K7. %he trial court should always ma3e a categorical finding as to the age of the victim.K %hus, although the defense does not contest the age of the victim, it is still essential that the prosecution present independent proof thereof, pursuant to Ao. 8 of said guidelines. #s a matter of fact, the minority of the victim must be proved with equal certainty and clearness as the crime itself. Under Section ==, $ule -2> of the $ules on Cvidence, a birth certificate is the best evidence of a personLs date of birth. n the instant case, the prosecution did not present the certificates of live birth of both 9ylene and /elinda or other similar authentic documents to prove their ages. Aot even the victimsL mother or the victims themselves, or any other relative qualified to testify on matters respecting pedigree, were presented by the prosecution to establish the victimsL ages at the time the crimes were committed. Such failure of the prosecution to discharge its burden constrains this Court to hold that the qualifying circumstance of minority cannot be appreciated in these cases. PEOP E OF T'E P'! !PP!NE% vs. MAR ON MORA DE >".R. No. 161D7B. *anuary 17# 5BB6.A Eaving been positively and unmista3ably identified by the complainant as her rapist, the appellantLs defense of alibi cannot prosper. Categorical and consistent positive identification, a"sent an% s-o6ing of ill;1otive on t-e part of t-e e%e6itness testif%ing t-ereon, prevails over t-e defenses of denial and ali"i 6-ic-, if not su"stantiated "% clear and convincing proof, constitute self;serving evidence undeserving of 6eig-t in la6. #libi, li3e denial, is inherently wea3

and easily fabricated. Bor this defense to )ustify an acquittal, the following must be established: the presence of the appellant in another place at the time of the commission of the offense and the physical impossibility for him to be at the scene of the crime. %hese requisites have not been met. 'E!R% OF O&RDE% %AEE %ABANPAN vs. A BERTO C. COMORPO%A >".R. No. 1C5DB4. Au0ust 15# 5BB6.A Pleadings filed via fa+ machines are not considered originals and are at best e+act copies. #s such, they are not admissible in evidence, as there is no way of determining whether they are genuine or authentic. %he Certification, on the other hand, is being contested for bearing a facsimile of the signature of CCA$ &fficer ?ose B. %agorda. %he facsimile referred to is not the same as that which is alluded to in @arvida. %he one mentioned here refers to a facsimile signature, which is defined as a signature produced by mechanical means but recogni*ed as valid in ban3ing, financial, and business transactions. Aote that the CCA$ officer has not disclaimed the Certification. n fact, the FCA$ regional director has ac3nowledged and used it as reference in his &rder dated #pril 1, -66;: K. . . . CCA$ &fficer ?ose B. %agorda, in a LCC$% B C#% &AL dated 11 ?uly -66:, certified among others, that: . . . per records available in his &ffice, . . . the controverted lot . . . was not allocated to any person . . . .K f the Certification were a sham as petitioner claims, then the regional director would not have used it as reference in his &rder. nstead, he would have either verified it or directed the CCA$ officer to ta3e the appropriate action, as the latter was under the formerLs direct control and supervision. PetitionersL claim that the Certification was raised for the first time on appeal is incorrect. #s early as the pretrial conference at the 9unicipal %rial Court ,9%C., the CCA$ Certification had already been mar3ed as evidence for respondents as stated in the Pre<trial &rder. %he Certification was not formally offered, however, because respondents had not been able to file their position paper. Neit;er t;e rules o: 1ro<edure nor =uris1ruden<e would san<tion t;e ad3ission o: eviden<e t;at ;as not /een :or3ally o::ered durin0 t;e trial. But t;is evidentiary rule is a11li<a/le only to ordinary trials# not to <ases <overed /y t;e rule on su33ary 1ro<edure G <ases in w;i<; no :ull,/lown trial is ;eld Probative value of the #ffidavit of Petitioner"s witnesses Petitioners assert that the C# erred in disregarding the #ffidavits of their witnesses, insisting that the $ule on Summary Procedure authori*es the use of affidavits. %hey also claim that the failure of respondents to file their position paper and counter<affidavits before the 9%C amounts to an admission by silence. T-e ad1issi"ilit% of evidence s-ould not "e confused 6it- its pro"ative value. Ad1issi"ilit% refers to t-e 7uestion of 6-et-er certain pieces of evidence are to "e considered at all, 6-ile pro"ative value refers to t-e 7uestion of 6-et-er t-e ad1itted evidence proves an issue. T-us, a particular ite1 of evidence 1a% "e ad1issi"le, "ut its evidentiar% 6eig-t depends on 9udicial evaluation 6it-in t-e guidelines provided "% t-e rules of evidence. (hile in summary proceedings affidavits are admissible as the witnessesL respective testimonies, the failure of the adverse party to reply does not ipso facto render the facts, set forth therein, duly proven. Petitioners still bear the burden of proving their cause of action, because they are the ones asserting an affirmative relief. PEOP E OF T'E P'! !PP!NE% vs. %AT&RN!NO T&PPA >".R. Nos. 164@D5,DC. *anuary 16# 5BB6.A %he &ffice of the Solicitor @eneral counters that findings of the trial court during the bail hearing were but a preliminary appraisal of the strength of the prosecutionLs evidence for the limited purpose of determining whether appellant is entitled to be released on bail during the pendency of the trial. Eence, we agree with the &S@ that said findings should not be construed as an immutable evaluation of the prosecutionLs evidence. t is settled that the assessment of the prosecution evidence presented during bail hearings in capital offenses is preliminary and intended only for the purpose of granting or denying applications for the provisional release of the accused. TEODORO 9. 9AT!"BA9 vs. T'E %AND!"ANBA$AN >".R. No. 1?B1D6. *uly 1B# 5BB6.A # careful scrutiny of the documentary evidence adduced by the prosecution does not support the charge of violation of Section 2, paragraph ,e. of $# 2>-6, as amended, in the instant information against the petitioners. Significantly, the said pieces of documentary evidence were offered only for the purpose of establishing the participation and liability of their co<accused, $obert /alao, as noted in the written Bormal &ffer of C+hibits 28 of the prosecution dated September 11, -66:. %he same was prepared and signed by #tty. Aicanor D. Dillarosa, counsel of the private complainant, with the written approval of Prosecutor 9anuel 9. Corpu* of the &ffice of the Special Prosecutor. n this connection, the rule is e+plicit that courts should consider the evidence only for the purpose for which it is offered. %he prosecution relies heavily on AE# /oard $esolution Ao. 1=82 dated 9arch -1, -661 to establish the alleged conspiracy between the petitioners and their co<accused. Eowever, the Court is bothered by the une+plained

failure of the prosecution to include in its formal offer of e+hibits such a very vital piece of evidence in proving the e+istence of the alleged conspiracy among the petitioners. 5e e1p-asi2e t-at an% evidence a part% desires to su"1it for t-e consideration of t-e court 1ust for1all% "e offered "% -i1. Suc- a for1al offer is necessar% "ecause it is t-e dut% of t-e 9udge to rest -is findings of fact and -is 9udg1ent strictl% on t-e evidence offered "% t-e parties at t-e trial$ and no finding of fact can "e sustained if not supported "% suc- evidence. Docu1ents not regularl% received in evidence during t-e trial 6ill not "e considered in disposing of t-e issues in an action. REP&B !C OF T'E P'! !PP!NE% vs. 'ONORAB E %AND!"ANBA$AN and FERD!NAND E. MARCO% >".R. No. 1C51C?. *uly 1C# 5BB6.A Berdinand ?r.Ls pronouncements, ta3en in conte+t and in their entirety, were a confirmation of respondents" recognition of their ownership of the Swiss ban3 deposits. #dmissions of a party in his testimony are receivable against him. f a party, as a witness, deliberately concedes a fact, such concession has the force of a )udicial admission. t is apparent from Berdinand ?r.Ls testimony that the 9arcos family agreed to negotiate with the Philippine government in the hope of finally putting an end to the problems besetting the 9arcos family regarding the Swiss accounts. %his was doubtlessly an ac3nowledgment of ownership on their part. %he rule is that the testimony on the witness stand parta3es of the nature of a formal )udicial admission when a party testifies clearly and unequivocally to a fact which is peculiarly within his own 3nowledge. (e have always adhered to the familiar doctrine that an admission made in the pleadings cannot be controverted by the party ma3ing such admission and becomes conclusive on him, and that all proofs submitted by him contrary thereto or inconsistent therewith should be ignored, whether an ob)ection is interposed by the adverse party or not. %his doctrine is embodied in Section =, $ule -16 of the $ules of Court. n the absence of a compelling reason to the contrary, respondentsL )udicial admission of ownership of the Swiss deposits is definitely binding on them. %he individual and separate admissions of each respondent bind all of them pursuant to Sections 16 and 2-, $ule -2> of the $ules of Court. T;e de<larations o: a 1erson are ad3issi/le a0ainst a 1arty w;enever a H1rivity o: estateH eIists /etween t;e de<larant and t;e 1arty# t;e ter3 H1rivity o: estateH 0enerally denotin0 a su<<ession in ri0;ts. Consequently# an ad3ission o: one in 1rivity wit; a 1arty to t;e re<ord is <o31etent. )it;out dou/t# 1rivity eIists a3on0 t;e res1ondents in t;is <ase. And w;ere several <o,1arties to t;e re<ord are =ointly interested in t;e su/=e<t 3atter o: t;e <ontroversy# t;e ad3ission o: one is <o31etent a0ainst all. PEOP E OF T'E P'! !PP!NE% vs. RAQ&!M P!N&E A >".R. Nos. 1?B454,5D. Fe/ruary 6# 5BB6.A #ccused<appellant further argues that the prosecution did not present Eenry Eualde because his testimony would be adverse to the case. (e are not persuaded. t is the prosecution that determines who among its witnesses are to testify in court, and it is neither for the accused nor the court to override that prerogative. Corollarily, the failure of the prosecution to present a particular witness does not give rise to the presumption that evidence willfully suppressed would be adverse if produced, where that evidence is at the disposal of both parties or where the only ob)ect of presenting the witness would be to provide corroborative or cumulative evidence. Binally, accused<appellant contends that the trial )udgeLs intervention during cross<e+amination of the prosecution witnesses was pre)udicial to him. Eowever, a scrutiny of the questions propounded by the trial )udge, fails to disclose any bias on his part which would pre)udice accused<appellant. %he questions were merely clarificatory. %he trial court )udge is not an idle arbiter during a trial. Ee can propound clarificatory questions to witnesses in order to ferret out the truth. %he impartiality of a )udge cannot be assailed on the ground that he as3ed clarificatory questions during the trial. "RACE *. "ARC!A vs. REDER!C9 A. REC!O >".R. No. 16D655. O<to/er 5# 5BB1A # divorce obtained abroad by an alien may be recogni*ed in our )urisdiction, provided such decree is valid according to the national law of the foreigner. Eowever, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. &ur courts do not ta3e )udicial notice of foreign laws and )udgments! hence, li3e any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence.

Q&E%T!ON% AND AN%)ER% BA%ED ON REMED!A A) *&R!%PR&DENCE C!-! PROCED&RE Q. Eow is )urisdiction over the person of the defendant acquired by the trial court' Eit;er /y ;is voluntary a11earan<e in <ourt and ;is su/3ission to its aut;ority or /y servi<e o: su33ons. %he service of summons and the complaint on the defendant is to inform him that a case has been filed against him and, thus, enable him to defend himself. Ee is, thus, put on guard as to the demands of the plaintiff or the petitioner. (ithout such service in the absence of a valid waiver renders the )udgment of the court null and void. ?urisdiction cannot be acquired by the court on the person of the defendant even if he 3nows of the case against him unless he is validly served with summons. Summons and complaint may be served on the defendant either by handing a copy thereof to him in person, or, if he refuses to receive and sign for it, by tendering it to her. Eowever, if there is impossibility of prompt service of the summons personally on the defendant despite diligent efforts to find him, service of the summons may be effected by substituted service as provided in Section :, $ule -= of the said $ules: SCC. :. Substituted service. M f, for )ustifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected ,a. by leaving copies of the summons at the defendantLs residence with some person of suitable age and discretion then residing therein, or ,b. by leaving the copies of defendantLs office or regular place of business with some competent person in charge thereof. * Anc-eta vs. Anc-eta, 0R? 14# ',, )arc- 4, !,,4 ) Q. (hen can the court resort to substituted service' n 9iranda v. Court of #ppeals, we held that the modes of service should be strictly followed in order that the court may acquire )urisdiction over the person of the defendant. %hus, it is only when a defendant cannot be served personally within a reasonable time that substituted service may be made by stating the efforts made to find him and personally serve on him the summons and complaint and the fact that such effort failed. %his statement should be made in the proof of service to be accomplished and filed in court by the sheriff. %his is necessary because substituted service is a derogation of the usual method of service. t has been held that substituted service of summons is a method e+traordinary in character! hence, may be used only as prescribed and in the circumstances categori*ed by statutes. * Anc-eta vs. Anc-eta, 0R? 14# ',, )arc- 4, !,,4 ) Q. #re indispensable parties required to be )oined' $E%. Section :, $ule 2 of the $ules of Court, as amended, requires indispensable parties to be )oined as plaintiffs or defendants. %-e 9oinder of indispensa"le parties is 1andator%. 5it-out t-e presence of indispensa"le parties to t-e suit, t-e 9udg1ent of t-e court cannot attain real finalit%. Strangers to a case are not bound by the )udgment rendered by the court. %he absence of an indispensable party renders all subsequent actions of the court null and void. Lac3 of authority to act not only of the absent party but also as to those present. %he responsibility of impleading all the indispensable parties rests on the petitionerOplaintiff. , Do1ingo vs. Sc-eer. Q. (ill the non<)oinder of an indispensable party be a ground for the dismissal of the petition' NO. %he non<)oinder of indispensable parties is not a ground for the dismissal of an action. Parties may be added by order of the court on motion of the party or on its own initiative at any stage of the action andOor

such times as are )ust. f the petitionerOplaintiff refuses to implead an indispensable party despite the order of the court, the latter may dismiss the complaintOpetition for the petitionerOplaintiffs failure to comply therefor. /Do1ingo vs. Sc-eer) Q. # case for collection of sum of money was filed by respondent against herein petitioner. %he sheriff failed to serve the summons intended for the petitioner because the former could not locate the petitionerLs address as indicated in the complaint. %hereafter, petitioner filed a 9otion to Fismiss the complaint on the ground of lac3 of )urisdiction over his person. %he court denied said motion and ordered the issuance of alias summons on the petitioner. s the denial and issuance of alias summon proper ' $E%. %he trial court was merely e+ercising its discretion under $ule -7, Section 2 of the -66: $ules of Civil Procedure when it denied the petitionerLs motion to dismiss. Under said rule, after hearing the motion, a )udge may dismiss the action, deny the motion to dismiss or order the amendment of the pleading. %he trial court denied the motion to dismiss based on its finding that the issues alleged by the respondent in its complaint could not be resolved fully in the absence of the petitioner. n its desire to resolve completely the issues brought before it, the trial court deemed it fitting to properly acquire )urisdiction over the person of the petitioner by ordering the issuance of alias summons on the petitioner. Cvidently, the trial court acted well within its discretion. * Te- vs. CA, 0R? 14', &, April !4, !,, ) Q. (hen will the rule on forum shopping apply' T;e rule on :oru3 s;o11in0 a11lies w;ere t;e ele3ents o: litis 1endentia are 1resent or w;ere a :inal =ud03ent in one <ase will a3ount to res =udi<ata in t;e ot;er. $es )udicata applies only where )udgment on the merits is finally rendered on the first. *David vs. Spouses ?avarro) Q. (ill subsequent compliance with the requirement to file a certificate of non<forum shopping cure the defect to file the same in the first instance' NO. %his Court held in 9elo vs. Court of #ppeals, et al., that the requirement under #dministrative Circular Ao. >=<6= for a certificate of non<forum shopping is mandatory. %he subsequent compliance with said requirement does not e+cuse a partyLs failure to comply therewith in the first instance. n those cases where this Court e+cused the non<compliance with the requirement of the submission of a certificate of non<forum shopping, it found special circumstances or compelling reasons which made the strict application of said Circular clearly un)ustified or inequitable. n this case, however, the petitioner offered no valid )ustification for her failure to comply with the Circular. * Fato% vs. RTC, 0R? 1!6& , Ae"ruar% 1', !,, ) Q. s there a valid motion for reconsideration when there is a failure to incorporate any notice of hearing' NO. Section 1, $ule 2: of the $ules of Court provides that a motion for reconsideration or a motion for a new trial 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. Such written notice is that prescribed in Sections = and 8, $ule -8 of the $ules of Court. Under Section =, paragraph 1 of said rule, a notice of hearing on a motion shall be served by the movant to all the parties concerned at least three days before the date of hearing. Section 8 of the same rule requires that the notice of hearing shall be directed to the parties concerned and shall state the time and place of the hearing of the motion. %he requirements, far from being merely technical and procedural as claimed by the petitioners, are vital elements of procedural due process.%he requirements entombed in Sections = and 8 of $ule -8 of the $ules of Court are mandatory and non<compliance therewith is fatal and renders the motion pro forma. /Repu"lic vs. (eralta 0RH1#, !', /une 1&,!,, ) Q. Can the appellate court resolve issues that are not raised on appeal' $E%. %he Court has ruled in a number of cases that the appellate court is accorded a broad discretionary power to waive the lac3 of proper assignment of errors and to consider errors not assigned. t is clothed with ample authority to review rulings even if they are not assigned as errors in the appeal. nasmuch as the Court of #ppeals may consider grounds other than those touched upon in the decision of the trial court and uphold the same on the basis of such other grounds, the Court of #ppeals may, with no less authority, reverse the decision of the trial court on the basis of grounds other than those raised as errors on appeal. (e have applied this rule, as a matter of e+ception, in the following instances:

,-. ,1. ,2. ,=. ,8. ,7.

@rounds not assigned as errors but affecting )urisdiction over the sub)ect matter! 9atters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law! 9atters not assigned as errors on appeal but consideration of which is necessary in arriving at a )ust decision and complete resolution of the case or to serve the interests of )ustice or to avoid dispensing piecemeal )ustice! 9atters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored! 9atters not assigned as errors on appeal but closely related to an error assigned! and 9atters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent. / Iiron Transpo. Is. CA, 0RH11',!,,April 4, !,, )

Q. s it a ministerial duty for the sheriff to e+ecute the )udgment of the court ' $es. T;is Court ;as <onsistently ;eld t;at Ht;e s;eri::Js duty to eIe<ute a =ud03ent is 3inisterial.H # purely ministerial act is one Kwhich an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of the legal authority, without regard to the e+ercise of his own )udgment upon the propriety of the act done.K /E+ero v&* 0a1ati City Sheriff&. Q. (hat are the grounds to annul the )udgment or final order or resolution in civil actions of the $%C' #n original action in the Court of #ppeals under $ule =: of the $ules of Court, as amended, to annul a )udgment or final order or resolution in civil actions of the $%C may be based on two grounds: ,a. e+trinsic fraud! or ,b. lac3 of )urisdiction. f based on e+trinsic fraud, the remedy is sub)ect to a condition precedent, namely, the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. %he petitioner must allege in the petition that the ordinary remedies of new trial, appeal, petition for relief from )udgment, under $ule 2; of the $ules of Court are no longer available through no fault of hers! otherwise, the petition will be dismissed. f the petitioner fails to avail of the remedies of new trial, appeal or relief from )udgment through her own fault or negligence before filing her petition with the Court of #ppeals, she cannot resort to the remedy under $ule =: of the $ules! otherwise, she would benefit from her inaction or negligence. t is not enough to allege in the petition that the said remedies were no longer available through no fault of her own. %he petitioner must also e+plain and )ustify her failure to avail of such remedies. %he safeguard was incorporated in the rule precisely to avoid abuse of the remedy. #ccess to the courts is guaranteed. /ut there must be limits thereto. &nce a litigantLs rights have been ad)udicated in a valid final )udgment of a competent court, he should not be granted an unbridled license to sue anew. %he prevailing party should not be ve+ed by subsequent suits. Q' n a petition for annulment of )udgment under $ule =:, is it always necessary to allege that the ordinary remedy of new trial or reconsideration is no longer available' t depends on what ground the petition is based. #n original action in the Court of #ppeals under $ule =: of the $ules of Court, as amended, to annul a )udgment or final order or resolution in civil actions of the $%C may be based on two grounds: , a8 eItrinsi< :raud( or F/8 la<k o: =urisdi<tion . f based on e+trinsic fraud, the remedy is sub)ect to a condition precedent, namely, the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. %he petitioner must allege in the petition that the ordinary remedies of new trial, appeal, petition for relief from )udgment, under $ule 2; of the $ules of Court are no longer available through no fault of hers! otherwise, the petition will be dismissed. f the petitioner fails to avail of the remedies of new trial, appeal or relief from )udgment through her own fault or negligence before filing her petition with the Court of #ppeals, she cannot resort to the remedy under $ule =: of the $ules! otherwise, she would benefit from her inaction or negligence. >n a case 6-ere a petition for t-e annul1ent of a 9udg1ent or final order of t-e RTC filed under Rule 4' of t-e Rules of Court is grounded on lac. of 9urisdiction over t-e person of t-e defendantJrespondent or over t-e nature or su"9ect of t-e action, t-e petitioner need not allege in t-e petition t-at t-e ordinar% re1ed% of ne6 trial or reconsideration of t-e final order or 9udg1ent or appeal t-erefro1 are no longer availa"le t-roug- no fault of -er o6n. %his is so because a )udgment rendered or final order issued by the $%C without )urisdiction is null and void and may be assailed any time either collaterally or in a direct action or by resisting such )udgment or final order in any action or proceeding whenever it is invo3ed, unless barred by laches. * Anc-eta vs. Anc-eta, 0R? 14# ',, )arc- 4, !,,4 )

Q. (hat is the nature of a )udgment on the question of ownership in e)ectment cases' Prefatorily, in e)ectment cases, the issue is the physical or material possession ,possession de facto. and any pronouncement made by the trial court on the question of ownership is provisional in nature. # )udgment rendered in e)ectment cases shall not bar an action between the same parties respecting title to the land and shall not be conclusive as to the facts found therein in a case between the same parties upon a different cause of action involving possession of the same property. * Alorencio vs. de leon, 0R? 149#',, )arc- 1!, !,,4 ) %PEC!A PROCEED!N"% Q. 9ay an interlocutory order be sub)ect of a petition for certiorari under $ule 78 of the $ules of Court' NO. %u<; order is 3erely an interlo<utory one and t;ere:ore not a11eala/le. Neit;er <an it /e t;e su/=e<t o: a 1etition :or <ertiorari. Such order may only be reviewed in the ordinary course of law by an appeal from the )udgment after trial. #lthough the special civil action for certiorari may be availed of in case there is grave abuse of discretion or lac3 of )urisdiction on the part of the lower court, or body, it would be a breach of orderly procedure to allow a party to come before the appellate court every time an order is issued with which a party does not agree. Eence, as a general rule, there must first be a )udgment on the merits of the case before it may be questioned via a special civil action for certiorari. %he remedy of the aggrieved party is to file an answer to the complaint and to interpose as defenses the ob)ections raised in his motion to dismiss, proceed to trial, and in case of an adverse decision, to elevate the entire case by appeal in due course. Eowever, the rule is not ironclad. Under certain situations, recourse to certiorari or mandamus is considered appropriate, that is, ,a. when the trial court issued the order without or in e+cess of )urisdiction! ,b. where there is patent grave abuse of discretion by the trial court! or, ,c. appeal would not prove to be a speedy and adequate remedy as when an appeal would not promptly relieve a defendant from the in)urious effects of the patently mista3en order maintaining the plaintiffs" baseless action and compelling the defendant needlessly to go through protracted trial and clogging the court doc3ets by another futile case. /Ca+alle& v&* 'ere23Si&on. S. (hat do you mean by lac3 of )urisdiction, e+cess of )urisdiction and grave abuse of discretion' (hen will the special civil action for certiorari lie' T;e tri/unal a<ts wit;out =urisdi<tion i: it does not ;ave t;e le0al 1ur1ose to deter3ine t;e <ase( t;ere is eI<ess o: =urisdi<tion w;ere t;e tri/unal# /ein0 <lot;ed wit; t;e 1ower to deter3ine t;e <ase# overste1s its aut;ority as deter3ined /y law# T;ere is 0rave a/use o: dis<retion w;ere t;e tri/unal a<ts in a <a1ri<ious# w;i3si<al# ar/itrary or des1oti< 3anner in t;e eIer<ise o: its =ud03ent and is equivalent to la<k o: =urisdi<tion. t was incumbent upon the private respondent to adduce a sufficiently strong demonstration that the $%C acted whimsically in total disregard of evidence material to, and even decide of, the controversy before certiorari will lie. A s1e<ial <ivil a<tion :or <ertiorari is a re3edy desi0ned :or t;e <orre<tion o: errors o: =urisdi<tion and not errors o: =ud03ent. (hen a court e+ercises its )urisdiction, an error committed while so engaged does not deprive it of its )urisdiction being e+ercised when the error is committed. *C-ing vs. Court of Appeals) Q. (hat should the sheriff include in his enforcement of the writ of attachment' (hat are the remedies in case the sheriff fails to attach the right properties' (hat is the procedure followed by the court' %;eri:: 3ay atta<; only t;ose 1ro1erties o: t;e de:endant a0ainst w;o3 a writ o: atta<;3ent ;as /een issued /y t;e <ourt. (hen the sheriff erroneously levies on attachment and sei*es the property of a third person in which the said defendant holds no right or interest, the superior authority of the court which has authori*ed the e+ecution may be invo3ed by the aggrieved third person in the same case. Upon application of the third person, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the e+ecution of the writ of attachment, more specifically if he has indeed levied on attachment and ta3en hold of property not belonging to the plaintiff. f so, the court may then order the sheriff to release the property from the erroneous levy and to return the same to the third person. n resolving the motion of the third party, the court does not and cannot pass upon the question of the title to the property with any character of finality. t can treat the matter only insofar as may be necessary to decide if the sheriff has acted correctly or not. f the claimantLs proof does not persuade the court of the validity of the title, or right of possession thereto, the claim will be denied by the court. %he aggrieved third party may

also avail himself of the remedy of KterceriaK by e+ecuting an affidavit of his title or right of possession over the property levied on attachment and serving the same to the office ma3ing the levy and the adverse party. Such party may also file an action to nullify the levy with damages resulting from the unlawful levy and sei*ure, which should be a totally separate and distinct action from the former case. %he abovementioned remedies are cumulative and any one of them may be resorted to by one third<party claimant without availing of the other remedies. *Bng vs. Tating$ C-ing vs. CA) Q. (hat will be the effect if no supersedeas bond has been filed on appeal to stay the e+ecution' Court is 3andated to issue a writ o: eIe<ution , conformably to Section -6, $ule :> of the $ules of Court, as amended. *David vs. Spouses ?avarro) Q. (hether or not the petitioner in a petition for review on certiorari can raise questions of facts' t bears stressing, however, that in a petition for review on certiorari, only questions of law may be raised in said petition. %he )urisdiction of this Court in cases brought to it from the Court of #ppeals is confined to reviewing and reversing the errors of law ascribed to it, findings of facts being conclusive on this Court. %he Court is not tas3ed to calibrate and assess the probative weight of evidence adduced by the parties during trial all over again. 1- n those instances where the findings of facts of the trial court and its conclusions anchored on said findings are inconsistent with those of the Court of #ppeals, this Court does not automatically delve into the record to determine which of the discordant findings and conclusions should prevail and to resolve the disputed facts for itself. %his Court is tas3ed to merely determine which of the findings of the two tribunals are conformable to the facts at hand. 11 So long as the findings of facts of the Court of #ppeals are consistent with or are not palpably contrary to the evidence on record, this Court shall decline to embar3 on a review on the probative weight of the evidence of the parties.*Superlines Transpo vs. >CC) CR!M!NA PROCED&RE Q. Can unmar3ed sworn statements be used to convict an appellant' NO. Private complainantLs Sworn Statements, which formed part of the records of the preliminary investigation, cannot be used to convict appellant, because they do not form part of the records of the case in the $%C. %hey were not mar3ed, much less formally offered before it. Cvidence not formally offered cannot be ta3en into consideration in disposing of the issues of the case. , (eople of t-e (-ils. vs. Ra1ire2, 0R? 1#,,'9; &,, /une 1,,!,,4 8 Q. Should cases where an improvident plea of guilt is entered be remanded always to the trial court' NO. mprovident plea of guilty on the part of the accused when capital crimes are involved should be avoided since he might be admitting his guilt before the court and thus forfeit his life and liberty without having fully comprehended the meaning and import and consequences of his plea. %he trial court convicted the appellants of robbery with homicide on the basis of their plea of guilty during their rearraignment. Ordinarily# t;e <ase s;ould /e re3anded to t;e trial <ourt :or t;e 1rose<ution and t;e a11ellants to addu<e t;eir res1e<tive eviden<es. 'owever# t;e re<ords s;ow t;at des1ite t;e 1lea o: 0uilty o: t;e a11ellants# t;e 1rose<ution addu<ed its eviden<e. %he appellants li3ewise adduced their evidence to prove their defenses. T;e Court will resolve t;e <ase on its 3erits inde1endent o: t;e 1lea o: 0uilty o: t;e a11ellants rat;er t;an re3and t;e <ase to t;e trial <ourt. F (eople vs. Daniela, 0.R. ?o. 1 9! ,. April !4, !,, ) Q. s an accused deprived of his right to cross<e+amine a witness when the cross e+amination of such witness was not conducted due to his counsel"s own doing' NO. $ight to cross<e+amine is a constitutional right anchored on due process. t is a statutory right found in Section -,f., $ule --8 of the $evised $ules of Criminal Procedure which provides that the accused has the right to confront and cross<e+amine the witnesses against him at the trial. Eowever, the right has always been understood as requiring not necessarily an actual cross<e+amination but merely an opportunity to e+ercise the right to cross<e+amine if desired. (hat is proscribed by statutory norm and )urisprudential precept is the absence of the opportunity to cross<e+amine. %he right is a personal one and may be waived e+pressly or impliedly. %here is an implied waiver when the party was given the opportunity to confront and cross<e+amine an opposing witness but failed to ta3e advantage of it for reasons attributable to himself alone. f by his

actuations, the accused lost his opportunity to cross<e+amine wholly or in part the witnesses against him, his right to cross<e+amine is impliedly waived. * (eople vs. =scote, 0.R. ?o. 14,'#6. April 4, !,, ) Q. # police inspector with a salary grade of 12 was charged with 9urder. #fter preliminary hearing, the $%C ordered the transmittal of the case to the Sandiganbayan on the ground that the crime was committed by the accused Iin relation to his office.J Foes the Sandiganbayan have )urisdiction over the case' NO. Under the law, even if the offender committed the crime charged in relation to his office but occupies a position corresponding to a salary grade below K1:,K the proper $egional %rial Court or 9unicipal %rial Court, as the case may be, shall have e+clusive )urisdiction over the case conformably to Sections 1> and 21 of /atas Pambansa /lg. -16, as amended by Section 1 of $.#. Ao. :76-. n cases where none of the principal accused are occupying positions corresponding to salary grade K1:K or higher, as prescribed in the said $epublic #ct Ao. 7:8;, or PAP officers occupying the ran3 of superintendent or higher, or their equivalent, e+clusive )urisdiction thereof shall be vested in the proper $egional %rial Court, 9etropolitan %rial Court, 9unicipal %rial Court, and 9unicipal Circuit %rial Court, as the case may be, pursuant to their respective )urisdiction as provided in /atas Pambansa /lg. -16. Eowever, for the Sandiganbayan to have e+clusive )urisdiction under the said law over crimes committed by public officers in relation to their office, it is that the crime charged Q. s it necessary that accused be identified through 3nowledge of his name' NO. %he identification of a person is not solely through 3nowledge of his name. n fact, familiarity with physical features, particularly those of the face, is the best way to identify a person. &ne may be familiar with the face but not necessarily the name. %hus, it does not follow that to be able to identify a person, one must necessarily 3now his name. KC+perience shows that precisely because of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, can remember with a high degree of reliability the identity of criminals. (e have ruled that the natural reaction of victims of criminal violence is to strive to see the appearance of their assailants and observe the manner the crime was committed. 9ost often, the face and body movements of the assailant create an impression which cannot easily be erased from their memory.K $elatives of the victim have a natural 3nac3 for remembering the face of the assailant for they, more than anybody else, would be concerned with see3ing )ustice for the victim and bringing the malefactor to face the law. ,(eople of t-e (-ils. vs. De La Cru2, 0R? 1 1, #, Ae"ruar% !&, !,, ) Q. Eow is the crime charged in the information determined' n determining what crime is charged in an information, the material inculpatory facts recited therein describing the crime charged in relation to the penal law violated are controlling. (here the specific intent of the malefactor is determinative of the crime charged such specific intent must be alleged in the information and proved by the prosecution. f the primary and ultimate purpose of the accused is to 3ill the victim, the incidental deprivation of the victimLs liberty does not constitute the felony of 3idnapping but is merely a preparatory act to the 3illing, and hence, is merged into, or absorbed by, the 3illing of the victim. %he crime committed would either be homicide or murder. (hat is primordial then is the specific intent of the malefactors as disclosed in the information or criminal complaint that is determinative of what crime the accused is charged with M that of murder or 3idnapping. Specific intent is used to describe a state of mind which e+ists where circumstances indicate that an offender actively desired certain criminal consequences or ob)ectively desired a specific result to follow his act or failure to act. ,(eople of t-e (-ils. vs. Deli1 et. al., 0R? 14!'' , /anuar% !&, !,, 8 Q. s failure of the witnesses of the prosecution to appear at the pre<trial a ground for dismissal of the case under $# ;=62' NO. Under $.#. ;=62, the absence during pre<trial of any witness for the prosecution listed in the nformation, whether or not said witness is the offended party or the complaining witness, is not a valid ground for the dismissal of a criminal case. #lthough under the law, pre<trial is mandatory in criminal cases, the presence of the private complainant or the complaining witness is however not required. Cven the presence of the accused is not required unless directed by the trial court. t is enough that the accused is represented by his counsel. * (eople vs. Tac;An, 0R? 14&,,,, Ae"ruar% !',!,, )

Q. (ill the reinstatement of a case which was dismissed by the lower court without )urisdiction or with grave abuse of discretion amounting to lac3 or e+cess of )urisdiction constitute double )eopardy' NO. %he Court of #ppeals also erred in ruling that the reinstatement of the case does not place the private respondent in double )eopardy. %his Court ruled in Saldana vs. Court of #ppeals, et al. -2 that: (hen the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated to raise the defense of double )eopardy, three requisites must be present: ,-. a first )eopardy must have attached prior to the second! ,1. the first )eopardy must have been validly terminated! and ,2. the second )eopardy must be for the same offense as that in the first. Legal )eopardy attaches only ,a. upon a valid indictment, ,b. before a competent court, ,c. after arraignment, ,d. a valid plea having been entered! and ,e. the case was dismissed or otherwise terminated without the e+press consent of the accused ,People vs. Hlagan, 8; Phil. ;8-.. %he lower court was not competent as it was ousted of its )urisdiction when it violated the right of the prosecution to due process. n effect, the first )eopardy was never terminated, and the remand of the criminal case for further hearing andOor trial before the lower courts amounts merely to a continuation of the first )eopardy, and does not e+pose the accused to a second )eopardy. Q. (hether or not an information for Plunder which contains bribery ,#rticle 1-> of the $evised Penal Code., malversation of public funds or property ,#rticle 1-:, $evised Penal Code. and violations of Sec. 2,e. of $epublic #ct ,$# Ao. 2>-6. and Section :,d. of $# 7:-2, charges more than one offense, hence, in violation of the $ules of Court. NO. %he acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder. t should be stressed that the #nti<Plunder law specifically Section -,d. thereof does not ma3e any e+press reference to any specific provision of laws, other than $.#. Ao. :>;>, as amended, which coincidentally may penali*e as a separate crime any of the overt or criminal acts enumerated therein. %he said acts which form part of the combination or series of act are described in their generic sense. %hus, aside from LmalversationL of public funds, the law also uses the generic terms LmisappropriationL, LconversionL or LmisuseL of said fund. %he fact that the acts involved may li3ewise be penali*ed under other laws is incidental. %he said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be ta3en or to be understood as allegations charging separate criminal offenses punished under the $evised Penal Code, the #nti<@raft and Corrupt Practices #ct and Code of Conduct and Cthical Standards for Public &fficials and Cmployees.K,Serapio vs. Sandigan"a%an, ) Q. (hat is the remedy of the party whose motion to quash has been denied' Case law has it that a resolution of the Sandiganbayan denying a motion to quash the information is an interlocutory order and hence, not appealable. Aor can it be the sub)ect of certiorari. %he remedy available to petitioners after their motion to quash was denied by the Sandiganbayan was to proceed with the trial of the case, without pre)udice to their right to raise the question on appeal if final )udgment is rendered against them. ,Torrres vs. 0arc-itorena, 0R? 1# 666, Dece1"er !', !,,! ) Q. #ccused are public officials who are charged with violation of the #nti @raft and Corruption Law for having allegedly caused the reclamation of a piece of land registered in the name of the respondent. %hereafter, the Solicitor @eneral instituted a civil case for the reversion of the sub)ect land to the State. %he accused now prays that the criminal case against them be suspended on the ground of a pre)udicial question . %hey contend that it behooved the Sandiganbayan to have suspended the criminal proceedings pending final )udgment in the Civil Case because a )udgment in that case that the property sub)ect of the charge is foreshore land will belie the respondent"s claim that its proprietary right over the sub)ect property had been violated by the accused when they had the sub)ect property reclaimed. s the contention of the accused tenable' ?B. A pre9udicial 7uestion is understood in la6 as t-at 6-ic- 1ust precede t-e cri1inal action and 6-ic- re7uires a decision "efore a final 9udg1ent can "e rendered in t-e cri1inal action 6it- 6-ic- said 7uestion is closel% connected. T-e civil action 1ust "e instituted prior to t-e institution of t-e cri1inal action. n this case, the nformation was filed with the Sandiganbayan ahead of the complaint in Civil Case Ao. :-7> filed by the State with the $%C in Civil Case Ao. :-7>. %hus, no pre)udicial question e+ists. /esides, a final )udgment of the $%C in Civil Case Ao. :-7> declaring the property as foreshore land and hence, inalienable, is not determinative of the guilt or innocence of the petitioners in the criminal case. t bears stressing that unless and until declared null and void by a court of competent )urisdiction in an

appropriate action therefor, the titles of S$ over the sub)ect property are valid. S$ is entitled to the possession of the properties covered by said titles. t cannot be illegally deprived of its possession of the property by petitioners in the guise of a reclamation until final )udgment is rendered declaring the property covered by said titles as foreshore land. , >"id.) Q. (hat is the effect of SC Circular Ao. -6 with respect to the issuance of a search warrant' (e also held that Circular Ao. -6 was never intended to confer e+clusive )urisdiction on the C+ecutive ?udge mentioned therein! it is not a mandate for the e+clusion of all other courts and that a court whose territory does not embrace the place to be searched may issue a search warrant where the application is necessitated and )ustified by compelling consideration of urgency, sub)ect, time and place, thus: Cvidently, that particular provision of Circular Ao. -6 was never intended to confer e+clusive )urisdiction on said e+ecutive )udges. n view of the fact, however, that they were themselves directed to personally act on the applications, instead of farming out the same among the other )udges as was the previous practice, it was but necessary and practical to require them to so act only on applications involving search of places located within their respective territorial )urisdictions. %he phrase above quoted was, therefore, in the nature of an allocation in the assignment of applications among them, in recognition of human capabilities and limitations, and not a mandate for the e+clusion of all other courts . . . KUrgentK means pressing! calling for immediate attention. %he court must ta3e into account and consider not only the Ksub)ectK but the time and place of the enforcement of the search warrant as well. %he determination of the e+istence of compelling considerations of urgency, and the sub)ect, time and place necessitating and )ustifying the filing of an application for a search warrant with a court other than the court having territorial )urisdiction over the place to be searched and things to be sei*ed or where the materials are found is addressed to the sound discretion of the trial court where the application is filed, sub)ect to review by the appellate court in case of grave abuse of discretion amounting to e+cess or lac3 of )urisdiction. F (eople vs. ro""er C-iu, et al. 0.R. ?os. 14!91#;16. Ae"ruar% !', !,,4.4) Q. #n nformation was filed charging appellant 9ontane* of 9urder. Furing trial, appellant presented Faniel Sumaylo as surrebuttal witness. Sumaylo testified that he did not 3ill the victim but also stated that he did not 3now the 3iller. Eowever, the following day, Sumaylo e+ecuted an #ffidavit admitting to have 3illed the victim. #n #mended nfromation was then filed considering him as an additional accused. Sumaylo pleaded guilty to the lesser offense of Eomicide. #fter trial, the court rendered )udgment convicting the appellant of murder as principal and convicting Sumaylo of homicide. %he appellant filed a motion for the reconsideration of the decision. %he court issued an order partially granting the motion and convicting the appellant of murder, but only as an accomplice. %he appellant appealed the decision, asserting that there was no proof of conspiracy between him and Sumaylo. %he Court of #ppeals rendered )udgment reinstating the trial courtLs decision convicting the appellant of murder as principal by direct participation. #ppellant argues that it was illogical for the trial court to convict him of murder as an accomplice, although Sumaylo, who was the principal by direct participation for the 3illing of the victim, was convicted of homicide. %here is no evidence on record that he conspired with Sumaylo in 3illing the victim. Eis mere presence at the scene of the 3illing did not render him criminally liable as an accomplice. $ule on the contention of the appellant. T;e a11ellantJs su/3ission ;as no 3erit . Sumaylo"s testimony is given scant attention by this Court M K%he Court has held in a number of cases that a recantation of a testimony is e+ceedingly unreliable, for there is always the probability that such recantation may later on be itself repudiated. Courts loo3 with disfavor upon retractions, because they can easily be obtained from witnesses through intimidation or for monetary consideration. T-e "arefaced fact t-at Daniel Su1a%lo pleaded guilt% to t-e felon% of -o1icide is not a "ar to t-e appellant "eing found guilt% of 1urder as a principal. >t "ears stressing t-at Su1a%lo plea;"argained on -is re;arraign1ent. =ven if t-e pu"lic prosecutor and t-e fat-er of t-e victi1 agreed to Su1a%lo8s plea, t-e State is not "arred fro1 prosecuting t-e appellant for 1urder on t-e "asis of its evidence, independentl% of Su1a%lo8s plea of guilt. Aeither is the appellant entitled to acquittal merely because Sumaylo confessed, after the appellant had rested his case, to being the sole assailant. %he trial court disbelieved SumayloLs testimony that he alone 3illed the victim and that the appellant was not at all involved in the 3illing. %he Court of #ppeals affirmed the )udgment of the trial court. t bears stressing that when Sumaylo testified for the appellant on surrebuttal, he declared that he did not 3now who 3illed the victim. Ee even declared that the appellant did not 3ill the victim. Eowever, he made a complete volte<face when he e+ecuted an affidavit and testified that he alone 3illed the victim and that the appellant was not at all involved in the 3illing. (e are convinced that SumayloLs somersault was an afterthought, a last<ditch attempt to e+tricate the appellant from an inevitable conviction. / (eople vs. Cesar )ontane2 and Daniel Su1a%lo, 0R? 14&!#', )arc- 14,!,,4) Q. 9ay the trial court give retroactive application to the provisions of the $evised $ules of Criminal Procedure'

$E%. Alt-oug- t-e cri1e 6as co11itted "efore t-e Revised Rules of Cri1inal (rocedure too. effect, t-e sa1e s-ould "e applied retroactivel% "ecause it is favora"le to t-e appellant . Eence, the aggravating circumstance of nighttime should not be appreciated against him. %he nformation failed to allege the aggravating circumstance of nighttime as required by Section ;, $ule --> of the $evised $ules of Criminal Procedure, which reads: SCC. ;.Fesignation of the offense. M %he complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. f there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. * (eople vs. Torres, 0R? 1 4'66, /anuar% 16,!,,4 ) Q. Upon the sworn complaint of the victim Lucelle Serrano, two nformations for $ape and two nformations for acts of lascivousness were filed against her uncle, herein appellant. , Criminal cases, 6:<2;8, ::<2;7,::<2;: and 6:<2;; . %he appellant, assisted by counsel, pleaded not guilty during the arraignment. ?oint trial of all the cases ensued. #fter the prosecution had rested its case, the trial court reset the hearing for the appellant to adduce his evidence. (hen the case was called for trial as scheduled, his counsel manifested to the court that the appellant was changing his plea in Criminal Cases Aos. 6:<2;8 and 6:<2;: from Knot guiltyK to Kguilty.K Ee also manifested that he would no longer adduce any evidence in his defense in Criminal Cases Aos. 6:<2;7 and 6:<2;; because the prosecution failed to prove his guilt beyond reasonable doubt for the crimes charged therein. (hen told by the court that he could be sentenced to death for the rape charges, the appellant stood pat on his decision to plead guilty in Criminal Cases Aos. 6:< 2;8 and 6:<2;:, and to no longer present any evidence in his defense in the other two cases. %he appellant was re< arraigned in Criminal Cases Aos. 6:<2;8 and 6:<2;: with the assistance of the same counsel and entered his plea of guilty to the charges. %he trial court rendered )udgment convicting the appellant of all the crimes charged. &n appeal, the appellant does not contest his conviction for rape in Criminal Cases Aos. 6:<2;8 and 6:<2;7, and the validity of the proceedings in the said cases in the trial court. Ee pleads, however, that he be spared the death penalty. -.. n reviewing criminal cases, is the appellate court limited to the assigned errors' NO. #ppeal in a criminal case is a review de novo and the court is not limited to the assigned errors. 1- #n appeal thus opens the whole case for review, and the appellate tribunal may consider and correct errors though unassigned and even reverse the decision of the trial court on the grounds other than those the parties raised as errors. 11 1.. Fid the trial court err in appreciating the appellant"s plea of guilt' $E%. #ppellantLs Plea of @uilty in Criminal Case Ao. 6:<2;8 was mprudently 9ade. n Criminal Case Ao. 6:<2;8, the appellant was charged with qualified rape, i.e., the rape of his niece, who was a minor, punishable by death under #rticle 228 of the $evised Penal Code, as amended by $epublic #ct Ao. :786. &ndou/tedly# t;e a11ellant was <;ar0ed wit; a <a1ital o::ense. );en t;e a11ellant in:or3ed t;e trial <ourt o: ;is de<ision to <;an0e ;is 1lea o: Hnot 0uiltyH to H0uilty#H it /e;ooved t;e trial <ourt to <ondu<t a sear<;in0 inquiry into t;e voluntariness and :ull <o31re;ension o: t;e <onsequen<es o: ;is 1lea as 3andated /y %e<tion 7# Rule 117 o: t;e Revised Rules o: Cri3inal Pro<edure . >n (eople vs. Ca1a%, t-is Court enu1erated t-e follo6ing duties of t-e trial court under t-e rule@ 1. T-e court 1ust conduct a searc-ing in7uir% into t-e voluntariness and full co1pre-ension 3"% t-e accused4 of t-e conse7uences of -is plea$ !. T-e court 1ust re7uire t-e prosecution to present evidence to prove t-e guilt of t-e accused and precise degree of -is culpa"ilit%$ and . T-e court 1ust re7uire t-e prosecution to present evidence in -is "e-alf and allo6 -i1 to do so if -e desires. %he raison dLetre for the rule is that the courts must proceed with e+treme care where the imposable penalty is death, considering that the e+ecution of such sentence is irrevocable. %here is no hard and fast rule as to how the trial )udge may conduct a searching inquiry. t has been held, however, that the focus of the inquiry must be on the voluntariness of the plea and the full or complete comprehension by the accused of his plea of guilty so that it can truly be said that it is based on a free and informed )udgment. 2.. Eow should a searching inquiry be conducted' n People vs. #ran*ado, 17 we formulated the following guidelines as to how the trial court may conduct its searching inquiry:

,-.

#scertain from the accused himself ,a. how he was brought into the custody of the law! ,b. whether he had the assistance of a competent counsel during the custodial and preliminary investigations! and ,c. under what conditions he was detained and interrogated during the investigations. %hese the court shall do in order to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent or avenging quarters. ,1. #s3 the defense counsel a series of questions as to whether he had conferred with, and completely e+plained to, the accused the meaning and consequences of a plea of guilty. ,2. Clicit information about the personality profile of the accused, such as his age, socio<economic status, and educational bac3ground, which may serve as a trustworthy inde+ of his capacity to give a free and informed plea of guilty. ,=. nform the accused the e+act length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. Aot infrequently indeed an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or e+press remorse. t is the duty of the )udge to see to it that the accused does not labor under these mista3en impressions. ,8. $equire the accused to fully narrate the incident that spawned the charges against him or ma3e him reenact the manner in which he perpetrated the crime, or cause him to supply missing details or significance. n People vs. &stia, we held that the trial court is also required to probe thoroughly into the reasons or motivations, as well as the facts and circumstances for a change of plea of the accused and his comprehension of his plea! e+plain to him the elements of the crime for which he is charged as well as the nature and effect of any modifying circumstances attendant to the commission of the offense, inclusive of mitigating and aggravating circumstances, as well as the qualifying and special qualifying circumstances, and inform him of the imposable penalty and his civil liabilities for the crime for which he would plead guilty to. !n t;is <ase# t;e trial <ourt :ailed to 3ake a sear<;in0 inquiry into t;e a11ellantJs voluntariness and :ull <o31re;ension o: ;is 1lea o: 0uilty. =.. (ill an improvident plea of guilt automatically absolve the accused from criminal liability' NO. #s a rule, this Court has set aside convictions based on pleas of guilty in capital offenses because of the improvidence thereof, and when such plea is the sole basis of the condemnatory )udgment. 'owever# w;ere t;e trial <ourt re<eives# inde1endently o: ;is 1lea o: 0uilty# eviden<e to deter3ine w;et;er t;e a<<used <o33itted t;e <ri3es <;ar0ed and t;e 1re<ise de0ree o: ;is <ri3inal <ul1a/ility t;ere:or# ;e 3ay still /e <onvi<ted i: t;ere is a31le 1roo: on re<ord# not <ontin0ent on t;e 1lea o: 0uilty# on w;i<; to 1redi<ate <onvi<tion. n this case, the prosecution had already rested its case when the appellant decided to change his plea. n fact, the trial court granted the prosecutionLs motion that the evidence it had presented be considered proof of the degree of culpability of the appellant. t is, thus, incumbent upon this Court to determine whether the evidence adduced by the prosecution in Criminal Case Ao. 6:<2;8 is sufficient to establish beyond reasonable doubt the appellantLs guilt for qualified rape. C.8 Should the appellant be convicted of $ape in criminal case 6:<2;8' $E%. %he Prosecution #dduced Proof of the #ppellantLs @uilt /eyond $easonable Foubt of the Crime of $ape in Criminal Case Ao. 6:<2;8. (e have reviewed the evidence on record and we are convinced that the prosecution adduced proof beyond reasonable doubt that the appellate raped the victim in Aovember -667. %he victim declared in her sworn statement, on direct e+amination and her testimony on clarificatory questions made by the trial court, that indeed, the appellant raped her in Aovember -667. )e do not a0ree wit; t;e rulin0 o: t;e trial <ourt t;at t;e <ontents o: t;e sworn state3ent o: u<elle are ;earsay# si31ly /e<ause s;e did not testi:y t;ereon and 3erely identi:ied ;er si0natures t;erein. /y hearsay evidence is meant that 3ind of evidence which does not derive its value solely from the credence to be attributed to the witness herself but rests solely in part on the veracity and competence of some persons from whom the witness has received the information. t signifies all evidence which is not founded upon the personal 3nowledge of the witness from whom it is elicited, and which, consequently, is not sub)ect to cross<e+amination. %he basis for the e+clusion appears to lie in the fact that such testimony is not sub)ect to the test which can ordinarily be applied for the ascertainment of truth of testimony, since the declarant is not present and available for cross<e+amination. n criminal cases, the admission of hearsay evidence would be a violation of the constitutional provision while the accused shall en)oy the right to confront and cross<e+amine the witness testifying against him. "enerally# t;e a::idavits o: 1ersons w;o are not 1resented to testi:y on t;e trut; o: t;e <ontents t;ereo: are ;earsay eviden<e. %u<; a::idavit 3ust /e :or3ally o::ered in eviden<e and a<<e1ted /y t;e <ourt( ot;erwise# it s;all not /e <onsidered /y t;e <ourt :or t;e si31le reason t;at t;e <ourt s;all <onsider su<; eviden<e :or3ally o::ered and a<<e1ted.

n this case, Lucelle testified on and affirmed the truth of the contents of her sworn statement which she herself had given. #s gleaned from the said statement, she narrated how and when the appellant raped and sub)ected her to lascivious acts. She was cross<e+amined by the appellantLs counsel and answered the trial courtLs clarificatory questions. %he prosecution offered her sworn statement as part of her testimony and the court admitted the same for the said purpose without ob)ection on the part of the appellant. 7.. Should the appellant be convicted for qualified rape in criminal case 6:<2;7' $E%. %he Prosecution Proved /eyond $easonable Foubt that the #ppellant $aped the Dictim in Bebruary -66:. %he appellant admitted to the barangay chairman on 9arch 8, -66:, that he raped Lucelle in Bebruary -66:. Alt;ou0; t;e a11ellant was not assisted /y <ounsel at t;e ti3e ;e 0ave ;is state3ent to t;e /aran0ay <;air3an and w;en ;e si0ned t;e sa3e# it is still ad3issi/le in eviden<e a0ainst ;i3 /e<ause ;e was not under arrest nor under <ustodial investi0ation w;en ;e 0ave ;is state3ent . %he e+clusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures where the potentiality for compulsion, physical and psychological, is forcefully apparent. #s intended by the -6:- Constitutional Convention, this covers Kinvestigation conducted by police authorities which will include investigations conducted by the municipal police, the PC and the A/ and such other police agencies in our government.K %he barangay chairman is not deemed a law enforcement officer for purposes of applying Section -1,-. and ,2. of #rticle of the Constitution. Under these circumstances, it cannot be successfully claimed that the appellantLs statement before the barangay chairman is inadmissible. :.. (hat circumstances, if any, should the court consider in imposing the proper penalty upon the accused in a crime for rape' (ere they duly established in this case' NO. #rticle 228 of the $evised Penal Code, as amended by Section -- of $epublic #ct Ao. :786, which was the law in effect at the time of the commission of the sub)ect rapes, provides in part: I#$%. 228. (hen and how rape is committed. M $ape is committed by having carnal 3nowledge of a woman under any of the following circumstances. -. /y using force or intimidation! 1. (hen the woman is deprived of reason or otherwise unconscious! and 2. (hen the woman is under twelve years of age or is demented. %he crime of rape shall be punished by reclusion perpetua. (henever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. +++ +++ +++ %he death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: -. (hen the victim is under eighteen ,-;. years of age and the offender is a parent, ascendant, step< parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common<law spouse of the parent of the victim. +++ +++ +++J T;e quali:yin0 <ir<u3stan<es o: 3inority and relations;i1 3ust <on<ur. More i31ortantly# t;ey 3ust /e /ot; alle0ed and 1roved# in order to quali:y t;e <ri3e o: ra1e and warrant t;e i31osition o: t;e deat; 1enalty. n addition to the requirement that the qualifying and aggravating circumstance must be specifically alleged in the information, it must be established with certainty that the victim was below eighteen ,-;. years of age or that she was a minor at the time of the commission of the crime. t must be stressed that the severity of the death penalty, especially its irreversible and final nature once carried out, ma3es the decision<ma3ing process in capital offenses aptly sub)ect to the most e+acting rules of procedure and evidence. T;e relations;i1 /etween t;e a11ellant and t;e vi<ti3 ;as /een adequately esta/lis;ed. T;e alle0ations in /ot; !n:or3ations t;at t;e a11ellant is t;e vi<ti3Js Hun<le#H Ha relative /y <onsan0uinity wit;in t;e t;ird <ivil de0reeH is s1e<i:i< enou0; to satis:y t;e s1e<ial quali:yin0 <ir<u3stan<e o: relations;i1. T;e sa3e <annot# ;owever# /e said wit; res1e<t to t;e a0e o: t;e vi<ti3. n 'eople v* 'runa, the Court, after noting the divergent rulings on proof of age of the victim in rape cases, set out certain guidelines in appreciating age, either as an element of the crime or as qualifying circumstance !n t;e 1resent <ase# no /irt; <erti:i<ate or any si3ilar aut;enti< do<u3ent was 1resented and o::ered in eviden<e to 1rove u<elleJs a0e. (hile the victim testified that she was born on Bebruary -6, -6;7, therefore -- years old when the appellant twice raped her, the same will not suffice as the appellant did not e+pressly and clearly admit the same as required by Pruna. %he corroboration of LucelleLs mother as to her age is not sufficient either, as there is no evidence that the said certificate of birth was lost or destroyed or was

unavailable without the fault of the prosecution. %he fact that there was no ob)ection from the defense regarding the victimLs age cannot be ta3en against the appellant since it is the prosecution that has the burden of proving the same. 9oreover, the trial court did not ma3e a categorical finding of the victimLs minority, another requirement mandated by Pruna. ;.. %he appellantLs conviction for two counts of rape having been duly proven by the prosecution, we now come to the question of the penalty to be meted upon him. Should the accused be sentenced to death penalty' n the determination of whether the death penalty should be imposed on the appellant, the presence of an aggravating circumstance in the commission of the crime is crucial. n the cases at bar, although the relationship of uncle and niece between the appellant and the victim has been duly proven, the alternative circumstance of relationship under #rticle -8 of the $evised Penal Code cannot be appreciated as an aggravating circumstance against the appellant. (hile it is true that the alternative circumstance of relationship is always aggravating in crimes against chastity, regardless of whether the offender is a relative of a higher or lower degree of the offended party, it is only ta3en into consideration under #rticle -8 of the $evised Penal Code Kwhen the offended party is the spouse, ascendant, descendant, legitimate, natural or adopted brother or sister, or relative by affinity in the same degree of the offender .H %he relationship of uncle and niece is not covered by any of the relationships mentioned. 'en<e# :or t;e 1rose<utionJs :ailure to 1rove t;e a0e o: t;e vi<ti3 /y any 3eans set :ort; in Pruna# and <onsiderin0 t;at t;e relations;i1 o: un<le and nie<e is not <overed /y any o: t;e relations;i1s 3entioned in Arti<le 1C o: t;e Revised Penal Code# as a3ended# t;e a11ellant <an only /e <onvi<ted o: ra1e in its a00ravated :or3# t;e i31osa/le 1enalty :or w;i<; is re<lusion 1er1etua to deat;. T;ere /ein0 no 3odi:yin0 <ir<u3stan<es attendant to t;e <o33ission o: t;e <ri3es# t;e a11ellant s;ould /e senten<ed to su::er re<lusion 1er1etua :or ea<; <ount o: ra1e# <on:or3a/ly to Arti<le 7@ o: t;e Revised Penal Code. / (eople vs. <lit, 0R? 1 1'99;&,1, Ae"ruar% ! , !,,4 ) Q. Can a trial )udge e+amine a witness' $E%. %his Court emphasi*ed that a presiding )udge en)oys a great deal of latitude in e+amining witnesses within the course of evidentiary rules. %he presiding )udge should see to it that a testimony should not be incomplete or obscure. #fter all, the )udge is the arbiter and he must be in a position to satisfy himself as to the respective claims of the parties in the criminal proceedings. %he trial )udge must be accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to ma3e the record spea3 the truth. %rial )udges in this )urisdiction are )udges of both L#( and the B#C%S, and they would be negligent in the performance of their duties if they permitted a miscarriage of )ustice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. n the e+ercise of sound discretion he may put such question to the witness as will enable him to formulate a sound opinion as to the ability or the willingness of the witness to tell the truth. # )udge may e+amine or cross<e+amine a witness. Ee may propound clarificatory questions to test the credibility of the witness and to e+tract the truth. t cannot be ta3en against him if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party. Parenthetically, under Sections -6 to 1- of the $ule on C+amination of a Child (itness which too3 effect on Fecember -8, 1>>>, child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the e+amination if the same will further the interest of )ustice. &bligations to question should be couched in a manner so as not to mislead, confuse, frighten and intimidate the child: Sec. -6. 9&FC of Suestioning< %he court shall e+ercise control over the questioning of children so as to -. facilitate the ascertainment of the truth, 1. ensure that questions are stated in a form appropriate to the developmental level of the child, 2. protect children from harassment or undue harassment, and =. avoid waste of time. ,(eople vs. Ka.ingcio Canete, 0.R. ?o.14!9 ,,)arc- !&, !,, ) Q. Foes the failure to state the precise date the offense was committed ipso factor render an nformation for $ape defective on its face' NO. Bailure to specify the e+act dates or time when the rapes occurred does not ipso facto ma3e the information defective on its face. %he reason is obvious. %he precise date or time when the victim was raped is not an element of the offense. %he gravamen of the crime is the fact of carnal 3nowledge under any of the circumstances enumerated under #rticle 228 of the $evised Penal Code. #s long as it is alleged that the offense was committed at any time as near to the actual date when the offense was committed an information is sufficient. t is not necessary to state in the complaint or information the precise date the offense was committed e+cept when it is material ingredient of the offense. %he offense may be alleged to have been

committed on a date as near as possible to the actual date of its commission. , (eople vs. )auro, )arc14,!,, .8 Q. n a criminal case, what should be the contents of a valid )udgment' $ule -1>, Section 1 of the -6;8 $ules on Criminal Procedure, as amended, provides: KSCC. 1. Borm and contents of )udgment. M %he )udgment must be written in the official language, personally and directly prepared by the )udge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the accused and the law upon which the )udgment is based. f it is of conviction, the )udgment shall state ,a. the legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending the commission thereof, if there are any! ,b. the participation of the accused in the commission of the offense, whether as principal, accomplice, or accessory after the fact! ,c. the penalty imposed upon the accused! and ,d. the civil liability or damages caused by the wrongful act to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved or waived.K F(eople of t-e (-ils. vs. Li2ada, 0R? 14 46&;'1, /anuar% !4, !,, 8 Q. Eow is a criminal case revived' s there a need for a new preliminary investigation' %he case may be revived by the State within the time<bar provided in Section of $ule --:either by the refiling of the nformation or by the filing of a new nformation for the same offense or an offense necessarily included therein. %here would be no need of a new preliminary investigation. Lo6ever, in a case 6-erein after t-e provisional dis1issal of a cri1inal case, t-e original 6itnesses of t-e prosecution or so1e of t-e1 1a% -ave recanted t-eir testi1onies or 1a% -ave died or 1a% no longer "e availa"le and ne6 6itnesses for t-e State -ave e1erged, a ne6 preli1inar% investigation 1ust "e conducted "efore an >nfor1ation is refiled or a ne6 >nfor1ation is filed. # new preliminary investigation is also required if aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein! or if under a new criminal complaint, the original charge has been upgraded! or if under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal. F (eople vs. Lacson# 0.R. ?o. 1494# . April 1, !,, .) Q. Should the time<bar rule under the Section ; of $ule --: be applied retroactively' %he time<bar of two years under the new rule should not be applied retroactively against the State. n fi+ing the time<bar, the Court balanced the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum pre)udice to the State and the accused. t too3 into account the substantial rights of both the State and of the accused to due process. %he Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the consent of the accused and notice to the offended parties. %he time<bar fi+ed by the Court must be respected unless it is shown that the period is manifestly short or insufficient that the rule becomes a denial of )ustice. * i"id.) Q. (hat do you mean by e+press consent to a provisional dismissal' s the inaction or silence of the accused equivalent to e+press consent' C+press consent to a provisional dismissal is given either viva voce or in writing. t is a positive, direct, unequivocal consent requiring no inference or implication to supply its meaning. (here the accused writes on the motion of a prosecutor for a provisional dismissal of the case Ao &b)ection or (ith 9y Conformity, the writing amounts to e+press consent of the accused to a provisional dismissal of the case. %he mere inaction or silence of the accused to a motion for a provisional dismissal of the case or his failure to ob)ect to a provisional dismissal does not amount to e+press consent. * >"id.) Q. (hat is the effect of a plea for forgiveness made by the accused to the victim andOor her family' # plea for forgiveness may be considered as analogous to an attempt to compromise. n criminal cases, e+cept those involving quasi<offense ,criminal negligence. or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. Ao one would as3 for forgiveness unless he had committed some wrong, for to forgive means to absolve, to pardon, to cease to feel

resentment against on account of wrong committed! give up claim to requital from or retribution upon ,an offender.. F(eople vs. Ale: )analo, 0R? 14 ',4, )arc- !&, !,, ) Q. n resolving a motion for bail, what does a trial court mandated to do' %he trial court is mandated, in resolving a motion or petition for bail, to do the following: n all cases, whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation ,Section -;, $ule --= of the $ules of Court, as amended.! 8.. (here bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to e+ercise its sound discretion! ,Sections : and ;, supra. 7.. Fecide whether the guilt of the accused is strong based on the summary of evidence of the prosecution! :.. f the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond ,Section -6, supra.. &therwise, the petition should be denied. * >"id. ) =.. Q. (hat rights are involved in an application for bail' # bail application does not only involve the right of the accused to temporary liberty, but li3ewise the right of the State to protect the people and the peace of the community from dangerous elements. %hese two rights must be balanced by a magistrate in the scale of )ustice, hence, the necessity for hearing to guide his e+ercise of )urisdiction. * >"id. ) Q. Fistinguish a permanent dismissal from a provisional dismissal of the case. # permanent dismissal of a criminal case may refer to the termination of the case on the merits, resulting in either the conviction or acquittal of the accused! to the dismissal of the case due to the prosecutionLs failure to prosecute! or to the dismissal thereof on the ground of unreasonable delay in the proceedings, in violation of the accusedLs right to speedy disposition or trial of the case against him. n contrast, a provisional dismissal of a criminal case is a dismissal without pre)udice to the reinstatement thereof before the order of dismissal becomes final or to the subsequent filing of a new information for the offense within the periods allowed under the $evised Penal Code or the $evised $ules of Court. * Condrada vs. (eople, 0R? 141646, Ae"ruar% !&, !,, ) Q. (hat are the e+ceptions to the rule that double )eopardy will not attach if the first case was dismissed with the consent of the accused' %here are two e+ceptions to the foregoing rule, and double )eopardy may attach even if the dismissal of the case was with the consent of the accused: first, when there is insufficiency of evidence to support the charge against him! and second, where there has been an unreasonable delay in the proceedings, in violation of the accusedLs right to speedy trial. * >"id.) E-!DENCE Q. s the testimony of a single prosecution witness sufficient to prove the guilt of the accused' $E%. %he testimony of an eyewitness, coupled with the fact of the victimLs death are sufficient proof of the guilt of the appellants beyond cavil of doubt for murder. T-e Court -as consistentl% ruled t-at t-e testi1on% of a single prosecution 6itness, as long as it is positive, clear and credi"le is sufficient on 6-ic- to anc-or a 9udg1ent of conviction. Corro"orative or cu1ulative evidence is not a prere7uisite to t-e conviction of t-e accused. %ruth is established not by the number of witnesses but by the quality of their testimonies. %he bare denial by the appellants of the criminal charge is a self<serving negative evidence which cannot prevail over the clear, positive and categorical testimony of the eyewitness pinpointing the appellants as the culprits. , 'eople v&* Si+onga GR4$5$6#, )une #7, 8669. Q. s an alibi sufficient to prove the innocence of the accused' NO. #libi is one of the wea3est if not the wea3est of defenses in criminal prosecution as it is easy to fabricate and hard to disprove. Bor alibi to be believed, the following requisites must concur: ,a. the presence of

accused at another place at the time of the perpetration of the offense! and ,b. the physical impossibility for him to be at the scene of the crime. 9ore importantly, alibi cannot be given credence in light of the unwavering and positive identification by the private complainant of accused<appellant as her defiler and the father of her child. n cases in where the offender is positively identified by the victim herself who harbored no ill motive against him, the defense of alibi is invariably re)ected. ,(eople vs. (agsan9an 0RH1 9694, Dece1"er !',!,,!) Q. n the Law on Cvidence, is self<defense considered as a strong argument' NO. ike ali/i# sel:,de:ense is a weak de:ense /e<ause it is easy to :a/ri<ate. );en t;e a<<used inter1oses sel:,de:ense# ;e t;ere/y ad3its ;avin0 killed t;e vi<ti3. %he burden of proof is shifted on him to prove with clear and convincing evidence the confluence of the essential requisites of a complete self<defense, namely: ,a. unlawful aggression on the part of the victim! ,b. reasonable necessity of the means employed to prevent or repel it! and ,c. lac3 of sufficient provocation on the part of the person defending himself. F Rugas vs. (eople, 0R? 14''&9, /anuar% 14,!,,4 8

Q. (ill the testimony of young rape victims be given full credence by our courts of )ustice' $E%. )e ;ave <onsistently ruled t;at w;ere# t;e ra1e vi<ti3s are youn0 and o: tender a0e# t;eir testi3onies deserve :ull <reden<e and s;ould not /e so easily dis3issed as a 3ere :a/ri<ation# es1e<ially w;ere t;ey ;ave a/solutely no ill,3otive to testi:y a0ainst t;e a<<used. t is doctrinally settled that the factual findings of the trial court which are supported by evidence, especially on the credibility of the rape victim, are accorded great weight and respect and will not be disturbed on appeal. *(eople vs. Li1os. Q. Fo inconsistencies in the testimony impair the credibility of the witness' NO.%he victim died because of multiple wounds and the appellant is charged with murder for the 3illing of the victim, in conspiracy with the other accused. n this case,the identity of the person who hit the victim with a hollow bloc3 is of de minimis importance and the perceived inconsistency in the account of events is a minor and collateral detail that does not affect the substance of her testimony. %he witness has been consistent in her testimony that the appellant was one of the men who stabbed the victim and such corroborated by the autopsy report.,(eople vs. (ilola 0RH1!1&!&, /une !', !,, ) Q. @ive the rationale why the trial courts are in the best position to weigh the testimony of a witness. T;e wei0;in0 o: t;e testi3onies o: witnesses is /est le:t to t;e trial <ourt sin<e it is in t;e /est 1osition to dis<;ar0e t;at :un<tion. %he trial )udge has the advantage of personally observing the conduct and demeanor of witnesses, an opportunity not available to an appellate court . #bsent compelling reasons, we will not disturb on appeal the trial court"s findings on the credibility of a witness. /(eople vs. ?uguid. Q. (hat is the quantum of proof in administrative proceedings' n administrative proceedings, the quantum of proof necessary for a finding of guilt is su/stantial eviden<e or such relevant evidence as a reasonable mind may accept as adequate to support a conclusion. Burther, the complainants have the burden of proving, by substantial evidence, the allegations in their complaints. /="ero vs. )a.ati Cit% S-eriffs) Q. s it proper for the appellate court to disturb the finding of the court as to the credibility of witnesses' NO. (hen the issue is one of credibility of witnesses, an appellate court will normally not disturb the factual findings of the trial unless the lower court has reached conclusions that are clearly unsupported by evidence, or unless it has overloo3ed some facts or circumstances of weight and influence which, if considered, would affect the result of the case. %he rationale for this rule is that trial courts have superior advantages in ascertaining the truth and in detecting falsehood as they have the opportunity to observe at close range the manner and demeanor of witnesses while testifying. , (eople vs. Dalag, 0.R. ?o. 1!9&9#. April ,, !,, .

Q. #ccused herein was convicted of $ape with Eomicide and #ttempted 9urder. Ee now asserts that his conviction should not be sustained in the absence of direct evidence to prove his guilt beyond reasonable doubt. s his contention tenable' NO. (e agree with the appellant that the prosecution failed to adduce direct evidence to prove that he raped and 3illed 9arilyn on the occasion or by reason of the said crime. Eowever, direct evidence is not indispensable to prove the guilt of the accused for the crime charged! it may be proved by circumstantial evidence. n People v. Felim, we held, thus: . . . Circumstantial evidence consists of proof of collateral facts and circumstances from which the e+istence of the main fact may be inferred according to reason and common e+perience. (hat was once a rule of ancient practicability is now entombed in Section =, $ule -22 of the $evised $ules of Cvidence which states that circumstantial evidence, sometimes referred to as indirect or presumptive evidence, is sufficient as anchor for a )udgment of conviction if the following requisites concur: K. . . if ,a. there is more than one circumstance! ,b. the facts from which the inferences are derived have been established! and ,c. the combination of all the circumstances is such as to warrant a finding of guilt beyond reasonable doubt.K %he prosecution is burdened to prove the essential events which constitute a compact mass of circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all without e+ception leading by mutual support to but one conclusion: the guilt of the accused for the offense charged. (e are convinced that, based on the evidence on record and as declared by the trial court in its decision, the prosecution adduced circumstantial evidence to prove beyond cavil that it was the appellant who raped and 3illed 9arilyn on the occasion or by reason of the rape. Eence, he is guilty beyond reasonable doubt of rape with homicide, a special comple+ crime. , (eople vs. Darila%, 0R? 1 9'#1;#!, /anuar% !6, !,,4 . Q. s medical evidence a condition sine qua non in all se+ual crimes to prove that the victim is a mental retardate' NO. Clinical evidence is necessary in borderline cases when it is difficult to ascertain whether the victim is of a normal mind or is suffering from a mild mental retardation. 9edical evidence is not a condition sine qua non in all cases of rape or se+ual crimes for that matter to prove that the victim is a mental retardate or is suffering from mental deficiency or some form of mental disorder. Eowever, the conviction of an accused of rape based on the mental retardation of private complainant must be anchored on proof beyond reasonable doubt of her mental retardation. ,(eople of t-e (-ils. vs.Dalandas, 0R? 14,!,9, Dece1"er !', !,,!. Q. s it necessary that a witness" sworn statement or affidavit be consistent with his testimony in open court' NO. Case law has it that: # Sinumpaang Salaysay or a sworn statement is merely a short narrative subscribed to by the complainant in question and answer form. %hus, it is only to be e+pected that it is not as e+haustive as oneLs testimony in open court. %he contradictions, if any, may be e+plained by the fact that an affidavit can not possibly disclose the details in their entirety, and may inaccurately describe, without deponent detecting it, some of the occurrences narrated. /eing ta3en e+ parte, an affidavit is almost always incomplete and often inaccurate, sometimes from partial suggestions, and sometimes from the want of suggestions and inquiries. t has thus been held that affidavits are generally subordinated in importance to open court declarations because the former are often e+ecuted when an affiantLs mental faculties are not in such a state as to afford a fair opportunity of narrating in full the incident which has transpired. Burther, affidavits are not complete reproductions of what the declarant has in mind because they are generally prepared by the administering officer and the affiant simply signs them after the same have been read to her. F(eople of t-e (-ils. vs.0arcia, 0R? 14##,#, )arc- 14, !,, 8 Q. Can the accused rely on the wea3ness of the evidence of the prosecution' %he accused must rely on the strength of his own evidence and not on the wea3ness of the evidence of the prosecution! because even if the prosecutionLs evidence is wea3, the same can no longer be disbelieved. F (eople vs. Ca9urao, 0.R. ?o. 1!!'6'. /anuar% !,, !,,4 8 Q. (ho has the burden of proving the guilt of the accused beyond reasonable doubt'

n all criminal prosecutions, the accused shall be presumed to be innocent until the charge is proved. %he prosecution is burdened to prove the guilt of the accused beyond reasonable doubt. %he prosecution must rely on its strength and not on the absence or wea3ness of the evidence of the accused. F (eople vs. )alate, et al., 0.R. ?o. 1!& !1. )arc- 11, !,,4 8 M. (hat is meant by reasonable doubt' /y reasonable doubt is not meant that which of possibility may arise but it is that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. * i"id.) M. n criminal cases, if an evidence is susceptible to two interpretations how should the court appreciate the same' f the evidence is susceptible of two interpretations, one consistent with the innocence of the accused and the other consistent with his guilt, the accused must be acquitted. %he overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt. *>"id) Q. Can a testimomny prevail over physical evidence' # testimony cannot prevail over physical evidence. #fter all, physical evidence is evidence of the highest order. t spea3s more eloquently than a hundred witnesses. *>"id.) Q. (hat is the e+tent of the discretion of the public prosecutor in presenting the witnesses' %he public prosecutor has the discretion as to the witnesses he will present as well as the course of presenting the case for the prosecution. %he prosecution is not burdened to present all eyewitnesses of the crime on the witness stand during the trial. %he testimony of only one eyewitness may suffice so long as it is credible and trustworthy. F (eople vs. Fada9os, 0.R. ?o. 1 969!. /anuar% 1#, !,,4) Q. #ccused 9anny Fomingcil was found @U L%H under Sec. = of #rt. , $# Ao. 7=18, as amended, otherwise 3nown as the Fangerous Frugs #ct of -6:1 and was sentenced to reclusion perpetua. &n appeal, he contends that contrary to the collective testimonies of the prosecution witnesses, he was instigated to buy mari)uana and the trial court erred in not giving credence and probative weight to his testimony and in considering the testimonies of the witnesses of the prosecution. s the appeal of the accused meritorious' NO. (hat is material to the prosecution for illegal sale of dangerous drugs is the proof that the sale actually too3 place, coupled with the presentation in court of the corpus delicti as evidence. n this case, the prosecution adduced proof beyond reasonable doubt that the appellant sold one ,-. 3ilo of mari)uana to poseur< buyer SP&- &rlando Falusong in the entrapment operation. %he testimonies of the principal prosecution witnesses complement each other, giving a complete picture of how the appellantLs illegal sale of the prohibited drug transpired, and how the sale led to his apprehension in flagrante delicto. %heir testimonies establish beyond doubt that dangerous drugs were in the possession of the appellant who had no authority to possess or sell the same. 9ore importantly, all the persons who obtained and received the confiscated stuff did so in the performance of their official duties. Unless there is clear and convincing evidence that the members of the buy< bust team were inspired by any improper motive or were not properly performing their duty, their testimonies on the buy<bust operation deserve full faith and credit. Did the trial court err in not appreciating the defen&e of denial of the accu&ed and that he :a& (erely in&tigated to co((it the cri(e; NO. %he appellantLs bare denial of the crime charged and his barefaced claim that he was merely instigated by &liver into procuring the mari)uana cannot prevail over the straightforward and positive testimonies of the prosecution witnesses. t is a+iomatic that for testimonial evidence to be believed, it must not only proceed from the mouth of a credible witness but must also be credible in itself such that common e+perience and observation of man3ind

lead to the inference of its probability under the circumstances. n criminal prosecution, the court is always guided by evidence that is tangible, verifiable and in harmony with the usual course of human e+perience and not by mere con)ecture or speculation. %estimonies that do not adhere to this standard are necessarily accorded little weight or credence. /esides, instigation, or the appellantLs claim of a frame<up, is a defense that has been invariably viewed by this Court with disfavor because the same can easily be concocted and is a common standard defense ploy in most prosecutions for violations of the Fangerous Frugs #ct. !& the pre&entation +y the pro&ecution to pre&ent the police infor(ant a& :itne&& indi&pen&a+le ' NO.%he failure of the prosecution to present &liver, the police informant, does not enfeeble the case for the prosecution. nformants are almost always never presented in court because of the need to preserve their invaluable service to the police. %heir testimony or identity may be dispensed with inasmuch as his or her narration would be merely corroborative, especially so in this case, when the poseur<buyer himself testified on the sale of the illegal drug. , (eople vs. Do1ingcil, 0R? 14,6'9, /anuar% 14,!,,4. Q. Eow should the court treat inconsistencies in a witness" testimony' t is hornboo3 doctrine that a witnessL testimony must be considered in its entirety and not by truncated portions or isolated passages thereof. n People v. &rtega, we held that it is sound policy that self< contradictions in testimonies should be reconciled, if possible! contradictory statements should be considered in light of e+planations and attending circumstances and whether inconsistencies result from misconceptions of an innocent witness or are a result of mere willful and corrupt misrepresentation. %his Court has held that even the most candid of witnesses commit mista3es and may even ma3e confused and inconsistent statements., (eople vs. +ong Aung +uen 0R? 14#,14;1#, Ae"ruar% 1&,!,,4 8 Q. s the testimony of the victim"s mother in a $ape case as to the age of her daughter sufficient to establish the aggravating circumstance of minority so as to impose the penalty of death upon the accused' NO. n the present case, no birth certificate or any similar authentic document was presented and offered in evidence to prove $achelLs age. %he only evidence of the victimLs age is her testimony and that of her motherLs ,Sally de @u*manLs. Sinumpaang Salaysay, which was adopted as part of the latterLs direct testimony, attesting to the fact that her five<year<old daughter was raped. SallyLs testimony regarding $achelLs age was insufficient, since $achel was alleged to be already five years old at the time of the rape, and what is sought to be proved is that she was then less than seven years old. Eer testimony will suffice only if it is e+pressly and clearly admitted by the accused. %here is no such e+press and clear declaration and admission of the appellant that $achel was less than seven years old when he raped her. 9oreover, the trial court made no finding as to the victimLs age. Eowever, SallyLs testimony that her daughter was five years old at the time of the commission of the crime is sufficient for purposes of holding the appellant liable for statutory rape, or the rape of a girl below twelve years of age. Under the second paragraph of #rticle 177</, in relation to #rticle 177<#,-.,d. of the $PC, carnal 3nowledge of a woman under twelve years of age is punishable by reclusion perpetua. %hus, the appellant should be sentenced to suffer reclusion perpetua, and not the death penalty. , (eople vs. Antivola, 0R? 1 9! 6, Ae"ruar% , !,,4 . Q. n an ordinary civil case, to whom does the burden of proof belong' &bviously, the burden of proof is, in the first instance, with the plaintiff who initiated the action. /ut in the final analysis, the party upon whom the ultimate burden lies is to be determined by the pleadings, not by who is the plaintiff or the defendant. %he test for determining where the burden of proof lies is to as3 which party to an action or suit will fail if he offers no evidence competent to show the facts averred as the basis for the relief he see3s to obtain, and based on the result of an inquiry, which party would be successful if he offers no evidence. n ordinary civil cases, the plaintiff has the burden of proving the material allegations of the complaint which are denied by the defendant, and the defendant has the burden of proving the material allegations in his case where he sets up a new matter. #ll facts in issue and relevant facts must, as a general rule, be proven by evidence e+cept the following: -.. #llegations contained in the complaint or answer immaterial to the issues. 1.. Bacts which are admitted or which are not denied in the answer, provided they have been sufficiently alleged.

%hose which are the sub)ect of an agreed statement of facts between the parties! as well as those admitted by the party in the course of the proceedings in the same case. =.. Bacts which are the sub)ect of )udicial notice. 8.. Bacts which are legally presumed. 7.. Bacts peculiarly within the 3nowledge of the opposite party. F Repu"lic vs. ?eri, 0R? 1 9#&&, )arc- 4,!,,4 8 Q. (hat is the effect of a presumption upon the burden of proof' %he effect of a presumption upon the burden of proof is to create the need of presenting evidence to overcome the prima facie case created thereby which if no proof to the contrary is offered will prevail! it does not shift the burden of proof. * i"id ) Q. s direct evidence indispensable to prove the guilt of an accused' NO. Firect evidence is not always indispensable to prove the guilt of an accused. %he prosecution may prove the guilt of the accused for the crimes charged either by direct evidence or circumstantial evidence. Bor circumstantial evidence to warrant the conviction of an accused under $ule -22, Sec. = of the $evised $ules of Cvidence, the prosecution is burdened to prove the confluence of the following: a. %here is more than one circumstance! b. %he facts from which the inferences are derived are proven! and c. %he combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt. Bacts and circumstances consistent with guilt and inconsistent with innocence, constitute evidence which in weight and probative force, may surpass even direct evidence in its effect upon the court. Unless required by law, the testimony of a single witness, if found credible and positive, is sufficient on which to anchor a )udgment of conviction. #fter all, the truth is established not by the number of witnesses but by the quality of their testimonies. %he witness may not have actually seen the very act of the commission of the crime charged, but he may nevertheless identify the accused as the assailant as the latter was the last person seen with the victims immediately before and right after the commission of the crime. ,(eople vs. Rafael Calo2a /r.,0.R. ?o. 1 &4,4, /anuar% !&,!,, ) Q. Eow can a witness be impeached by evidence of inconsistent statement' t is done by Ilaying a predicateJ. /efore a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him with the circumstances of the times and places and the persons present, and he must be as3ed whether he made such statements, and if so, allowed to e+plain them. f the statement is in writing they must be shown to the witness before any question is put to him concerning them. %he cross<e+aminer must lay the predicate or the foundation for impeachment and thereby prevent an in)ustice to the witness being cross<e+amined. %he witness must be given a chance to recollect and to e+plain the apparent inconsistency between his two statements and state the circumstances under which they were made. %his Court outlined the procedure in United States vs. /aluyot, for instance, if the attorney for the accused had information that a certain witness say Pedro @on*ales had made and signed a sworn statement before the fiscal materially different from that given in his testimony before the court, it was incumbent upon the attorney when cross<e+amining said witness to direct his attention to the discrepancy and to as3 him if he did not ma3e such and such statement before the fiscal or if he did not there ma3e a statement different from that delivered in court. f the witness admits the ma3ing of such contradictory statement, the accused has the benefit of the admission, while the witness has the opportunity to e+plain the discrepancy if he can. &n the other hand, if the witness denies the ma3ing any such contradictory statement, the accused has the right to prove that the witness did ma3e such statement! and if the fiscal should refuse upon due notice to produce the document, secondary evidence of the contents thereof would be admissible. %his process of cross<e+amining a witness upon the point of prior contradictory statements is called in the practice of the #merican courts Ilaying a predicateJ for the introduction of contradictory statements. t is almost universally accepted that unless a ground is thus laid upon cross<e+amination, evidence of contradictory statements are not admissible to impeach a witness, though undoubtedly the matter is to a large e+tent in the discretion of the court. , (eople vs. Castillano et. al, .0.R. ?o. 1 941!, April !, !,, ) Q. (hat is the nature of a sweetheart defense' (hen will it be given credence by the court'

2..

/eing an affirmative defense, the allegation of a love affair must be supported by convincing proof. # sweetheart defense cannot be given credence in the absence of corroborative proof li3e love notes, mementos, pictures or to3ens that such romantic relationship really e+isted. , (eople vs. Ale: )analo, 0R? 14 ',4, )arc- !&, !,, ) Q. (ould a love affair between the rape victim and the accused preclude the prosecution of rape' %his fact would not preclude rape as it does not necessarily mean there was consent. # love affair would not have )ustified carnal desires against her will. Fefinitely, a man cannot demand se+ual gratification from a fiancee and, worse, employ violence upon her on the prete+t of love. Love is not a license for lust. * >"id) Q. s the moral character of a rape victim material in the prosecution of rape' Cven assuming arguendo that the offended party was a girl of loose morals, it is settled that moral character is immaterial in the prosecution and conviction for rape for even prostitutes can be rape victims. , >"id . Q. 9ay a child witness testify in a narrative form' Parenthetically, under Sections -6 to 1- of the $ule on C+amination of a Child (itness which too3 effect on Fecember -8, 1>>>, child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the e+amination if the same will further the interest of )ustice. &b)ections to questions should be couched in a manner so as not to mislead, confuse, frighten and intimidate the child: Sec. -6. 9ode of questioning. M %he court shall e+ercise control over the questioning of children so as to ,-. facilitate the ascertainment of the truth, ,1. ensure that questions are stated in a form appropriate to the developmental level of the child, ,2. protect children from harassment or undue embarrassment, and ,=. avoid waste of time. * (eople vs. Canete, 0R? 14!9 ,, )arc- !&, !,, ) BAR T$PE Q&E%T!ON% Q&E%T!ON 1K Shirley was charged of violation of /P 11. #fter Shirley pleaded I Aot @uiltyJ to the charge, the Prosecutor filed a motion with the Court praying for leave to amend the nformation to change the amount of the chec3 from P 1>,>>> to P 1>>,>>>. Shirley opposed the motion on the ground that the amendment of the nformation is substantial and will pre)udice her. %he Court granted the motion of the Prosecution and allowed the amendment. -.. s the order of the Court correct' C+plain. 1.. (ould your answer be the same if, instead of praying for leave to amend the nformation, the Prosecutor prayed for leave to withdraw the nformation and to substitute the same with another nformation containing the amount of P1>>,>>> and the court granted the motion of the Prosecution' C+plain. %&""E%TED AN%)ER%K -.. $E%. Sec. -= of $ule --> pertinently provides that after the plea and during trial, a formal amendment may only be made with leave of court and when it can be done without causing pre)udice to the rights of the accused. %he change of the amount of the chec3 in this case is only a matter of form and not of substance. # substantial amendment consists of the recital of facts constituting the offense charged and determinative of the )urisdiction of the court. #ll other matter are merely of form. #n amendment which merely states with additional precision something which is already contained in the original information and which, therefore, adds nothing essential for conviction of the crime charged is a formal amendment as in the instant case. 1.. NO. Substitution is not proper in this case because the new information would refer to the same offense charged in the original information , i.e. Diolation of /.P. 11. and that would result to double )eopardy. Q&E%T!ON 5K ?uana issued and delivered on Bebruary -8, -668 in ba, Tambales, to Perla, her townmate, two ,1. chec3s, one of which was for P7>,>>>, postdated 9ay -, -668, and the other for P->>,>>> postdated ?une -, -668 against her account with 9etroban3 in Limay, /ataan in payment of )ewelries ?uana purchased from Perla. Perla deposited the chec3s, on due date, in her account with the #sia /an3, in 9anila. (hen the chec3s were dishonored for insufficiency of funds, Perla signed and filed, without prior conciliation proceedings before the /arangay officials, one ,-. verified criminal

complaint for violation of /P 11 with the 9anila 9%C against ?uana. %he court issued an order dismissing the case, motu propio, the criminal complaint. -.. s the order of dismissal correct' C+plain. 1.. f the court issued an order quashing the criminal complaint would such order be correct' C+plain. %&""E%TED AN%)ER%K -.. NO. Diolation of P/ 11 is now covered by the $ules on Summary Procedure. #s such, the court is mandated to issue an order declaring whether or not the case shall be governed by the $ules on Summary Procedure. Ee cannot outrightly dismiss the case without ma3ing such determination. 1.. t depends on what ground the motion to quash is based. # motion to quash is a prohibited pleading under the rule of summary procedure. Eowever, under Sec. -6 ,a. of the rule the said prohibition does not apply when the motion is based on lac3 of )urisdiction over the case or failure of the complainant to refer the case to barangay conciliation. Q&E%T!ON 6K Pedro and ?uan were charged of Cstafa under #rticle 2-8 of the $evised Penal Code, under an nformation, based on the complaint of ?essica. #fter the prosecution rested its case, ?uan, without prior leave of court, filed a I Femurrer to Cvidence.J Fespite the opposition of the Prosecutor, the Court issued an order granting the demurrer on the ground that there was insufficient evidence of estafa committed by Pedro and ?uan and dismissed the case against both of them but ordered ?essica to file a separate civil complaint for the civil liability of both accused. -.. s the order of the court dismissing the case against both Pedro and ?uan correct' C+plain. 1.. s the order of the court ordering ?essica to file a separate civil complaint against them in their civil liability correct' C+plain. 2.. Foes the order of the court amount to an acquittal of both Pedro and ?uan' C+plain. %&""E%TED AN%)ERK -.. $E%. #fter the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence upon demurrer to evidence filed by the accused with or without leave of court. Eowever, when the demurrer to evidence is filed without leave of court, the accused waives his right to present evidence and submits the case for )udgment on the basis of the evidence for the prosecution. , Sec. ! , Rule 119 ) 1.. $E%. (ell settled is the rule in criminal procedure that e+tinction of the penal action does not carry with it the e+tinction of the civil action, unless the e+tinction proceed from a declaration in a final )udgment that the fact from which the civil liability might arise did not e+ist. Eence, the court may order for the filing of a separate civil complaint for the civil liability of both accused. 2.. $E%. f the demurrer to evidence is sustained, such dismissal being on the merits is equivalent to an acquittal. , (eople vs. Cit% Court of Sila%, et. al. L;4 '9,, Dec. 9, 19'6 . Q&E%T!ON ?K ?uan, Pedro and Dictor were charged of $ape with the $%C on complaint of ?essica. #ll of the #ccused filed a petition for /ail. %he Prosecutor did not oppose the petition. Aevertheless, the court set the hearing of said petition during which the Prosecutor presented three ,2. witnesses, including ?essica and rested its case on said Petition. ?uan, Pedro and Dictor testified in support of their Petition. %he court issued an order denying the Petition, in this language: I&rder Bor lac3 of merit, the Petition for /ail is hereby denied.J %he prosecutor then filed a motion with the court for the discharge of Pedro as a state witness. ?uan and Dictor opposed the motion on the grounds that ,a. the prosecution has already rested its case! ,b. the denial by the court of the Petition for /ail of the accused precluded the prosecution from praying for the discharge of one of the accused as a state witness. -.. (as it proper for the Court to set the Petition for /ail for hearing and receive evidence even if the prosecutor did not oppose the petition' C+plain. 1.. s the order of the court denying bail to the accused proper' C+plain. 2.. s the petition of the prosecution to discharge Pedro as a state witness proper and meritorious' C+plain. =.. f the court denied the petition of the prosecution for the discharge of Pedro, may Pedro testify for the prosecution' C+plain. 8.. s it proper for the court to consider only the evidence presented during the Petition for /ail in resolving the petition for the discharge of Pedro as a state witness' C+plain. %&""E%TED AN%)ER%K

-.. 1..

2..

=.. 8..

$E%. Since $ape is a capital offense being punishable by death, bail is not a matter of right. %he court will still have to determine whether the evidence of guilt is strong for purposes of granting the petition for /ail. n view thereof, a hearing is necessary even if the prosecution did not oppose the petition. NO. %he &rder of the court denying or granting a petition for bail should spell out at least a resume of the evidence on which its order is based. n once case it was held that an order of the court merely stating the number of witnesses and the court"s conclusion that the evidence of guilt was not Isufficiently strongJ such order is defective in for m and substance and consequently voidable. , Carpio, et.al. vs. )aglalang, etc. 0.R. ?o. '&16!, April 19, 1991 ). NO. Under $ule --6, Sec. -:, when two or more persons are )ointly charged with the commission of any offense, upon motion of the prosecution, before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the State. %hus, where the motion is made after the prosecution rests its case, such motion is not proper and meritorious. NO. %o order Pedro to testify for the prosecution despite denial of the prosecution"s motion for his discharge as state witness would violate his right against self<incrimination. NO. n a petition for bail, the court receives evidence to determine whether the evidence of guilt of the accused is strong. &n the other hand, in a petition for the discharge of an accused to be a state witness, the prosecution presents evidence to prove that: ,a. %here is absolute necessity for the testimony of the accused whose discharge is required! ,b. %here is no other direct evidence available for the proper prosecution of the offense committed e+cept the testimony of said accused! ,c. %he testimony of said accused can be substantially corroborated in its material points! ,d. Said accused does not appear to be the most guilty! and ,e. Said accused has not at any time been convicted of any offense involving moral turpiture.

Q&E%T!ON CK Peter was charged with the $%C of the crime of murder. #t arraignment, he pleaded I Aot @uiltyJ to the charge. #fter the prosecution rested its case, Peter filed, without prior leave of court, a I Femurrer to Cvidence.J %he prosecution opposed the motion. %he court then promulgated a decision declaring that Peter committed only IEomicideJ convicting him of said crime. -.. #ssuming that the Prosecution proved only Eomicide, was it proper for the Court to render a Fecision on the basis of said demurrer convicting Peter for said crime' C+plain. 1.. (ould it be proper for the Prosecutor to file a motion for the reconsideration of the Fecision of the Court without placing Peter in double )eopardy' C+plain. %&""E%TED AN%)ER%K -.. $E%. (hen the demurrer to evidence is filed without leave of court, the accused waives his right to present evidence and submits the case for )udgment on the basis of the evidence for the prosecution. Eence, where the evidence presented by the prosecution proves Eomicide, the court may render a decision convicting the accused of Eomicide. 1.. NO. Section - of $ule -1- does not provide for a motion for new trial or reconsideration by the prosecution as the reopening of the case and introduction of additional evidence by the prosecution, without the consent of the accused, would result in double )eopardy. Q&E%T!ON 7K $ene drove his car with gross negligence resulting in his car colliding with the car of /ert. /ecause of the impact, the car of /ert bumped the car owned by Lando. #s a result of said accident, the cars of /ert and Lando wee damaged at the cost of P ->>,>>> each. /ert died while $osa, his wife who was also in the car, sustained serious physical in)uries. #fter Preliminary investigation, the prosecutor filed two ,1. separate nformation, namely an nformation for I $ec3less mprudence resulting in Eomicide, Famage to Property , referring to the car of /ert . and Serious Physical n)uriesJ and another nformation for I$ec3less mprudence resulting in Famage to Property for the damage to the car of Lando. -.. (as it proper for the prosecutor to file two ,1. separate informations' C+plain. 1.. (ould it be proper for the prosecutor to file only one ,-. information based on said accident' C+plain. 2.. f two ,1. separate nformation were filed by the prosecutor, may the trial of the 1 cases be consolidated in one court' C+plain. %&""E%TED AN%)ERK -.. $E%. Sec. -2 of $ule --> states that a complaint or information must charge only one offense, e+cept when the law prescribes a single punishment for various offenses. n this case, the two felonies allegedly committed by the accused must be contained in two separate informations because they have different ob)ects.

1.. 2..

NO. %he felonies involved do not constitute as an e+ception to the rule proscribing duplicity of offense. %he two offenses do not fall under the comple+ crime under the $PC where a single penalty is imposed and the special comple+ crimes or composite crimes penali*ed therein. $E%, this is authori*ed by Sec. 11 of $ule --6 which provides that charges for offenses founded on the same facts or forming part of a series of offenses of similar character may be tried )ointly at the discretion of the court.

Q&E%T!ON 4 #fter 9ario pleaded I Aot @uiltyJ to the charge of $ape, 9ario proceeded to the house of Perla and threatened to 3ill her unless she agreed to marry him. #fraid, Perla married 9ario. mmediately thereafter, Perla filed a complaint with the $%C for the declaration of the nullity of her marriage to 9ario. Furing pre<trial in the criminal case, 9ario filed a motion to quash the nformation on the grounds of e+tinction of the crime of $ape and of his criminal liability for said crime. 9ario attached to his motion a certified true copy of his marriage contract with Perla. %he prosecutor opposed the 9otion of 9ario claiming that such a motion cannot be filed after arraignment. %he prosecutor moved that the criminal case be suspended until after the termination of the civil case for nullity of the marriage. 9ario opposed the motion of the prosecutor and moved that the civil case should be suspended instead. $esolve the respective claimsOmotions of the Prosecutor and 9ario. %&""E%TED AN%)ERK #s a general rule, a motion to quash must be filed before the arraignment, otherwise, they are deemed waived. %his rule however admits of several e+ceptions. &ne of which is when the ground invo3ed is that the criminal action or liability has been e+tinguished. n case of $ape, marriage of the offended woman and the accused e+tinguishes criminal liability. Eence, the motion to quash filed by 9ario can still be entertained by the court even after his arraignment. %he motion of the Prosecutor to suspend the criminal case is proper. %he decision in the civil case for declaration of nullity of marriage is pre)udicial to the outcome of the criminal case. #lthough one of the elements of a pre)udicial question is that is must have been previously instituted than the criminal case, the same should not be strictly applied in the case at bar. %he resolution in the case for declaration of the nullity of marriage between the herein accused and the offended party is determinative of whether the case for rape will prosper. f the marriage is declared void, the criminal liability of 9ario would not be distinguished and will result to the denial of his motion to quash. Q&E%T!ON DK Pedro was charged of the comple+ crime of I9urderJ and IBrustrated 9urderJ under #rt. 1=; in relation with #rticles 7 and =; of the $PC, punishable with death penalty. t was alleged in the nformation that Pedro shot ?uan and $odolfo with his licensed gun 3illing ?uan and inflicting serious physical in)uries on $odolfo who managed to survive despite his wounds. Upon arraignment, Pedro offered to plead guilty to the Ilesser offense of I9urder.J -.. 9ay the court grant Pedro"s offer if the Public Prosecutor and the heirs of ?uan agree but $odolfo does not' C+plain. 1.. f $odolfo, the heirs of ?uan, the Public Prosecutor and the Court agree to the offer of Pedro, is the Court mandated to conduct searching inquiry into the voluntariness and full comprehension of Pedro"s plea' C+plain. %&""E%TED AN%)ER%K -.. NO. Bor a plea of guilty to a lesser offense, the consent of the prosecutor, as well as of the offended party, and the approval of the court must be obtained. (here these requirements were not observed, the accused cannot claim double )eopardy if he should be charged anew with the graver offense sub)ect of the original information or complaint. , Sec. 1, $ule --7 . 1.. $E%. %he rules provide that when the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability . , Sec. 2, $ule --7 . Q&E%T!ON @K #ppended to the nformation for $ape against (illiam were the #ffidavits of Perla, the private complainant, the 9edico<Legal $eport on Perla, and the Police $eport on the Police investigation of Perla"s comlaint. 9ay the trial court rely solely on the allegations of the information and the appendages thereof for the purpose of ascertaining probable cause for the issuance of a warrant of arrest against (illiam' C+plain. %&""E%TED AN%)ERK NO. %he case involved in the present case requires a preliminary investigation. #s such, the )udge conducting the preliminary investigation cannot outrightly issue a warrant of arrest solely on the basis of the information and

supporting affidavits of the prosecution. %he respondent shall have the right to e+amine the evidence submitted by the complainant which he may not have been furnished and to copy them at his e+pense. Ee shall thereafter submit his counter<affidavit and that of his witnesses and other supporting documents relied upon for his defense. %he warrant of arrest may only issue if the trial )udge is satisfied that a probable cause e+ists and that in his sound )udgment there is necessity of placing the respondent under immediate custody in order not to frustrate the ends of )ustice. Q&E%T!ON 1BK #lthough #le+ committed the special comple+ crime of I$oberry with EomicideJ under #rt. 16= par. - of the $PC, the Public Prosecutor filed two , 1 .separate nformations against #le+ for I$obberyJ and IEomicide.J %he court ordered a )oint trial of the 1 cases. 9ay #le+ file, before arraignment, a I9otion to SuashJ the nformation for IEomicideJ on the ground of double )eopardy' C+plain. %&""E%TED AN%)ERK NO. #s a general rule the $ules prohibit a duplicitous information and declares the same to be quashable including a situation where a comple+ crime which should properly be charged in a single information is made the sub)ect of several informations by charging each component crime thereof separately. Eowever, in People vs. 9ilflores , L<21-==<=8, ?uly 2>, -;;1 ., where the accused was charged with multiple murder in one information and murder in another, although said offenses constituted a single comple+ crime caused by a single e+plosive, it was held that since said cases were 9ointl% tried, the technical error was deemed cured and the accused could not claim double )eopardy. Q&E%T!ON 11K %he court rendered )udgment convicting ?o)o of ILess Serious Phyical n)uriesJ and imposed on him the penalty of four , = . months of arresto mayor. Eowever, the court did not, despite the evidence on record, order ?o)o to pay actual damages and moral damages. # day after the promulgation of the Fecision, ?o)o filed a IPetition for ProbationJ with the court. %wo ,1. Fays after ?o)o had filed his petition, the private prosecutor, without the conformity of the Public Prosecutor, filed a I 9otion for $econsiderationJ of the Fecision only on the civil liability of ?o)o. -.. Fid the decision of the court become final and e+ecutory when ?o)o filed his Petition for Probation' C+plain. 1.. Fid the court retain )urisdiction over the case to ta3e cogni*ance of and resolve the motion of the Private Prosecutor' C+plain. 2.. f the court granted the motion of the Private Prosecutor, may the court amend its Fecision to include civil liability of ?o)o without violating ?o)o"s right against double )eopardy' C+plain. %&""E%TED AN%)ER%K -.. $E%. Section : of $ule -1> provides that a )udgment in criminal case become final ,a. when no appeal is seasonably filed! ,b. when the accused commenced to serve sentence: ,c. when the right to appeal is e+pressly waived in writing, e+cept where the death penalty was imposed by trial court, and ,d. when the accused applies for probation as he thereby waives the right to appeal. 1.. $E%. %he trial court can validly amend the civil portion of its decision within -8 days from promulgation thereof even though the appeal had in the meantime been perfected by the accused from the )udgment of conviction. , People vs. Ursua, 7> Phil 181 .. t can, within the said period, order the accused to indemnify the offended party, although the )udgment had become final. , People vs. $odrigue*, 6: Phil 2=6 .. %he reason for this is that the court continues to retain )urisdiction insofar as the civil aspect is concerned. #fter the lapse if the -8<day period, there can no longer be any amendment of the decision. 2.. $E%. %his is an e+ception to the rule that a )udgment of conviction cannot be modified after it has become final, otherwise such modification would amount to double )eopardy. #s previously stated, the trial court can validly amend the civil portion of its decision within -8 days from promulgation thereof. Q&E%T!ON 15K %he trial court found #llan guilty of violation of PF -;77 , possession of unlicensed firearm . and meted on him the penalty of from fifteen ,-8. years of reclusion temporal, as minimum, to -; years of reclusion temporal, as ma+imum. #llan appealed the Fecision to the Court of #ppeals. Furing the pendency of the appeal, $# ;16= too3 effect. %he Court of #ppeals affirmed the Fecision of the trial court but reduced the penalty to one ,-. year of prision correctional as minimum, to 8 years of prision correccional, as ma+imum. %he decision of the Court of #ppeals became final and e+ecutory after which the records of the case were remanded to the trial court. s #llan entitled to probation under the Probation Law' C+plain.

%&""E%TED AN%)ERK NO. Section = of PF 67; , Probation Law. provides that no application for probation shall be entertained or granted if the defendant has perfected an appeal from the )udgment of conviction. %hus, when #llan has perfected his appeal, his right to apply for probation was lost. Q&E%T!ON 16K Pedro was charged in the $%C of the crime of theft under #rt. 2>; of the $PC. Eowever, the nformation did not allege the value of the property stolen. f you are the counsel of Pedro, would you file a I9otion for a /ill of ParticularsJ or a I9otion to SuashJ the nformation' C+plain. %&""E%TED AN%)ERK would file a 9otion for a /ill of Particulars praying that the prosecution specify the value of the property stolen to enable my client, Pedro, to properly plead and prepare for trial. f the value of the property is considerably small, my client could raise the defense that one of the elements in the crime of theft is lac3ing, i.e., intent to gain. Q&E%T!ON 1?K #fter the requisite preliminary investigation, the &mbudsman approved a resolution finding probable cause against @overnor Pedro for violation of the #nti<@raft and Corrupt Practices #ct. @overnor Pedro filed a Petition for Certiorari with the Sandiganbayan, under the provisions of $# :6:8, questioning the factual basis for the resolution. Eowever, the Sandiganbayan dismissed the Petition contending that the Petition should be filed with the Supreme Court pursuant to Sec. 1: of the $# 7::>. s the Sandiganbayan correct' C+plain. %&""E%TED AN%)ERK NO. n <a+ian v&* Di&ierto / GRN #8$%=8, Sept* #7, #$$>. , Sec. 1: of $# 7::>, which authori*es an appeal to the Supreme Court from decisions of the &ffice of the &mbudsman in administrative disciplinary cases, was declared violative of the proscription in Sec. 2>, #rt. D , of the Constitution against a law which increases the appellate )urisdiction of the Supreme Court without its advice and consent. n addition, the Court noted that $ule =8 of the -66: $ules of Civil Procedure precludes appeals from quasi<)udicial agencies, li3e the &ffice of the &mbudsman, to the Supreme Court. Consequently, appeals from decisions of the &ffice of the &mbudsman in administrative cases should be ta3en to the Court of #ppeals under $ule =2, as reiterated in the subsequent case of Na(uhe v* -(+ud&(an. n both <a+ian and Na(uhe, the petitions were referred to the Court of #ppeals for final disposition and considered as petitions for review under $ule =2 of the -66: $ules of Civil Procedure. * Iillavert vs. Disierto, 0R? 1 '1#, Ae"ruar% ! ,!,,, ) Q&E%T!ON 1CK Upon the filing of the nformation of Eomicide against Pedro, who was then at large, he filed a I9otion to SuashJ the nformation on the ground of lac3 of territorial )urisdiction of the Court and a I9otion to Suspend the ssuance of a (arrant of #rrestJ pending resolution of his I9otion to Suash.J -.. 9ay Pedro file the 9otion to Suash before he is arrested or before he surrenders' C+plain. 1.. 9ay the court hold in abeyance the issuance of a warrant of arrest against Pedro pending resolution of his I9otion to SuashJ' C+plain. %&""E%TED AN%)ER%K -.. $E%. %he $ules provide that Iat any time before entering his plea, the accused may move to quash the complaint or information.J , Sec. -, $ule --: . 1.. NO. Q&E%T!ON 17K ?uan was charged of IBrustrated 9urderJ with the $%C. Furing the pendency of the trial, the victim of the crime died but the nformation was not amended to I 9urderJ although the prosecution informed the court of the death of the victim. f the court finds ?uan criminally liable for the 3illing of the victim, would it be proper for the court to convict ?uan of I9urderJ ' C+plain.

%&""E%TED AN%)ERK NO. n the absence of an amendment, with leave of court, to the original complaint of Brustrated 9urder, the accused cannot be convicted of 9urder because that it would be in violation of his right to be informed of the nature of the accusation against him. Eowever, such conviction shall not be a bar to the filing of a case for 9urder. Sec. : of rule --: provides that the conviction of an accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint when the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge. Q&E%T!ON 14K ?uan was charged of 9urder with the $%C. Furing the trial, the prosecution, over the ob)ection of ?uan, presented evidence that the victim of the murder was the illegitimate son of ?uan. #fter the prosecution rested its case, ?uan escaped from detention. %he court, thereupon, rendered its Fecision convicting ?uan of parricide with one generic aggravating circumstance and sentenced ?uan to death. %he court declared in its Fecision that the nformation was deemed amended to Parricide to conform to evidence. -.. (as it proper for the court to render )udgment after the escape of ?uan form detention' C+plain. 1.. s the Fecision of the court convicting ?uan of parricide on the premise that the information was deemed amended to conform to evidence correct' C+plain. 2.. (ould it be proper for the court to promulgate its Fecision despite the absence of ?uan' C+plain. =.. (ill the decision of the court become final and e+ecutory after the lapse of -8 days form promulgation if ?uan is not arrested or does not surrender within said period' C+plain. %&""E%TED AN%)ER%K -.. NO. %he escape of ?uan from detention does not warrant an immediate rendition of )udgment as the trial can proceed in a+&entia. 1.. NO, because after arraignment during trial , the prosecution cannot alter, add or modify the accusations stated in the information over the ob)ection of the accused. 2.. $E%# provided that notice was properly served in accordance with Sec. 7 of $ule -1> of the $evised $ules in Criminal Procedure. %he said rule provides that if the accused was tried in absentia because he )umped bail or escaped from prison, the notice to him shall be served at his last 3nown address. =.. $E%# if ?uan does not surrender within -8 days from promulgation of )udgment, he shall lose the remedies available in the $ules. Q&E%T!ON 1DK (hat court has e+clusive original )urisdiction over the following offenses' -.. Libel punishable with prision correccional in its minimum and medium periods or a fine from P 1 >> to P 7,>>>, or both! 1.. Diolation of /P 11 covering a chec3 in the amount of P2>>,>>> %&""E%TED AN%)ER%K -.. %he 9etropolitan %rial Courts, 9unicipal %rial Courts and 9unicipal Circuit %rial Courts have )urisdiction since the imposable penalty does not e+ceed four years and two months and a fine of not more than four thousand pesos. , Sec. 2- 415 of /P -16 . 1.. %he )urisdiction for violation of /P 11 belongs to the aforesaid courts because it is now governed by the $ules on Summary Procedure. Q&E%T!ON 1@K Under what circumstances may the 9%C issue a warrant of arrest under the $ules on Summary Procedure' C+plain. %&""E%TED AN%)ERK Section -7 of the $evised $ules on Summary Procedure provides that I the court shall not order the arrest of the accused unless for failure to appear whenever required. G+++++J

Q&E%T!ON 5BK 9ay the #ccused file a IFemurrer to CvidenceJ under the $ules on Summary Procedure' C+plain.

%&""E%TED AN%)ERK $E%. # petition for Femurrer to Cvidence is not among the prohibited pleadings under the $ules on Summary Procedure. Q&E%T!ON 51K Pedro was charged of the crime of squatting penali*ed by PF ::1. Pedro, in turn, filed a civil complaint against ?uan, the Private Complainant in the criminal case, claiming ownership over the said property. %hereafter, Pedro filed, in the criminal case, a motion to suspend the proceedings on the ground of a pre)udicial question. %he court issued an &rder granting the said motion. (hile Pedro was adducing evidence in the civil case, PF ::1 was absolutely repealed. s the order of the court suspending the criminal case for squatting, on the ground of a pre)udicial question correct' C+plain. %&""E%TED AN%)ERK NO. t has been held that a pre)udicial question that which must precede the criminal case and the resolution of which is detrminative of the innocence or guilt of the accused. n this case, the civil case was filed after the institution of the criminal case, thus, it is not a pre)udicial question. Q&E%T!ON 55K 9ay the filiation of illegitimate children be proved by hearsay evidence' C+plain. %&""E%TED AN%)ERK $E%, under Section 2> of $ule -2>, pedigree may be proved by acts or declarations of relatives , whether legitimate or illegitimate since the law does not distinguish. provided that: ,a. the actor or declarant is dead or unable to testify! ,b. the act or declaration is made by a person related to the sub)ect by birth or marriage! ,c. the relationship between the declarant or the actor and the sub)ect is shown by evidence other than such act or declaration! and ,d. the act or declaratioin was made ante litem mortam, or prior to the controversy. Q&E%T!ON 56K f an #ccused e+ecuted a valid e+tra)udicial confession, may he be convicted of the crime charges if the Prosecution adduced, in addition to the confession, only circumstancial evidence to prove corpus delicti' C+plain. %&""E%TED AN%)ERK $E%. Section 2 of $ule -22 states that a mere voluntary e+tra)udicial confession uncorroborated by independent proof of the corpus delicti is not sufficient to sustain a )udgment of conviction. %here must be independent proof of the corpus delicti. %he evidence may be circumstantial but )ust the same, there should be some evidence substantiating the confession. , US vs. Fe la Cru+, 1 Phil. -=; . Q&E%T!ON 5?K (ould you answer to the immediately preceding question be the same if the Prosecution adduced, an addition to the confession, only substantial evidence to prove corpus delicti' C+plain.

%&""E%TED AN%)ERK $E%. (hat is required is that some evidence apart from the confession would tend to show that the crime was in fact committed. %his may be supplied by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to )ustify a conclusion. Q&E%T!ON 5CK Lucio was charged of Parricide. Upon arraignment, Lucio pleaded not guilty. Furing pre<trial, Lucio, with the assistance of counsel, admitted that the deceased was his wife and that he 3illed her. %he court issued a Pre<%rial &rder embodying the admissions of Lucio during the pre<trial. /oth Lucio and his counsel signed the Pre<%rial &rder. -.. #re the admissions of Lucio during the pre<trial )udicial admission against penal interest' C+plain. 1.. (ould your answer be the same if the admissions of Lucio, during the pre<trial, were not embodied in a IPre<%rial &rderJ of the Court' C+plain.

2..

f the Court rendered a Fecision convicting Lucio of Parricide on the basis of his #dmissions during the pre<trial embodied in the Pre<%rial &rder of the Court, is not Lucio thereby deprived of his right to adduce evidence in his behalf' C+plain.

%&""E%TED AN%)ER%K -.. $E%. %he testimony of the accused in a parricide case to the effect that he was married to the victim is an admission against his penal interest and can sustain his conviction even in the absence if independent evidence to prove such marriage. , People vs. #ling, L<2;;22, 9arch -1, -6;> .. %he same can be applied to the admission made by the accused during the pre<trial. 1.. NO. (here the admission is not embodied in the Pre<trial &rder, the same cannot be used against the accused. 2.. NO. %he admission of the accused in embodied in the Pre<trial order, being a )udicial admission, does not require further proof. %he admitter can no longer contradict such admission unless to show that it was made through palpable mista3e or that no such admission was made.

>?T=R AL>A BAN9 OF T'E P'! !PP!NE !% AND% vs. A % MANA"EMENT L DE-E OPMENT CORP. >".R. No. 1C1D51. A1ril 1?# 5BB?.A PAN"AN!BAN# * 1K FACT%K &n ?uly 16, -6;8, petitioner /P nvestment Corporation filed a complaint for a Sum of 9oney against #LS 9anagement and Fevelopment Corporation alleging that the respondent failed to pay the necessary e+penses for the registration of the Condominium Certificate as stipulated in the contract. n its #nswer with Compulsory Counterclaim, respondent averred among others that it has )ust and valid reasons for refusing to pay petitionerLs legal claims because it is in clear and direct contravention of Section 18 of Presidential Fecree Ao. 68: which provides that LAo fee e+cept those required for the registration of the deed of sale in the $egistry of Feeds shall be collected for the issuance of such titleL, the 4petitioner5 has )ac3ed<up or increased the amount of its alleged advances for the issuance and registration of the Condominium Certificate of %itle in the name of the 4respondent5, by including therein charges which should not be collected from buyers of condominium units. $espondent further alleged that the petitioner has breached conditions of their contract. %he appellate court sustained the trial courtLs finding that Kwhile petitioner succeeded in proving its claim against the respondent for e+penses incurred in the registration of 4the latterLs5 title to the condominium unit purchased, . . . for its part respondent in turn succeeded in establishing an even bigger claim under its counterclaim.K Eence, this Petition.

!%%&EK (hether or not the Eonorable Court of #ppeals erred in not holding that the trial court had no )urisdiction over the respondentLs counterclaims. 'E DK NO. Pursuant to Sec. - of PF -== ,Cmpowering the Aational Eousing #uthority to ssue (rits of C+ecution in the Cnforcement of ts Fecisions Under Presidential Fecree Ao. 68:. the respondentLs counterclaim M being one for specific performance ,correction of defectsOdeficiencies in the condominium unit. and damages M falls under the )urisdiction of the ELU$/ and not the $%C. Eowever, the issue of )urisdiction can no longer be raised in the instant case. %he general rule is that any decision rendered without )urisdiction is a total nullity and may be struc3 down at any time, even on appeal before this Court. ndeed, the question of )urisdiction may be raised at any time, provided that such action would not result in the moc3ery of the tenets of fair play. #s an e+ception to the rule, the issue may not be raised if the party is barred by estoppel. n the present case, petitioner proceeded with the trial, and only after a )udgment unfavorable to it did it raise the issue of )urisdiction. %hus, it may no longer deny the trial courtLs )urisdiction, for estoppel bars it from doing so. %his Court cannot countenance the inconsistent postures petitioner has adopted by attac3ing the )urisdiction of the regular court to which it has voluntarily submitted. %he Court frowns upon the undesirable practice of submitting oneLs case for decision, and then accepting the )udgment only if favorable, but attac3ing it for lac3 of )urisdiction if it is not. (e also find petitioner guilty of estoppel by laches for failing to raise the question of )urisdiction earlier. Brom the time that respondent filed its counterclaim on Aovember ;, -6;8, the former could have raised such issue, but failed or neglected to do so. t was only upon filing its appellantLs brief 17 with the C# on 9ay 1:, -66-, that petitioner raised the issue of )urisdiction for the first time. n %i)am v. Sibonghanoy, we declared that the failure to raise the question of )urisdiction at an earlier stage barred the party from questioning it later. %hus, we struc3 down the defense of lac3 of )urisdiction, since the appellant therein failed to raise the question at an earlier stage. t did so only after an adverse decision had been rendered. (e further declared that if we were to sanction the said appellantLs conduct, Kwe would in effect be declaring as useless all the proceedings had in the present case since it was commenced . . . and compel the )udgment creditors to go up their Calvary once more. %he inequity and unfairness of this is not only patent but revolting. *O%E AM vs. ADR!ANA C'&A >".R. No. 1615D7. Mar<; 1D# 5BB?A A&%TR!A,MART!NEE# /.K FACT%K &n 9arch --, -66= #driana Chua filed a petition for declaration of nullity of marriage by #driana Chua against ?ose Lam in the $egional %rial Court of Pasay City. #driana prayed that the marriage between her and ?ose be declared null and void but she failed to claim and pray for the support of their child, ?ohn Paul. %he trial court declared the marriage between Lam and Chua null and void and ?ose Lam was ordered to give a monthly support to his son ?ohn Paul Chua Lam in the amount of P1>,>>>.>>. &n Aovember 2, -66=, ?ose filed a 9otion for $econsideration thereof but only insofar as the decision awarded monthly support to his son in the amount of P1>,>>>.>>. Ee argued that there was already a provision for support of the child as embodied in the decision dated Bebruary 1;, -66= of the 9a3ati $%C wherein he and #driana agreed to contribute P18>,>>>.>> each to a common fund for the benefit of the child. &n #ugust 11, -668, the Pasay $%C issued an &rder denying ?ose Lam"s motion for reconsideration ruling that the compromise agreement entered into by the parties and approved by the 9a3ati $%C before the marriage was declared null and void a+ initio by the Pasay $%C, is of no moment and cannot limit andOor affect the support ordered by the latter court. ?ose then appealed the Pasay $%C"s decision to the Court of #ppeals which affirmed the Pasay $%C"s decision in all respects. ?ose filed a motion for reconsideration of the Fecision but in a $esolution dated &ctober 1:, -66:, the Court of #ppeals denied the same. Eence, ?ose filed the present petition for review on certiorari under $ule =8 of the $ules of Court. !%%&E%K -. (hether the $%C<Pasay is barred from awarding support in favor of ?ohn Paul Law in view of the previous compromise agreement entered into by the parties. 1. (hether the decision rendered by the $%C<Pasay is tainted with irregularities. 'E DK

-. A&. %he Pasay $%C and the Court of #ppeals are both correct insofar as they ruled that the amount of support is by no means permanent. n Advincula v&* Advincula, we held that another action for support could be filed again by the same plaintiff notwithstanding the fact that the previous case for support filed against the same defendant was dismissed. (e further held in said case that: . . . ?udgment for support does not become final. %he right to support is of such nature that its allowance is essentially provisional! for during the entire period that a needy party is entitled to support, his or her alimony may be modified or altered, in accordance with his increased or decreased needs, and with the means of the giver. t cannot be regarded as sub)ect to final determination. %hus, there is no merit to the claim of ?ose that the compromise agreement between him and #driana, as approved by the 9a3ati $%C and embodied in its decision dated Bebruary 1;, -66= in the case for voluntary dissolution of con)ugal partnership of gains, is a bar to any further award of support in favor of their child ?ohn Paul. %he provision for a common fund for the benefit of their child ?ohn Paul, as embodied in the compromise agreement between herein parties which had been approved by the 9a3ati $%C, cannot be considered final and re& ?udicata since any )udgment for support is always sub)ect to modification, depending upon the needs of the child and the capabilities of the parents to give support. 1. $E%. %he Court notes four circumstances that taint the regularity of the proceedings and the decision rendered by the trial court. First, the only ground alleged in the petition for declaration of nullity of marriage filed by #driana with the Pasay $%C is the psychological incapacity of ?ose without any prayer for the support of her child. /ut on a motion to re<open filed subsequently by her, the trial court set the case for reception of evidence and subsequently allowed #driana to present evidence on two previous marriages contracted by ?ose with other women to prove that the marriage between #driana and ?ose was null and void for being bigamous. t is only later on that respondent #driana first claimed support for ?ohn Paul when she testified in open court. %he petition of #driana was, in effect, substantially changed by the admission of the additional evidence. %he ground relied on for nullity of the marriage was changed from the psychological incapacity of ?ose to that of e+istence of previous marriages of ?ose with two different women with an additional claim for support of the child. Such substantial changes were not reflected in the petition filed with the trial court, as no formal amendment was ever made by #driana e+cept the insertion of the handwritten phrase I And for re&pondent to &upport the child of petitioner in an a(ount thi& @onora+le Court (ay dee( ?u&t and rea&ona+le J found at the ultimate paragraph of the petition, as allowed by the Pasay $%C. %here is nothing on record to show that petitioner ?ose was notified of the substantial changes in the petition of #driana. %e<ond, the Pasay $%C did not give ?ose an opportunity to be present on ?uly 7, -66= for the presentation of evidence by #driana and to refute the same. T;ird, the records do not show that petitioner was sent a copy of the &rder dated ?uly 7, -66= wherein the trial court granted the Urgent 9otion to $e<&pen of respondent #driana and forthwith allowed her to present her evidence to prove that petitioner herein contracted previous marriages with different women. Fourt;, the evidence presented by respondent regarding her claim for support for ?ohn Paul is glaringly insufficient and cannot be made a valid basis upon which the Pasay $%C could have determined the monthly amount of P1>,>>>.>> for the support to be given to ?ohn Paul by petitioner ?ose. # party who has been declared in default is entitled to service of substantially amended or supplemental pleadings.Considering that in cases of declaration of nullity of marriage or annulment of marriage, there can be no default pursuant to Section 7, $ule -; of the $evised $ules of Court in relation to #rticle =; of the Bamily Code, it is with more reason that petitioner should li3ewise be entitled to notice of all proceedings. Burthermore, it is also a general principle of law that a court cannot set itself in motion, nor has it power to decide questions e+cept as presented by the parties in their pleadings. #nything that is decided beyond them is coram non<)udice and void. T;ere:ore w;ere a <ourt enters a =ud03ent or awards relie: /eyond t;e 1rayer o: t;e <o31laint or t;e s<o1e o: its alle0ations t;e eI<essive relie: is not 3erely irre0ular /ut is void :or want o: =urisdi<tion# and is o1en to <ollateral atta<k. %he appellate court also ruled that a )udgment of a court upon a sub)ect within its general )urisdiction, but which is not brought before it by any statement or claim of the parties, and is foreign to the issues submitted for its determination, is a nullity. ,Cmphasis supplied. Pursuant to the foregoing principle, it is a serious error for the trial court to have rendered )udgment on issues not presented in the pleadings as it was beyond its )urisdiction to do so. %he amendment of the petition to reflect the new issues and claims against ?ose was, therefore, indispensable so as to authori*e the court to act on the issue of whether the marriage of ?ose and #driana was bigamous and the determination of the amount that should have been awarded for the support of ?ohn Paul. (hen the trial court rendered )udgment beyond the allegations contained in the copy of the petition served upon ?ose, the Pasay $%C had acted in e+cess of its )urisdiction and deprived petitioner Lam of due process. nsofar as the declaration of nullity of the marriage between #driana and ?ose for being bigamous is concerned, the decision rendered by the Pasay $%C could be declared as invalid for having been issued beyond its )urisdiction. Aonetheless, considering that ?ose, did not assail the declaration of nullity of his marriage with #driana in his motion for reconsideration which he filed with the Pasay $%C. n the petitions he filed in the Court of #ppeals and with us, he li3ewise did not raise the issue of )urisdiction of the Pasay $%C to receive evidence and render )udgment on his previous marriages with other woman which were not alleged in the petition filed by #driana. Petitioner ?ose is estopped from questioning the declaration of nullity of his marriage with #driana and therefore, the Court will not undo the )udgment of

the Pasay $%C declaring the marriage of #driana and ?ose null and void for being bigamous. t is an a+iomatic rule that while a )urisdictional question may be raised at any time, this, however, admits of an e+ception where estoppel has supervened. %#LLH &B %EC 9&S% B$CSUCA%LH #SNCF SUCS% &AS %&B*ECT% !NC &%!-E $EAR% C!-! PROCED&RE #ctionable document -6;7 -6;: -66> -66-667 -6;8 1>>2 -6;7 -662 -66= 1>>> -661 1>>= -666 -66: 1>>2 -6;; -6;: -6;; -667 -66: -66; -666 -66: -666 -6;7 -66-666 1>>> -6;7 -6;; -666 -66= -66-66= -6;: -667 -666 -66; -6;8 -66= -666 1>>= -667 -66; 1 1 1 8 1 1 1 2 FREQ&ENC$ TOTA

C 1 1

#mended vs. Supplemental pleadings #mendment of Complaint #mendment of Pleadings

? 6 1 1 1 1

#mendment to Conform to Cvidence /ar by Prior ?udgment /ar by prior )udgment vs. conclusiveness of )udgment /ill of Particulars Capacity to sue Cause of #ction

4 5

Cause of action vs. action Certiorari ,$ule =8 vs. $ule 78. Certiorari as mode of #ppeal ,$ule =8. Classification of #ctions i.e. real actions, quasi in rem, in rem etc. Class suit Compromise ?udgment Construction of $ules of Court Counterclaim compulsory

? ? C 5 ? 1

permissive

1B

Counterclaim vs. Cross<claim Cross<claim Feath, effect on the Case Feclaratory $elief Fecision Fefault effect remedies motion to set aside order of default when may a party be declared in default Fefenses in an #nswer Femurrer to Cvidence

-666 -66: -666 -668 -66; 1>>2 1>>= -668 -666 1>>> -66; 1>>1 -666 -6;8 -66-66= 1>>1>>= 1>>1 1>>2 -662 -66: -6;6 -667 -6;: -66-6;6 -6;8 -6;: -661 -662 -66: -66> -66-668 1>>1 -667 1>>> -662 -667 -66; -6;7 -667 1>>2 -66; -661>>> -6;8 -667 -666 -6;6 -6;7 -66;

8 2 1 2 -

1 1 7 1 5

D 1

granted but reversed on appeal

4 1 1 5 1 1 1

Fenial of Complaint Fepositions pending action Fismissal of #ctions ,$ule -:. Fismissal of #ction on the @round of Prescription Foc3et fees Crror of ?udgment vs. error of )urisdiction C+ecution of ?udgment

C 5 1 5 5 1 5 1 1 5

C+ecution pending appeal Bamily Courts confidentiality Borum<shopping Eierarchy of Courts mproper Denue ndispensable party n)unction nterpleader ntervention ?oinder of causes of action permissive )oinder of actions

? ?

?oinder of parties Aon<)oinder of necessary parties

?oinder of causes of action vs. )oinder of parties ?udgment ,basis. ?udgment on the Pleadings ?udgment on the pleadings vs. summary )udgment ?urisdiction and venue in libel cases ?urisdiction of courts

-667 1>>2 -666 -6;8 -668 -6;8 -6;7 -6;; -6;6 -661 -662 -66: -66; 1>>> 1>>= -6;: -66= -6;; -6;8 -6;; -668 -666 1>>1 -666 1>>> 1>>-667 1>>= -666 -6;7 -6;7 -66> -66-661 -66= -66; -6;; -6;6 1>>> 1>>2 -6;8 -6;: -6;; -661 -667 -666 -666 1>>> 1>>-667 -66; -6;6 -66-6;6

2 1 1 = 1 1 2 1 1 1 1 1 6 1 1

17 5 1

?urisdiction over the Person ?urisdiction vs. Cause of #ction Natarungang Pambarangay Law ,PF -8>;. e+ecution of settlementOagreement

Natarungang Pambarangay Law ,Conciliation Proceedings. vs. Pre<%rial Conference Ninds of Pleadings 9anner of 9a3ing #llegations in the Pleading 9andamus 9is)oinderOnon<)oinder of parties 9ode of #ppeal

6 1 1 1 1

@ 1

9otion for C+tension of %ime 9otion for $econsideration 9otion to Fismiss

4 ? 5 5

&rder of Fefault &rdinary action vs. special proceedings Perfection of #ppeal Pre<%rial

$eal Party<in<interest $ecords of child and family cases $emedies to set aside final U e+ecutory )udgment $eply $es ?udicata $ule =8 vs. $ule 78 Splitting causes of action

-661 -662 1>>1>>1 -6;6 1>>-668 -66: -667 1>>> -6;7 -6;6 1>>> -66-6;8 -667 -66; -666 -66: -6;; -6;6 -66> -6;8 -6;: -6;6 -667 -6;7 -6;7 -6;; -66> -668 -667 1>>= -6;6 -66> -666 1>>= -666 -666 -662 -662 -667 -66: -6;6 -6;7 -6;; -667 -667 -6;; -668 -6;8 -6;: %PEC!A C!-! ACT!ON%

1 1 1 2 1 -

C 1 1 5 5 6 1

Subpoena Fuces tecum Supersedeas /ond Summary ?udgment

? 1 6

Summary procedure

1B

Summons effect on corporations C+traterritorial Service

%hird<party Complaint %otality $ule in ?urisdiction Denue Derification of Pleadings (rit of C+ecution #lias (rit of C+ecution

6 1 C 5 5 5

#ttachment Contempt Certiorari as an original action ,$ule 78.

-6;7 -6;; -668 -66; -667 -66;

1 1

5 5

Feclaratory relief C)ectment

Boreclosure of $eal Cstate 9ortgage nterpleader Partition Preliminary #ttachment (hen 9ay be #ttached, Famages Preliminary n)unction $eceivership $eplevin

-666 1>>= -6;8 -6;7 -6;8 -66> -66-661 -667 -66: -66; -6;7 1>>2 -6;8 -6;; -667 -6;7 1>>> -667 -666 1>>-667 1>>1>>1>>1 -6;6 -667 -666 1>>= -6;7 -666 1>>1>>1 -6;; -6;6 -662 1>>1 -6;; -6;8 -66> 1>>1 1>>> -66-662 -6;6 1>>1 1>>1>>1>>1 1>>1 %PEC!A PROCEED!N"%

2 1 1 1 1 1 -

D 5

@ 5 6 5 ? 6 5 6 1 ?

$ules on Summary Procedure Support Pendente Lite

%emporary $estraining &rder ,%$&. effect of violation issuance of %$& e+ parte Unlawful Fetainer (rit of preliminary #ttachment e+ parte Fischarge of #ttachment Cffect of Diolation

? 1

(rit of Preliminary n)unction e+ parte Suo (arranto vs. 9andamus filed by Solicitor @eneral, venue

#ctions against C+ecutors and #dministrators e+ceptions #doption #ppointment of #dministrator

-6;8 1>>1 -6;8 -6;; -66;

1 6 1 5 5

#llowance or Fisallowance of (ill Lost or Festroyed (ill Change of Aame Claim #gainst Cstate Civil #ctions vs. Special Proceedings Correction of Cntries Cscheat, venue of C+tra<)udicial Settlement @uardianship Eabeas Corpus

Eabeas Corpus vs. Preliminary Citation Eow to Prove 9oney Claim against the Cstate of the Feceased Preliminary Citation Probate of (ill Probate Court, ?urisdiction

-666 -661 -6;: -66; -662 -66: -66= -66; 1>>-6;8 -6;8 -662 -668 -66; 1>>2 -668 -6;: -668 -661 -66> 1>>1>>1 1>>2 -6;; CR!M!NA PROCED&RE

1 1 1

1 1 1 1 1 1 ? 1

7 1 1 1 1

Unlawful Fetainer

? 5

#mendment of information

downgrades the nature of the offense #mendment vs. Substitution of nformation /ail

forms of bail, when a matter of right and when a matter of discretion Change of #ttorneys Civil liability ,$ule ---. Complaint vs. nformation Conditional e+amination of witnesses for the prosecution Continuous %rial system Custodial nvestigation Femurrer to Cvidence

-6;8 -6;: -66: 1>>1>>1 -66= -6;6 -66-662 -66= -668 -667 -66; -666 -6;7 -668 -667 -666 -6;8 -6;7 -66-6;6 -667 -66; 1>>1>>1 1>>2 1>>= -6;;

1 1 = 1 2 -

7 1

15 1 6 1 1 1 1

@ 1

Fischarge of State (itness

Fismissal on nolle pro&eAui Fouble ?eopardy

Fuplicity of &ffense Cffect of Feath of accused on criminal liability Cn)oinment of the Prosecution Cquipoise $ule C+tent of Prosecutor"s duty in the prosecution of the case C+tradition %reaty and Law Binality of ?udgment nformation alleging aggravating circumstance ?urisdiction continuing offense court martial Fangerous Frugs #ct libel 9odification of ?udgment 9otion to Suash

1>>2 -6;8 -6;: -6;; -662 -66= -662 -668 -6;6 -668 -66> 1>>> 1>>= -6;8 -66= -668 -667 1>>1 -6;6 -66> -66= -668 -6;6 -6;7 -6;: -6;6 -66= -668 -66; 1>>2 -66; -668 -661 -662 -668 -667 -668 -6;8 -6;7 -66-66; 1>>= 1>>2 -66> -662 -6;7 -6;6 1>>= -6;6 -667 1>>1>>1

1 1 1 1 1 1 1 1 1 -

4 1 1 1 1

5 1 1

? 1

Aewly Fiscovered Cvidence, grounds Plea /argaining Plea of @uilt, Cffect of

1B 5 1

Pre)udicial Suestion Preliminary nvestigation

7 1

7 1 5 6 1 1 5

Preponderance of Cvidence v. Substantial Cvidence Prescription of &ffense Pre<%rial Promulgation of ?udgment Prosecution of Civil #ction Prosecution of /.P. 11 civil action

Prosecution of Criminal #ctions ,(ho may Prosecute. $eservation of ndependent Civil #ction $ights of #ccused against self<incrimination O right to a counsel $ights in Custodial nvestigation Search and Sei*ure stop and fris3O terry search State (itness Sufficiency of nformation Summary Procedure Suspension upon filing of nformation Dalidity of a )udgment of conviction (arrantless #rrest (rit of replevin, when it may be issueF

1>>> -668 1>>> -661 -667 -66; 1>>= -66> -66= -668 1>>2 -6;; -66> -66= -66= 1>>-6;6 1>>1>>= -6;; 1>>> 1>>= 1>>2 E-!DENCE

1 1 -

1 5

7 1 6 6 5 1 1 1 6 1

#dmissibilty of Cvidence

#dmissibility of Clectronic Cvidence #dmissibility of llegally Sei*ed #rticles #ncient Focument /est Cvidence $ule

/road Side &b)ection vs. Specific &b)ection Circumstantial evidence Common $eputation Corpus Felicti Fead 9an"s Statute Fying Feclaration

-66-66= -66; 1>>2 1>>2 -66; -66> -6;; -661 -66= 1>>> 1>>1 -66= -6;7 -6;7 -66> -6;; 1>>1>>1 -6;: -66-662 -66; -666 -66-661 -668 -6;: -66= -666 -66=

2 1 1 1 1 -

7 1 1 1

4 1 1 1 1 6

C 6

Fying Feclaration vs. $es @estae Eearsay $ule

C+ceptions to Eearsay $ule

C+tra)udicial Confession Bormal offer of evidence Bormal offer of Cvidence vs. &ffer of Proof Ninds of Cvidence Laying the predicate 9arital Fisqualification $ule 9arital Privilege 9odes of Fiscovery &ffer of Compromise as implied admission of guilt &ffer of Cvidence &ffer of %estimony vs. &ffer of Focumentary Cvidence Parental and Bilial Privilege Parol Cvidence $ule vs. /est Cvidence $ule Parol Cvidence $ule e+ception Presentation of Cvidence Presentation of (itnesses Past $ecollection $ecorded Present $ecollection $evived vs. Present $ecollection $ecorded Presumptions Conclusive Fisputable Privileged communication Sualification of (itnesses $ecall of (itnesses $es @estae $es nter #lios #cta $ight and &bligations of (itnesses (eight of %estimony Sources:

-666 1>>> -6;; -66: -66-66= -667 -6;6 -668 1>>> -66; 1>>= 1>>> -6;7 -6;6 -6;: -66= -6;7 -66; -6;8 -6;; 1>>1>>1 -662 -668 -66: -667 -6;8 -668 -6;8 -6;7 -66; -6;7 -66= -66: -6;8 -6;; -66-6;7 -66= -66=

1 1 1 2 2 -

D 1 1 1 1 1 6 5 1 5 1 1 5 1 6

5 5 1 1 6 5 7 1 5 1 5 1

RE-!E)ER 5 Laggui $eviewer %ranscribed @ally Aotes (ith $ene Aotes /y:$ene Callanta R& E ! Q. (hen does an action deemed commenced' A. #n action is deemed commenced upon the filing of the complaint. %his is the provision of the old rule. /ut this old rule that an action is deemed commenced as of the date the complaint is filed has been amended to include a provision which envisions a case when the action is already filed and is amended to include an additional defendant.

EIa31leK %he case was filed Fec.1, -66: by # against / only. Under this rule, the action is deemed commenced on Fec. 1, -66: in so far as only # and / are concerned. &n . Fec 2,-66: # filed an amended complaint including now C. Q. (hen is this action deemed commenced' A. nsofar as # and / are concerned, the action is deemed commenced on Fec. 1, -66:. /ut insofar as it concerns # and C, the action is deemed commenced on Fec. 2, -66: ,as to C.. S. (hy do we distinguish the date of commencement of an action in this situation where the is an additional defendant' A. /ecause we have the law on prescription. #t the time the case was filed on Fec. -, -66:, the action against / may not yet have prescribed. /ut when the complaint was amended on Fec. 2, -66:, the action of # against / and C may have already prescribed. %hat is why it is necessary to consider the situation li3e this when the action is being commenced with respect to an additional defendant. RENE NOTE%K -. #n action is commenced by the filing of the complaint and the payment of the requisite doc3et fees within the prescriptive period, this notwithstanding that summons was served on the defendant after the prescriptive period. 1. #n action can be commenced by filing the complaint by registered mail. t is the date of the mailing that is considered as the date of filing, and not the date of the receipt thereof by the cler3 of court. 2. %he amount of damages in the body of prayer of the pleading must enable the cler3 of court to compute the doc3et fees required. =. %he court may allow the payment of the deficient doc3et fee within a reasonable period but not beyond the applicable prescriptive period. (ith respect to actions, we have retained the provisions of the old code. (ith respect to some sub)ect matter under the old rule, a party plaintiff can file only one complaint based on one single cause of action. Ee cannot split its cause of action. #nd when he splits his cause of action, the subsequent actions maybe the sub)ect of a motion to dismiss. %his rule has been retained in the Aew $ules in Civil Procedure. EIa31le: ,Splitting of causes of action which have been retained. Aote: Same parties # is a resident of Sulu, / is of /atanes. %here is a piece of land located in Sorsogon. %he causes of action of # against / are as follows: -. sum of money involving P1>>,>>>.>> 1. reindivicacion over the lot valued at P8>,>>>.>> Q. Can # file a complaint against / )oining in one complaint the action for sum of money and the action for reinvidicacion ,if it can, with what court and place.' A. Let us vary the facts, the claim for money is P1>-,>>>.>>. %he value of the property is P-6,>>>.>> Q. Can # file only one complaint incorporating therein the sum of money of P1>-,>>>.>> and reindivicacion of lot valued at P-6,>>>.>>'

A.

%e<. C Rule 5Frules on =oinder o: <auses o: a<tion 8 # party may in one pleading assert, in the alternatives or otherwise, as many causes of action as he may have against an opposing party, sub)ect to the following conditions: a* the party ?oining the cau&e& of action &hall co(ply :ith the rule& on ?oinder of partie&B +* the ?oinder &hall not include &pecial civil action or action& governed +y &pecial rule&B c* :here the cau&e& of action are +et:een the &a(e partie& +ut pertain to different venue of ?uri&diction&, the ?oinder (ay +e allo:ed in the RTC provided one of the ca&e& of action fall& :ithin the ?uri&diction of &aid court and the venue lie& hereinB and d* :here the clai(& in all the cau&e& of action are principally for recovery of (oney the aggregate a(ount clai(ed &hall +e the te&t of ?uri&diction*

%he rule on )oinder is as follows: # party may )oin two or more causes of action which he has in his favor in only one complaint. So if # has -> causes of action against /, instead of # filing -> separate action against /, he may be allowed to file only one complaint, and incorporating therein all the -> causes of action. Q. Supposing his causes of action pertain to different venues or )urisdiction where will #, the plaintiff, file his -> causes of action embodied only one complaint' A. %he rule is, if these -> causes of action pertain to different venues, the action may be filed in the appropriate $%C provided that the venue of the action lies therein. n the former e+ample, the first action was the sum of money involving P1>>,>>>.>> only and the second cause of action is reinvidicacion involving P8>,>>>.>>. Since # is not obliged to allege all causes of action in one complaint, he may elect to file two separate actions: -. # vs. / for sum of money 1. # vs. / for reindivicacion. Q. f he were to file this action for sum of money only, in what court of what place may # file the complaint' A. Hou apply $ule = venue Since this is a personal action for sum of money, the venue could be the residence of plaintiff #, or the residence of the defendant / at the election of #. So this case can be filed either in Sulu or /atanes. Q. n what court in Sulu or in /atanes may this action of # be filed' A. Considering the amount which is only P1>>,>>>.>>, this is within the )urisdiction of 9%C. So this case can be filed either in the 9%C of Sulu or in the 9%C of /atanes. Q. f # were to file an action for reindivicacion, over this lot located is Sorsogon, in what place should # file the case' A. (e apply again $ule = Denue and that would be Sorsogon. Q. n what court in Sorsogon should the action be filed' A. Considering the value P8>,>>>.>>, this action should be filed only in $%C of Sorsogon. Let us assume however that # elected to file only one complaint involving these sum of money of P1>>,>>>.>> and this property involving P8>>,>>>.>>. %he court that has the )urisdiction over the sum of money of P1>>,>>>.>> is the 9%C. %he court that has the )urisdiction over reindivicacion is the $%C of Sorsogon. Q. A. (here can these two actions be filed' &nly in the $%C of Sorsogon. t cannot be filed in Sulu or /atanes. t can be filed only in Sorsogon. Let us get the reverseV %he value of sum of money is P1>>,>>>.>> and so this is within the )urisdiction of the $%C. %he value of the property here is P-6,>>>.>>, this is within the )urisdiction of the 9%C. Q. A. Can you now )oin these two' Hes, in the $%C of Sorsogon. Aot in Sulu or /atanes, but in the $%C of Sorsogon.

EIa31le: # resident of Sulu, sued / a resident of /atanes, in only one complaint alleging therein these two causes of action: -. Bor recovery of P1>>,>>-.>> sum of money, 1. Bor forcible entry over a piece of land located in Sorsogon valued at P-6,666.66. Q. Can # )oin only in one complaint on these two ,1. causes of action' A. %hese two cannot be )oined because one is an ordinary civil action ,sum of money. and the other is a special civil action ,forcible entry.. %his is one of the limitation of )oinder of causes of action. # special civil action cannot be )oined with another action which is ordinary.

EIa31leK # is a resident of Sulu, / of /atanes, C of Tamboanga. # loaned -9 to /, and the loan is evidenced by a promissory note which / signed. %he promissory note matured without / paying the money notwithstanding. # has another cause of action against / and C for another -9 pesos, a promissory note was also e+ecuted and signed by / and C. %he promissory note also matured but they did not pay. Q. Can # file only one complaint against both / and C incorporating therein these two causes of action' ,%he action against / for -9 pesos and another action against / and C for P-9. A. Ao, # cannot file only one complaint against / and C, otherwise, # will violate one of the limitations ,Sec. 8 ,a.. provided for in )oinder of Causes of #ction under $ule 1 Section 8. f # is permitted to do so, it will be a violation of the provision on $ules on ?oinder of Parties under $ule 2 Sec. 7. C has nothing to do with the first promissory note e+ecuted by /. C has no interest on the first cause of action of # against / alone. EIa31le: # has the following causes of action for recovery of money against /, all in the promissory notes that matured on: -. ?an. ->, -66; P 1>,>>>.>> 1. ?an. 1>, -66; 2>,>>>.>> 2. ?an. 2>, -66; =>,>>>.>> =. Beb. ->, -66; 8>,>>>.>> 8. Beb. -8, -66; 7>,>>>.>> 7. Beb. 1>, -66; :>,>>>.>> WWWWWWWWW P1:>,>>>.>> # is a resident of Sulu and / of /atanes. / did not pay on ?an. ->, / did not pay on each and every maturity. /ut # waited for the maturity on this loan due on Beb. 1>, -66;. Since he was not paid on Beb. 1>, -66;, he now decided to file an action involving all these sum of money. Q. Should he ,#. decide to file a case on Beb. 18, -66;, against /, in what court should the action be filed' A. t should be filed in the $%C of Sulu or in /atanes. (here all the causes of action are principally for money, the type of )urisdiction is the totality of the amounts in all the cases. f you were # and you want to file only an action for the recovery of P1>,>>>.>> you will file this with the 9%C. %his is the same with respect to other causes of action. ndividually, they are triable by the 9%C. /ut if all these causes of action are )oined in only one complaint, the totality or the language of the rule, Ithe aggregate,J of the amount furnish the )urisdictional test. So, since the amount is P1:>,>>>.>>, this is an action triable by the $%C. So you file the action not in the 9%C but in the $%C. RENE NOTE% -. n case the obligation is by installments, each installment constitute a cause of action E&(CDC$, if at the time of bringing of the suit, several installments are already due, all must be included otherwise, others not included will be barred. ,efore April $, #$$$, the )urisdiction of the 9%C was limited to P->>,>>>.>> and the $%C"s in the amount in e+cess of P->>,>>>.>>. So under the old rule, before #pril 6, -666, all claims ,money claims. not e+ceeding P->>,>>>.>> was triable by the 9%C. #ll claims e+ceeding P->>,>>>.>> were triable by the $%C. %his is the provinces. Under the old rules, where the claim was for the money and the parties thereto was the residents of 9etro 9anila, the )urisdiction of the $%C"s in 9etro 9anila was in e+cess of P1>>,>>>.>>. ,eginning, ho:ever April $, #$$$, the )urisdiction of the 9%C were e+panded as follows: n areas outside 9etro 9anila, the )urisdiction of the 9%C"s e+tended up to P1>>,>>>.>>. /ut in 9etro 9anila, /eginning #pril 6, -666, the )urisdiction of the 9%C"s was P=>>,>>>.>> So, as of now the )urisdiction of the 9etro 9anila 9%C"s is P=>>,>>>.>>. /ut in areas outside 9etro 9anila, the )urisdiction of the 9%C"s is up to P1>>,>>>.>> only. %his now the new rule which implemented Sec. 8 of $# :76-. $# :76- e+panded the )urisdiction of the 9%C"s.

Q.S%#%C %EC R<L= B? (=R)>SS>I= /B>?D=R BA (ART>=S A. %EC. 7 R& E 6 All per&on& in :ho( or again&t :ho( any right to relief in re&pect to or ari&ing out of the &a(e tran&action& i& alleged to eCi&t, :hether ?ointly, &everally, or in the alternative, (ay eCcept a& other:i&e provided in the&e Rule&, ?oin a& plaintiff& or +e ?oined a& defendant& in one co(plaint, :here any Aue&tion of la: or fact co((on to all &uch plaintiff& or to all &uch defendant& (ay ari&e in the actionB +ut the court (ay (a1e &uch order& a& (ay +e ?u&t to prevent any plaintiff or defendant fro( +eing e(+arra&&ed or put to eCpen&e in connection& :ith any proceeding& in :hich he (ay have no intere&t* %he rule contemplates a situation where there are two or more persons in whom a right to relief e+ist or against whom a right to relief e+ist. %hese two or more persons can )oin in one complaint or can be )oined as defendants in one complaint provided that there e+ist between them a question of law common to both of them. #s the term suggests , ?oinder i& not (andatory. t may be availed of by parties as plaintiffs if they want to. f they do not want to )oin as parties, they cannot be compelled. EIa31leK #, / and C are owners of ad)oining houses. G is a driver of a gasoline tan3er. /ecause of the manner G drove the tan3er, the driver struc3 a 9eralco Post. #s a result, the tan3er turned turtle ,naging pagong ang tan3erV. in the process, it e+ploded. %he fire burned the houses of #, /, and C. # can sue G for the loss of his house. / can sue G for the loss of his own house. C can sue G for the burning of his own house. f these were so, there will be now, three ,2. complaints against G. &n the other hand, #, / and C or # and / alone, or # and C, or / and C, sued G in one complaint. # and C sued G in one complaint, / and C sued G in one complaint, or better still, they )oined in one complaint against G. Q. Can they validly do that' A. Hes, they have each a separate cause of action against G. Under the rule on )oinder of parties, all of them can )oin in only one complaint. Q. (hy' A. $ight to relief e+ists in favor of all of them, #, / and C. Q. (hat is the basis of their right to relief of # against G' A. %he basis of the right of # against G is the negligent act of G in driving. Q. (hat is the basis of the right of / against G' A. %he same. %he negligent act of G. Q. (hat is the basis of the right of relief of C against G' A. %he same, the negligent act of G in driving. f these were to be tried separately, if the parties #, / and C filed separately the case, there will be only one issue that the court will resolve, which is common to all of them. So they can )oin as parties. %his is the rule on permissive )oinder of parties. Q. Can #, / and C be required or compelled to )oin in one complaint' A. Ao. whether they will )oin or they will not )oin is a matter of them alone to decide. %hey cannot be forced to )oin. Rene NotesK Co31ulsory *oinder<in the case of: -. indispensable parties 1. necessary parties X %he non<)oinder of an indispensable or a necessary party is A&% by itself ipso<fato a ground for the dismissal of an action. the court shall order )oinder non<compliance<ground for dismissal X f the court does not order the )oinder of an indispensable party, the validity of the )udgment may be questioned on appeal or certiorari.

Per3issive *oinder<parties can either be )oined in a single complaint or may themselves maintained or be sued in separate suits. %his rule also applies to counterclaims. Requisites o: Pers3issive =oinder o: 1arties. -. right to relief arises out of the same transactions or series of transactions! 1. there is a question of law or fact common to all the plaintiffs or defendants! and 2. such )oinder is not otherwise prescribed by the provisions of the $ules on )urisdiction and venue. %eries o: Trans<ations<separate dealings with the parties but all of which dealings are directly connected with the same type of sub)ect matter of the suit. Parties to an A<tion Q. (ho can be parties to an action' A. &nly natural persons or persons with )udicial personality or entities authori*ed by law. Q. s it enough that a person is a natural person or )uridical person to entitle him to sue and be sued' A. Ao. t is necessary that the party, natural or )udicial be li3ewise a party in interest. Where the per&on :ho &ue& i& not the real party in intere&t, or :here the party &ued i& not the real party in intere&t, the co(plaint or &uit cannot +e (aintained* Q. (ho is considered a real party in interest' A. t is defined in Sec. 1 $ule 2 %e<. 5 Rule 6 A real party in intere&t i& the party :ho &tand& to +e +enefited or in?ured +y the ?udg(ent in the &uit* # real party in interest is the one who is benefited by the )udgment. Ee is one who may be pre)udiced by the )udgment or it is he who may avail of the )udgment. EIa31leK So, if #, a tenant of / sues to recover his land from C. Q. s # the real party in interest' A. Ao. Ee is not, because whatever )udgment that he may be rendered in this case will not at all affect the real owner. # is not a real party in interest. Supposing # is claiming ownership of a lot and he sues C, the tenant of /, to recover the ownership of the lot. Q. s C the real party in interest' A. Ao, because whatever )udgment that may be rendered in favor of # cannot bind the owner /. C is not the real party in interest. Q. s it enough that a party be a natural or )udicial and a real party in interest to be entitled to sue or be sued' A. Ao. %he party must li3ewise have the legal capacity to sue. 9eaning, he has the representation that he claims to have. So if the person does not have the capacity which he alleges he has, he cannot sue or he cannot be sued.

The&e are the re7uire1ents for suing or "eing sued: -. Aatural person or )udicial person! 1. Cntity authori*ed by law to sue and be sued! 2. 9ust be the real party in interest! and =. 9ust have the capacity to sue or be sued.

Q. (hat are the classes of parties to a suit' A. (e have the: -. ndispensable Parties! 1. Aecessary Parties. Q. A. (hat is the distinction between the two' n the case of an indi&pen&a+le party, he must always be impleaded because without his being impleaded as a party, whether a plaintiff or defendant, the sub)ect matter of the suit cannot be terminated. Ee must always be there because without him, whatever )udgment rendered do not terminate the sub)ect matter of the suit.

EIa31leK F!ndis1ensa/le Party. %estator G was survived by three ,2. children #, / and C. # sued / alone for a partition of alleging in fact the court declared #, / and C the owners of the estate and ordered the estate to be divided into three equal parts. So # and / agreed on how the estate be divided. %hey agreed that the estate shall be divided into three equal parts as follows: A B C

Q. A.

s the )udgment in the partition case binding on C' Ao, it is not binding. (hen # and / showed C the -O2 portion allotted to him, C said I do not li3e that, li3e this part.J IAo, this is

mine.J Q. (hat can C now do' A. C can file a case for the partition of the same estate as3ing that this be divided into three ,2. equal parts. /ut # and / said, I t is pointless, there is already a declaration that this property be divided into 2 and it was already divided into three ,2.. (hat else do you li3e' Q. s the reasoning of # and / correct' A. Ao, it is not correct. t is true that there was a division. /ut C does not li3e his part. Q. Can C be compelled to accept his part' A. Ao, because he was not a party to the case. Ee is not bound by the )udgment. (hy' /ecause he has a right to be heard when # and / divided this property in the manner they want. #s a co<owner he has the right to be heard on how the division should be made. Since, he was not heard, he can file a case. %his is what we meant when we say that Ian indi&pen&a+le party ought to +e i(pleaded either a& a plaintiff or defendant in order to ter(inate the &u+?ect of the ca&e*D So, you see here, the first case did not terminate the question. t is only when all the parties #, / and C have been impleaded in the case may it terminate. So, when an indispensable party is not impleaded, in violation of that order of the court, the complaint may be dismissed. Q. (ho is the ne<essary 1arty' A. # necessary party is one who ought to be impleaded in order to accord complete relief to all the parties or in order that the claim respecting the sub)ect matter of the case can be fully ad)udicated, nevertheless, his absence from the court as a plaintiff or a defendant does not prevent the case from being settled insofar as the parties thereto are concerned. f a case is filed and the necessary party is omitted, the case filed can be terminated. /ut only partially. /ut if this omitted party could have been impleaded, the sub)ect matter of the case would be fully ad)udicated.

E+AMP EK # is the creditor of / and C based in the promissory note signed by / and C for P-9. %he liability of / and C are merely )oint not solidary. # sued / only. Ee did not sue C because at that time when the case was filed C was no longer in the Philippines. Ee for left abroad. Q. Can this case between # and / be finally settled' A. Hes. Cven without C. /ut you will 3now that the better )udgment will be rendered in favor of # will cover only the part of / in the P-9. So the court will decide the case awarding # only P8>>,>>>. %he claim of # against C remain pending, so that where C is already within the )urisdiction of the court, # can file a case against him to recover from him his share in the P-9. C here is merely a necessary party because even without him, this claim of # against / can be settled. n order, however, to settle the entire P-9, if C was with the )urisdiction of the court at the time when the complaint was filed, # should have filed a complaint against both / and C. Q. (hat will be the effect of filing by # of his claim against / and C at the same time' A. Eis claim of P-9 will be entirely settled in only one procedure. (hereas, in alternative form, the case will be settled insofar as the parties are concerned. %hat is why, when a party is a necessary party, but he is not impleaded, the reason why he is not impleaded should be stated in the complaint. Q. (hat for is the need to state why C was not impleaded' A. So that the court could determine whether the reason for the non<inclusion of C is valid or not. Should the court find the reason why C was not impleaded to benefit the merit, the court will now order # to amend his complaint and implead C. Should # fail to comply in the order of the court. Q. (hat is the effect of such non<compliance on the right of # to recover from the claim filed' #. Such failure on the part of # to comply operates as a waiver of his claim against C, so that should # eventually file a case against C, C can file a motion to dismiss the complaint on the ground of Iwaiver of the claim of # against C on the failure of # to implead C in violation of the order of the court.J

Rene NotesK 18 s1ouses as 1arties ".R. < spouses sued )ointly EI<e1tions: -. #bandons or fails to comply with marital obligations 1. Spouse disposes e+clusive property 2. $egime of complete separation of property 18 <lass suit Requisites o: a <lassMre1resentative suit -. sub)ect matter of the controversy is one of the common or general interest to many persons! 1. persons affected are so numerous that it is impracticable to bring them all before the court! 2. parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of the concerned. Con<e1t o: Alternative De:endants Q. (hen may a party plaintiff sue defendants in the alternative' A. %he rule is this: # plaintiff may have the right but he is not certain or sure against whom that right should be asserted. Ee 3nows he has the right. %here are two or more persons who may be liable to him in connection with his right. /ut he does not 3now who of them is liable under this rule, he is entitled to sue all these persons in the alternative. EIa31le: # bought a machine from US. %he carrier G brought this machine to the Phils. for delivery to #. this machine did not reach #. Ee does not 3now who has custody of this machine at the time it was lost. %he fact is, there was supposed to be an arrastre operator who should have ta3en upon its being unloaded in the port of 9anila. (as it lost

while this machine was in the custody of the arrestre' Ee does not 3now, but he has the right to recover the value of the machine. /ut who of them is responsible, he does not 3now. Q. (hat can # do' A. # can sue G and H ,arrestre. at the same time. f it is not G who is liable, it must be H. f H is not liable, it must be G. %his is the concept of alternative defendants. Rene notesK &nknown !dentity or Na3e o: De:endant N Service of summons is by publication Requisites: -. there is a defendant 1. his identity or name is un3nown 2. fictitious name may be used because of ignorance of defendant"s true name and such ignorance is alleged in the complaint =. identifying description may be used: sued as un3nown owner, heir, devisee, or other designation 8. amendment to a pleading when identity or true name is discovered 7. defendant is the defendant being sued, not a mere additional defendant Deat; o: a Party Duty o: <ounsel, inform court within 2> days X %he death of a client will require his substitution by his legal representative to be ordered by the court wherein the case is pending, or even the appointment of an e+ecutor or administrator, but this time, by a court of probate )urisdiction. n the case of incapacity or incompetency of the party, this fact will merely entail the appointment of a guardian ad litem by the court trying the case upon being informed thereof by counsel of the parties, the parties themselves, or other reliable sources. X Ao summons is required to be served on the substituted defendants. nstead, the order of substitution shall be served upon the parties substituted in the action, otherwise, the court does not acquire )urisdiction over the substitute party. X %he continuance of a proceeding when a party dies without a valid substitution amounted to lac3 of )urisdiction and that the need of substitution is base on the right of a party to due process. E&(CDC$, if there is no notice of death of party and the court has no 3nowledge thereof, the proceedings are not set aside. X f there is failure to notify the fact of death: the case may continue and the proceedings will be held valid, and )udgment will bind the successors in interest. X %he court cannot compel the lawyer to continue with the trial after the lawyer has notified the court of the death of his client. &therwise, the entire proceeding is null and void! the court would have no )urisdiction over the estate, the heirs and the e+ecutors or administrators. Trans:er o: !nterest X Substitution of parties is not mandatory. Unless the substitution by or the )oinder of the transferee is required by the court, failure to do so does not w arrant the dismissal of the case. X # transferee pendente lite is a proper and not an indispensable party. %e<. 5B Rule 6 When the action i& for recovery of (oney ari&ing fro( contract, eCpre&& or i(plied, and the defendant die& +efore entry of final ?udg(ent in the court in :hich the action :a& pending at the ti(e of &uch death, it &hall not +e di&(i&&ed +ut &hall in&tead +e allo:ed to continue until entry of final ?udg(ent* A favora+le ?udg(ent o+tained +y the plaintiff therein &hall +e enforced in the (anner e&pecially provided in the&e rule& for pro&ecuting clai(& again&t the e&tate of the decea&ed per&on* %his is a situation where a contract involving money was entered into: %his contract gave rise to the filing of a complaint against the debtor. (hen the case is pending against the debtor, the debtor dies. Q. (hat now will be the status of this case filed upon the death of the debtor, the case not having been determined with finality' Can it continue or must be dismissed' AK EIa31le:

# the creditor sued / to recover the loan, he e+tended. (hile this case was pending, / died. Under the old rule, upon the death of /, this case will be dismissed. Eow could # protect his right over his claim, if it was already dismissed in this case' Ee can now file his claim as an ordinary creditor in the proceeding, ,estate or intestate proceeding. for the settlement of estate of /. %his rule presuppose that the estate of / is under administration either in a testate proceeding or intestate proceeding. So under $# ;7 # should file his claim in this proceeding. So if there was a special proceeding under YSP 2= for the settlement of estate, then # must file his claim in this case. Q. s that so now' A. Ao. %he death of the debtor / does not e+tinguish the action. %his will continue. &f course with proper substitution of / by the administrator or e+ecutor if there is any. f there is none, by his heirs. %his case will continue litigation until finality. n the event # wins the case and the )udgment becomes final Q. Eow will # enforce his right as ad)udged by the court' A. Ee will file the case where the settlement of /"s estate is pending, his claim based on this )udgment. Q. Can the administrator or e+ecutor contest in that special proceeding this claim now of #' A. Ao, because it has already been settled by final )udgment in that civil case. %his is the innovation under the new rules. RENE NOTE%K A<tion on Contra<tual Money Clai3s RequisitesK -. %he action must primarily be for recovery of money, debt, or interest thereon, and not where the money sought therein is merely incidental thereto. 1. %he claim sub)ect of the action, arose from a contract, e+press or implied, entered into by the decedent in his lifetime or the liability for which had been assumed by or is imputable to him. X f the defendant dies before entering a final )udgment in the court where it was pending at that time, the action shall not be dismissed but shall be allowed to continue until entry of final )udgment thereon. X &nce a final )udgment is entered against the estate of the deceased it shall be enforced as a money claim without the need of proving the same. !ndi0ent Party X %he amount of doc3et and other lawful fees shall be a lien on any favorable )udgment upon the indigent party. Rule ?K -enue o: A<tions %he rules on venue are now simplified. (hy' /ecause the rules in venue li3ewise involve inferior court and under the $%C. Bor purposes of venue, actions may either be real or personal. Q. (hat are the rules on venue involving real propert%' A. (hen a suit involves title to, possession of or interest in real property, the venue of the action lie in the proper court of the place where the real or a part of the real property is located. %his is true in cases involving title to, possession of or interest in, real property. !n forci+le entry ca&e&, however, the venue of the action is the inferior court of the place where real property or part of the real property is located. ,9%C. %a3e note that when it comes to the venue of the property suits involving title to, possession of or interest in, real property, the venue is the proper court of the place where the real property is located. /ut when it comes to forcible entry, the court where the action must be filed is specified and that is the inferior court. t does not say proper court. Q. (hy the difference in the case involving title to, possession of or interest in real property, venue is the proper court' A. /ecause under the new law, even the inferior court have )urisdiction cases depending on the value of the property. (here the value of the property involved in the reindivicacion cases does not e+ceed P1>,>>>.>>, in area& out&ide 0etro 0anila, that action for reindivicacion is tried by the inferior ,9%C. not the regional trial court.

(here the value of the property e+ceeds P1>,>>>.>>, the action for reindivicacion lands with the $%C. !n 0etro 0anila where the action is for reindivicacion for instance, and the value of the property does not e+ceed P8>,>>>.>>, the venue is the inferior court. %his is the reason why the law does not specify what particular court the case must filed when it involves title to, possession of or interest in real properties. /ut when it comes to forcible entry, the rule is specific, Ionly on 9%C of the place where the property or any part of the property is located.J >n case of personal actions, the venue is the residence of the plaintiff or any of the principal plaintiffs or the residence of the defendant or any of the residence of the principal defendants at the option of the plaintiff. @o:ever, where the defendant is a non<resident, the venue may also be the place where he can be found. n this last case, the venue could not be the residence of the non<resident defendant for a simple reason that, a non< resident defendant does not reside in the Phils. ,as the term suggested, Inon<residentJ.. %hat is why you cannot sue him in a place where he is not a resident, but he may be found in the Phils. So, it is that place where he may be found, that may be one of the venue. EIa31le: f # file a complaint against /, for recovery of money and # is a resident of Sulu and / is from /atanes. (hether the case is tried by the inferior court or by $%C, # can file action either in Sulu or /atanes at his option. Q. /ut if / is not a resident of the Philippines, but came to the Philippines for a vacation and could be found in /ulan, Sorsogon, where may #, who is a resident of Sulu file the case' A. Ee may file the case in Sulu or in /ulan, Sorsogon. Where real property i& located partly in one place and partly in another, whether the action involves forcible entry or detainer, or an action for reindivicacion its venue should be any of these places where property is located. EIa31leK # vs. / for forcible entry or reindivicacion, the property was located in 9anila in part, Caloocan in part, S.C. in part. So # can file the case in 9anila, Caloocan, in S.C. EIa31le: # vs. /, an action for declaration of nullity of the marraige of # and /. / the husband is a non<resident defendant of the Philippines whose permanent address is U.S.#., on the other hand, the wife is a resident of 9anila. Q. (hat will be the venue of this action' A. 9anila. EIa31leK %he action between # and / involved let us say, the recovery of a lot which # claims as his but which / claims is his. %his lot is partly located in Pampanga, /ataan or /atangas. (hile # is a resident of 9anila. %he value of this property is P-6,666.66. Q. (hat court has )urisdiction and a court of what place will be the venue' A. 9%C of Pampanga, or of /atanes or of /ataan. EIa31le: # sued /, a non<resident of the Philippines. /ut at the time the action was filed, / was found in %awi<%awi. # is a resident of /atanes. / is a permanent resident U.S. Q. f this action is filed, what will be the venue' A. %he venue is /atanes, or %awi<%awi at the election of the plaintiff. Where the action involve& title to, po&&e&&ion of or intere&t in real property, the action may be filed in the appropriate or proper court of the place where the property or part of the property is located, e+cept where the action is one for forcible entry, in which case, the action may be filed in the 9%C of the place where the property or part of the property is located. !f the action i& per&onal, the venue of the action may be the residence of the plaintiff or it there are two or more plaintiffs, the residence of the plaintiff or the residence of the defendant or in case there are two or more defendants, the residence of the principal defendant, at the option of the plaintiff. Where the defendant i& a non3re&ident defendant, +ut i& found in the 'hilippine&, and the action i& per&onal , the venue of the action may either be the residence of the plaintiff or the place where the defendant is found.

n our e+ample, the action was one for money, against the defendant / who is a resident of U.S. /ut at the time the action was filed, he was found in %awi<%awi, the action by # can be filed in /atanes, #"s residence or in %awi<%awi at the option of #. Q. (here the sub)ect matter of a case is real property, is the rule that the venue of the action involving it should be the place where the property is located or where any part of the property is located absolute' So that in all cases, this rule must be followed' A. t is not absolute. Q. %he action involves possession of, interest or in title to real property but the action is not forcible entry. 9ust the venue of this action be the place where the property is located or where any part thereof is located or may there be a case where what is located or may there be a case where what is involved in a suit is a real property and yet the venue need not necessarily be the place where that property is found or where any part thereof is found. EIa31leK # and / are litigating who has the better right to timber concession located in Cotabato. # is a resident of 9anila and / of /atangas. %he action by # against / was filed with the Secretary of FCA$. %he Secretary awarded the right to the timber land to #. / now contested the action of the Secretary in awarding the right to #. / sued as well as the Secretary of FCA$. %his action was filed by / in his residence which is /atangas $%C. %he Secretary now files a motion to dismiss on the ground that the venue is improperly laid. %he venue should be Cotabato. f you are the )udge, what will your correct ruling on the motion to dismiss filed by the Secretary of FCA$' !ssueK (hat is involved here is a motion to dismiss filed by the Secretary, he said Iany action contesting my decision should be filed in the court of the place where the property is located.J ISince the property is located in Cotabato, the venue should be Cotabato, not the residence of / in /atangas.J EIa31le: %he PEEC awarded the lot in S.C. to a resident of /acolod City. #fter # paid so many installments on their lot, the PEEC unilaterally cancelled this award and awarded the same lot to /. %o annul that order of PEEC canceling the award to #, # now sued PEEC which has its office in S.C. and /, a resident of 9anila in the $%C of /acolod City. %he prayer of # is for the cancellation of the resolution of PEEC canceling the prior award to # and awarding the same lot to /. PEEC and / now file a motion to dismiss on the ground of improper venue. %hey contended that the proper venue of the action is S.C., the location of the property, not /acolod City, the resident of plaintiff #. you are the )udge, what will be your correct resolution to the motion' EIa31leK # and / agreed in -66> that any action between them involving this lot in %awi<%awi, be filed in /atanes. # being a resident of 9anila and / of /ulan, Sorsogon. %he agreement was oral. Bor a violation of Borcible Cntry, # now sued / in /atanes although, we say, that the lot is in %awi<%awi. / now filed a motion to dismiss, on the ground of improper venue. Ee said that the action should be filed in the inferior court of %awi<%awi, not in /atanes. Q. Hou are the )udge, what will be the correct ruling on the motion to dismiss' A. Feny the motion to dismiss under Sec. = ,b. $ule =, the rule on venue shall not apply where parties have not validly agreed in writing before the filing of the action on the e+clusive venue thereof. n the above case, the agreement of # and / was an oral agreement. %herefore the agreement is not enforceable. -. %he agreement between # and / is Ithat any action arising from this lot located in %awi<%awi must be filed only in 9%C of /atanes.J # now sued / in /atanes. / now filed a motion to dismiss on the ground of improper venue being the property located in %awi<%awi and therefore %awi<%awi should be the venue.J $ule on themotion to dismiss filed by /. 1. #greement in writing between # and / provided as follows:: I#ny action arising from this land in %awM%awi, may be filed in /atanes.J Contrary to this writing, # filed the action in %awa<%awi. / now filed a motion to dismiss on the ground that the venue is improperly laid because the agreement called for the venue to be in /atanes. $ule on the motion.

A. Feny the motion to dismiss because the agreement used the word ImayJ. Under the rule, the agreement to be valid must be one which is in writing and the agreement on the venue must be Ie+clusive venue.J (here the action involving real property concerns the title to the property, or possession of real property or interest in real property, the venue is the place where the property is located or where a part of the property is located. %herefore where the action involving real property does not concern title to the property or it does not concern the possession of real property or does not concern an interest in real property, the rule that the action should be filed in the place where the property is located does not apply. %here are, therefore, cases when what is involve is real property and yet the venue of the action need not be the place where the property or a part of the property is located. EIa31leK %he action is filed by / against # and Secretary of FCA$. %he action filed by / here is an action for certiorari against the Secretary of FCA$ and #. %he sub)ect matter although involving real property is actually the )udgment of the Secretary. %his is not an action involving title to, possession or interest in real property. %he action in effect is a personal action. So venue would be the residence of plaintiff / or the residence of the Secretary, not Cotabato, the place where the lot is located. n the case of the annulment of the award made by the PEEC, the venue need not necessarily be S.C. where the property is located. Since the action was filed in S.C. where the defendant PEEC reside. So the motion to dismiss filed in /acolod City is not proper because /acolod City could be a venue. Unli3e )urisdiction which cannot be the sub)ect of stipulation, venue can be the sub)ect of stipulation and therefore the parties can agree that the venue of a particular action as filed and provided the agreement provides for an e+clusive venue. So if the property is located in %wi<%awi, but # and / agreed before any suit is filed that the venue of the action arising therefrom be in /atanes and this agreement was in writing before the action was filed, the action can be filed where the property is located or in /atanes. (hy' /ecause the wording of the agreement, /atanes would merely be an additional venue, the venue agreement controls. So in our e+ample, # and / agreed in writing before any suit arise, that any action involving this property located in %awi<%awi can be filed IonlyJ in /atanes. n violation of that written agreement, # filed suit in %awi<%awi where the property is located. / now files a motion to dismiss for improper venue. s the motion to dismiss proper' Hes, because although the property is located in %awi<%awi, the agreement called for an e+clusive venue, i.e.Jonly /atanes.J %he motion to dismiss of / here should be granted. %he rules on venue mentioned in $ule = do not apply in certain cases, in addition to these cases that i.e. an agreement in writing. Q. s there another situation when the rule on venue does not apply other than the ground that there is an agreement is writing providing for a particular venue' %he $ules on venue do not apply when there is an agreement in writing providing for an e+clusive venue. n addition to this, is there another situation where the rules on venue mentioned in $ule = does apply because in this case, we do not file the action, for instance, in the place where the property or a part of the property is located or in the place where the plaintiff or the defendant is residing at the option of the plaintiff. s there such a situation' EIa31leK # published a libel in 9anila. / is a resident of locos Aorte. Eowever, # was a resident of 9anila. People vs. # filed in 9anila. /, subsequently filed in the $%C of locos Aorte, his residence, an action for damages against # in manila. # now filed a motion to dismiss this action in locos Aorte. Eis ground is that the venue of the action should not be in locos Aorte, it should be in 9anila where the libel cases is filed but / countered this argument, the recovery of damages is a personal action, therefore, under $ule =, sec 1 ,/. has the option to file any action either in my residence or the residence of the defendant # at my ,/. option. 9y option is to file my action in locos Aorte. So, the motion to dismiss is not proper $ule on the merits of the motion to dismiss Ans. The rule& on venue found in Rule = do not apply in t:o ca&e&: -. (hen the parties agreed in writing before any action is filed the venue of the action be in a particular place. 9eaning, when the agreement calls for an e+clusive venue 1. where the law provides for a specific venue. n the first case, where the agreement in writing does not provide for an e+clusive venue, but merely an additional venue, the action may be filed in the proper venue according to $ule =, or in the venue stated in the agreement. f the written agreement on venue provides for a specific and e+clusive venue, only the venue specified in the agreement can be the venue.

n the second case, the law itself provides, for a specific venue, then it should be that venue provided for by law. %he libel law provides that where a criminal action is filed in a particular venue, the civil action for damages arising form that libel should li3ewise be filed in the same court where the criminal case is pending. n our e+ample, the libel case was filed in 9anila. #ny action for damages arising form the libel filed must be filed in the place where the libel case was filed. #lthough /, in this case, is a resident of locos Aorte, he cannot file the action in locos Aorte because the criminal case was filed in 9anila. RENE NOTE%K -enue o: A<tions Real a<tions < place where real property located Personal a<tions -. residence of the plaintiff 1. residence of the defendant X Choice of the plaintiff Real a<tions -. action for the annulment or recision of a sale and the return of realty 1. to compel the vendor to accept payment of the purchased piece of land 2. to compel the vendor to deliver the certificate of title of the land Personal a<tions -. action to recover the purchased price of the land 1. an action to compel the mortgagee to accept payment and for the consequent cancellation of a real estate mortgage 2. action to annul the cancellation of award of land in favor of the plaintiff Requisites :or venue to /e eI<lusiveK -. # valid written agreement 1. C+ecuted by the parties before the filing of the action! and 2. #greement to the e+clusive nature of the venue. X n the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rule. );en rules on venue NOT a11li<a/le -. when parties agreed in writing for an e+clusive venue before any action is filed 1. where the law provides for e+clusive venue e+. Libel i+el a: < where a criminal action is filed in a particular venue, the civil action for damages arising from that libel should li3ewise be filed in the S#9C C&U$% where the criminal case is pending. Means o: )aivin0 venueK >FO# AR# -%# A -. failure to ob)ect by means of motion to dismiss 1. affirmative relief sought in the court where the case is filed 2. voluntary submission to the court where the case is filed =. laches !F PROPERT$ !% OCATED AT T'E BO&NDAR!E% OF T)O P ACE% : file one case in either place at the option of the plaintiff !F CA%E !N-O -E% T)O PROPERT!E% OCATED !N T)O D!FFERENT P ACE%K a. if the properties are the ob)ect of the same transaction, file in any of the two places. b. if they are the sub)ects of two distinct transactions, separate actions should be filed in each place. )'EN A TERNAT!-E RE !EF !% %O&"'T P venue would depend on the primary ob)ect of the action.

-EN&E -. place where the action is instituted 1. may be waived 2. procedural =. may be changed by the written agreement of the parties

*&R!%D!CT!ON -. power of the court to hear and decide a case 1. )urisdiction over the sub)ect matter and over the nature of the action is conferred by law and cannot be waived 2. substantive =. cannot be the sub)ect of the agreement of the parties

Rule 7K Pleadin0s Q. (hat are pleadings' (hat are the 3inds of pleadings' A. %e<.1 Rule 7 'leading& are :ritten &tate(ent& of the re&pective clai(& and defen&e& of the partie& &u+(itted to the court for appropriate ?udg(ent*

-. 1. 2. =. 8.

%e<.5 Rule 7 FPleadin0s Allowed. complaint %he claims of a party are asserted in a: counterclaim cross<claim third ,fourth, etc.. party complaint, or complaint<in<intervention

%he defenses of a party are alleged in the answer to the pleading asserting a claim against him. #n answer may be responded to by a reply. RENE NOTE%: 5 kinds o: de:enses t;at 3ay /e set :ort; in t;e answer #. AC@#% DC FCBCASCS a. Specific denials b. nsufficient denial or denial amounting to admissions -. @eneral 1. Fenial in the form of a negative pregnant /. #ffirmative Fefenses in the Aature of Confession or #voidance X Unli3e the Complaint which alleges only ultimate facts, the #nswer may cite legal provisions relied upon for defense Q. A. (hat is the compulsory counterclaim' %e<. 4 Rule 7 A co1pulsor% counterclai1 i& one :hich, +eing cogni2a+le +y the regular court& of ?u&tice, ari&e& out or i& connected :ith the tran&action or occurrence con&tituting the &u+?ect (atter of the oppo&ing partyE& clai( and doe& not reAuire for it& ad?udication, the pre&ence of third partie& of :ho( the court cannot acAuire ?uri&diction* Such a counterclai( (u&t +e :ith ?uri&diction of the court +oth a& to the a(ount and the nature thereof, eCcept that in an original action +efore the Regional Trial Court the counterclai( (ay +e con&idered co(pul&ory regardle&& of the a(ount* Q. (hat is a counterclaim' A. %e<. 7 Rule 7 A counterclai( i& any clai( :hich a defending party (ay have again&t an oppo&ing party. EIa31leK f # filed a case against /. #ny claim by / against # is a counterclaim. t is a claim by a party defending himself against a party who files a case against him.

-. 1.

Two 9!ND% o: <ounter<lai3s: Compulsory Counterclaim Permissive Counterclaim

%hese two are different for in their component elements and the effect of their not being pleaded. n the language of the rule, a <ounter<lai3 is <o31ulsory when it is one which is cogni*able by the court and arises out or is connected with the transaction or series of transactions which constitutes the basis of the action against him and does not require for its ad)udication the presence of the third person over whom the court cannot acquire )urisdiction. Eowever, where the counterclaim is a money claim and the court in which the case is pending is the $egional %rial Court, the money claim irrespective of the amount is a compulsory counterclaim. &n the other hand, a 1er3issive <ounter<lai3 is one which does not arise out of or is connected with the transaction which is the basis of the sub)ect of the action. EIa31leK # files an action against / for collection for sum of money. /, however, has an action against # for recovery of lot. %his action of / against # for recovery of a lot is a permissive counterclaim. (hy' /ecause it is not in any way related. Q. (hy is this permissive' A. /ecause if / wants to he can file his counterclaim against # in the same action. f he does not file it as a claim, this case filed against him. Q. Can he file it separately, so that if he can file it separately there are now two cases, # vs. / for recovery of lot. A. Hes. Q. Supposing he ,/. does not file his counterclaim in this case against him, and subsequently, / files a separate action, can # now file an action to dismiss a second action on the ground that this action of / against # should not be pleaded as a claim counter in nature in the civil case' A. Ao, because this is a permissive counterclaim. / can file if he wants in to this main action, he may not file if he does not want to file. Q. );en is <ounter<lai3 <o31ulsoryO A. -. # compulsory counterclaim is one which is cogni*able by the court of )ustice. 1. # counterclaim should be connected with the transaction which constitutes the basis of the action of the plaintiff against the defendant. 2. %his counterclaim does not require for its ad)udication the presence of a third person over whom the court does not require )urisdiction. =. %his counterclaim is within the )urisdiction of the court e+cept that where the counterclaim is a money claim and the action is filed in the $%C irrespective of the amount whether within or not within the )urisdiction of the court, the counterclaim is compulsory. EIa31leK %his is an action of # against / for the recovery of a lot. %he counterclaim of / against # is for the recovery of money which represents the unpaid wages of / payable by # and the wages being the result of a contract of employer< employee relationship. Q. s this money claim of / arising from the employer<employee relationship is not cogni*able by the court' A. Ao, because the money claimed arising from the employer<employee relationship is not cogni*able by the courts of )ustice* Thi& i& cogni2a+le +y the D- E a+or Ar+iter or the N RC* So, if # files his complaint and / pleads his money claim arising from the employer<employee relationship, that counterclaim is not a compulsory counterclaim. t cannot be filed in this case. %he counterclaim must be one which arises from the transaction which is the basis of the action of the plaintiff against the defendant. EIa31leK %he action of / is for recovery of lot. %he claim of / is for money arising from a contract of loan being / the lender and # the borrower. Should / interpose as a counterclaim this action for recovery of money here. Q. Can that be validly done' A. &n the assumption that all the other elements are present, this is allowed.

Supposing, this is the 9%C, the action is for reindivicacion because the value of the property is only P1>>,>>>. %his an action filed outside 9anila. Q. s this counterclaim here allowed to be filed by / as a counterclaim in this case' A. Hes, because this is a claim that is compulsory. /ut supposing / does not file a separate case against # for a recovery of money such that if this is done, there will be now two ,1. actions Q. Can # validly file a motion to dismiss this complaint on the ground that since this is a counterclaim, that should have been impleaded by / in the main case' A. Ao, because this amount does not arise from the transaction constituting the claim by # against /, this is a recovery of money. %his is a permissive counterclaim the fact that it is not pleaded in the answer in the main case, is not a ground to dismiss it. n this case, /"s counterclaim is not compulsory, but merely permissive. EIa31leK %he counterclaim of / consists of P1>>,>>>.>> but the counterclaim of / is against # and C over this amount is solidary. / does not plead in his answer in the main case claim and after / files his separate action against # and C to recover his P1>>,>>>.>>. # filed motion to dismiss on the ground that this should have been impleaded in the main case because it arose from this main case. Q. s the motion to dismiss proper' A. Ao, because the presence of C is required in their litigation on this P1>>,>>>.>> and C is in U.S. and the Court does not acquire )urisdiction over him. So, this counterclaim although arising from that action is merely a permissive counterclaim not compulsory counterclaim because it requires for its ad)udication the presence of a third person over whom the court does not acquire )urisdiction. %his is an action in the 9%C. %he counterclaim of / arising from this, let"s say, the value of the improvements which / introduced in this lot is P1>-,>>>.>>. Ee does not plead his counterclaim in this action. nstead, he files a separate action on the recovery of P1>-,>>>.>>. Aow he files a motion to dismiss on the ground that this counterclaim being connected in the claim of # against / should be pleaded. Q. s the motion to dismiss proper' A. Ao, because the amount claimed though arising from the action e+ceeds the )urisdiction of the 9%C. %he )urisdiction being only up to P1>>,>>>.>>. So, it is not. Supposing, however, that this case is filed in the $%C. #nd on the assumption that the counterclaim of / against # arises out of this action of # against /, and the counterclaim is only P8>,>>>.>> Q. s this counterclaim compulsory or permissive' A. Compulsory. n the $%C, as long as the counterclaim is money, irrespective of the amount, it is always compulsory. Let us now ta3e a case where the counterclaim is compulsory. EIa31leK Co31ulsory Counter<lai3 %his is an action for the recovery of a lot. %he counterclaim of / is for recovery of the value of the property improvements which / introduced. Q. s it money claim by nature cogni*able by a court whether 9%C or $%C' A. Hes. Q. s it connected with the case filed by # against / for recovery of the land' A. Hes, because the amount being claimed represents the value of the improvements introduced by / in this lot, which is the sub)ect of the main case. So, it is connected.

Q. Foes this action for recovery requires the presence of C, a third person over whom the court cannot acquire )urisdiction' A. Ao. Q. s an action for recovery of a P1>-,>>>.>> one with the )urisdiction of the $%C' A. Hes. So, in all these cases therefore, the elements of a compulsory counterclaim are present. Q. (hat is the rule' A. When a counterclai( i& co(pul&ory it (u&t +e pleaded in the an&:er, other:i&e, that counterclai( i& +arred . EIa31leK n the e+ample that / sues to recover P1>-,>>>.>> representing the value of improvements introduced on the lot which is the sub)ect matter of the complaint of #. (hat / did was to institute separate action against # for recovery of the improvements. Ee did not plead this as a counterclaim in the action of #. # now files a motion to dismiss on the ground that, the counterclaim is a compulsory counterclaim, the fact that it not was pleaded in the main case, is a ground to dismiss it. Q. Hou are the )udge, what will be your correct ruling on this motion of # to dismiss the case' A. @rant the motion, bec. a compulsory counterclaim not pleaded in the answer is considered barred. RENE NOTE%K Rules on Counter<lai3 -. # counterclaim before the 9%C must be within the )urisdiction of said court, both as to the amount and nature thereof. 1. n an original action before the $%C, a counterclaim may be considered compulsory regardless of the amount. 2. f a counterclaim if filed in the 9%C in e+cess of its )urisdictional amount, the e+cess is considered waived. =. %he remedy where a counterclaim is beyond the )urisdiction of the 9%C is to set of the claims and file a separate action to collect the balance. COMP& %OR$ CO&NTERC A!M ,-. one of which arises out of or is necessarily connected with the transaction or occurrence that is the sub)ect matter of the opposing party"s claim. ,1. t does not require for its ad)udication the presence of third parties of whom the court cannot acquire )urisdiction. ,2. t is barred if not set up in the action. ,=. Aeed not be answered! no default. PERM!%%!-E CO&NTERC A!M ,-. t does not arise out of nor is it necessarily connected with the sub)ect matter of the opposing party"s claim. ,1. t may require for its ad)udication the presence of third parties over whom the court cannot acquire )urisdiction. ,2. t is A&% barred even if not set up in the action. ,=. 9ust be answered, otherwise, the defendant can be declared in default.

Cross,<lai3 X filed against a co<party X always arises out of the transaction or occurrence that is the sub)ect matter either of the original action or of a counterclaim therein. X f it is not set up in the action, it is barred, e+cept when it is outside the )urisdiction of the court or if the court cannot acquire )urisdiction over third parties whose presence is necessary for the ad)udication of said cross<claim. X %he dismissal of the complaint carries with it the dismissal of a cross<claim which is purely defensive, but not a cross< claim see3ing affirmative relief. Re1ly E::e<t o: Failure to Re1lyK new facts that were alleged in the answers are deemed converted. Eence, the filing of the reply is optional e+cept for the denial of the genuineness and due e+ecution of an actionable document used as defense in the answer. T;ird F:ourt;# et<8 P 1arty <o31laint T'!RD,PART$ COMP A!NT CRO%%,C A!M

X see3s to recover form a non<litigant some relief in respect to the opposing party"s claim. X %hird party is not yet impleaded. T'!RD,PART$ COMP A!NT X brings into the action a third person who was not originally a party. X initiative is with the person already a party to the action.

X claim by a party against a co<party. X Cross<defendant is a co<party. COMP A!NT !N !NTER-ENT!ON Xsame X initiative is with a non<party who see3s to )oin the action.

X TE%T to deter3ine w;et;er t;e t;ird,1arty <o31laint is in res1e<t o: 1lainti::2s <lai3 : ,a. (here it arises out of the same transaction on which the plaintiff"s claim is based, or although arising out of another or different transaction, is connected with the plaintiff"s claim! ,b. (hether the third<party defendant would be liable to the plaintiff or to the defendant for all or party of the plaintiff"s claim against the original defendant! and ,c. (hether the third<party defendant may assert any defenses which the third<party plaintiff has or may have to the plaintiff"s claim. Rule in non,FOR&M %'OPP!N" F Under %EC. C R& E 4 8 The plaintiff or principal party &hall certify under oath in the co(plaint or other initiatory pleading a&&erting a clai( for relief, or in a &:orn certification anneCed thereto and &i(ultaneou&ly file there:ith: a. That he ha& not thereto co((enced any action or filed any clai( involving the &a(e i&&ue& in any court, tri+unal or Aua&i3?udicial agency and to the +e&t of hi& 1no:ledge, no &uch other action or clai( i& pending thereinB +. !f there i& &uch other pending action or clai(, a co(plete &tate(ent of the pre&ent &tatu& thereofB and c. !f he &hould thereafter learn the &a(e or &i(ilar action or clai( ha& +een filed or i& pending, he &hall report the fact :ithin five /5. day& therefro( in the court :herein hi& afore&aid co(plaint or initiatory pleading ha& +een filed <ailure to co(ply :ith the foregoing reAuire(ent& &hall not +e cura+le +y (ere a(end(ent of the co(plaint or other initiatory pleading +ut &hall cau&e for the di&(i&&al of the ca&e :ithout pre?udice, unle&& other:i&e provided, upon (otion and after hearing* The &u+(i&&ion of a fal&e certification or non3co(pliance :ith any of the underta1ing& therein &hall con&titute indirect conte(pt of court, :ithout pre?udice to the corre&ponding ad(ini&trative and cri(inal action&* !f the act& of the party or hi& coun&el clearly con&titute :illful and deli+erate foru( &hopping, the &a(e &hall +e ground for &u((ary di&(i&&al :ith pre?udice and &hall con&titute direct conte(pt, a& :ell a& a cau&e for ad(ini&trative &anction&* EIa31leK # filed an action against / for forcible entry of a particular lot. (hile this case was pending, # filed against / for reindivicacion involving the same lot. Q. s there a forum shopping on the part of #' A. Ao, the two cases are different. &ne is for forcible entry and the other for reindivicacion. EIa31le: # filed an action against / in the $%C for reindivicacion. /ranch - $%C of 9anila. n their action, # filed a petition for receivership. n /ranch of 9anila, # filed another action against / also for reindivicacion, for issuance of an in)unction. Q. s there forum shopping on the part of #' A. Ao, there is none because the two cases involves different issues. Q. (hat is forum shopping' A. Foru3 s;o11in0 takes two :or3s : -. (here a party files the same action involving the same issues either simultaneously or successively in more than one court. 1. (here a party files two or more actions in different courts, the other action filed in another court not being the result of an appeal or a petition for certiorari. Borum shopping is not allowed because this would be constituting to the )udicial process ma3ing moc3ery out of the rules. %his is the reason why whenever the party files a complaint or an initiatory pleading, he is required to accompany that complaint or initiatory pleading with a certificate. (e call the certificate the certificate of non3foru( &hopping*

%he certificate is &igned +y the plaintiff and if there are two or more plaintiffs and one is a principal plaintiff and the other is not, the certificate must be signed by the principal plaintiff. %he contents of the certificate, the plaintiff or in the proper case, the principal plaintiffs, certifies the following: a. %hat he has not previously filed in another court, tribunal, quasi<)udicial body or any other agency, the same action involving the same issues. b. %hat there is no pending action in any other court, tribunal, quasi<)udicial body or any other agency involving the same issues,and if there is pending action in any other court, the status of this action pending in the other tribunal agency or quasi<)udicial agaency! c. Should at the time he filed the pleading, he did not 3now of the e+istence of pending of another action involving the same issues in another tribunal court, agency or quasi<)udicial body, but that he subsequently learns that there is such a pending action involving the same issues, he underta3es to notify the court of that fact that there is a pending action, within five ,8. days from his receipt or acquisition of 3nowledge of the pendency of that action. %hese are the three ,2. matters certified by the plaintiff or the principal plaintiff. Q. (hat are the sanctions against violations of this certificate' A. Diolations rule may consist of the following: -. Bailure to attach to the initiatory pleading in the complaint the required certificate of non<forum shopping! 1. Statement in that certificate of non<forum shopping of a false certificate. %hese are the forms of violation, either you do not accompany or you accompanied the pleading but the certificate contains a falsehood. 2. %he violation consists in the failure of the party to comply with his underta3ing thereafter. Q. (hat is the underta3ing there' A. %o notify the court to the fact that another action is pending in another court. %herefore, the violations consists of three ,2., i.e. non<submission, submitting a false certificate and failure to comply with the underta3ing to inform the court of the pending case in another court. Q. (hat are the &anction&' A. %he failure to accompany the pleading with a certificate results in a dismissal without pre)udice of the complaint or initiatory pleading upon a prior motion and a prior hearing. n other words, where the pleading require a certificate is not attached at, the court may not motu proprio dismiss the complaint. %here should first be a hearing either a motion of the defendant. n this case, the court may dismiss it without pre)udice.

Q. s this all the sanction' A. Ao,%he counsel or the defendant may be held in contempt. #nd in the case of the lawyer, he may be administratively proceeded against: (hen there is a false certification, for instance, the certification stated that there was no pending case involving the same issue in another court, when the truth is there is. Q. (hat is the sanction' A. Aot only the pleading be dismissed, not only may the lawyer be proceeded against administratively, he may be proceeded against criminally. (here the forum<shopping is deliberate. Q. (hat are the sanctions' A. %he pleading will be dismissed with pre)udice and the offending lawyer may be held in direct contempt without pre)udice to administrative proceeding against. %a3e note that the party on whom the sanctions may be enforced is one who does not comply with this certificate of non<forum shopping, only in a case where the pleading which is not accompanied with the certificate is a complaint or an initiatory pleading. Where the pleading i& other than the co(plaint, or an initiatory pleading, the rule does not require that the pleading be accompanied by a certificate of non<forum shopping. Consequently, where the counterclaim is compulsory, it does not

have to be accompanied by a certificate of non<forum shopping. (here the counterclaim however, is permissive than the pleading must be accompanied by a certificate of non<forum shopping. n the case of UST v&* Fula G*R*4#8$%#> Augu&t #%, #$$> /8$= S 9>6.. I&nly a complaintJ or an initiatory pleading. # compulsory counterclaim is not an initiatory pleading. (hy' Q. (hen is a pleading initiatory' A. #s the term suggests, it is one, which is filed for the first time. (here a counterclaim is compulsory it is not an initiatory pleading. (hy' /ecause, you cannot file a compulsory counterclaim unless there is a first complaint. %hat is why a counterclaim is a reaction to the complaint. So, it is all again initiatory, because you cannot file an independent action involving a compulsory counterclaim. (here a counterclai( i& co(pul&ory, it must be pleaded in the answer, otherwise, it is barred if it is filed in a separate action. /ut when it comes to a per(i&&ive counterclai(, this is an initiatory pleading because it can be filed even without a prior complaint having been filed against a permissive counter claimant. So, in our e+ample for instance, if # filed a complaint against / for recovery of a lot / files a counterclaim for the value of the improvements over the land. So you call this a compulsory counterclaim. Q. Fo you have to accompany this compulsory counterclaim of / with a certificate of / with a certificate of non<forum shopping' A. Ao, because this compulsory counterclaim is not an initiatory pleading. t is a reaction. (ithout this complaint of #, there is no compulsory. /ut supposing this were a counterclaim for recovery of money which / loaned to # and / pleaded this claim of money as a counterclaim, you call this permissive counterclaim. Q. Fo you have to accompany this permissive counterclaim with a certificate of non<forum shopping' #. ,U.S.%. vs. Tula.. Hes. Q. State the rule on Alternative <auses o: a<tion or de:enses. A. Rule D %e<. 5 A party (ay &et forth t:o or (ore &tate(ent& of a clai( or defen&e alternatively or hypothetically, either in one cau&e of action or defen&e or in &eparate cau&e& of action or defen&e&* When t:o or (ore &tate(ent& are (ade in the alternative and one of the( if (ade independently :ould +e &ufficient, the pleading i& not (ade in&ufficient +y the in&ufficiency of one or (ore of the alternative &tate(ent&* -. (here a person has one claim or one defense he can state that one claim or one defense in two or more statements either hypothetically or in the alternative. 1. (here two or more statements of a claim or a defense are made and one is made independently of the other which is sufficient, the pleading is not made insufficient by the insufficiency of the other statement of the claim or the other defense. EIa31leK # vs. /, this is an action for recovery of a piece of land. %he defense of / is that he ,/. is the owner, because -. he bought the land from #! 1. he inherited the land from C! 2. this lot was donated to him by F! =. he acquired this by prescription. Q. Could this be validly alleged as /"s defense' A. #nalysis: %he defenses are inconsistent with each other. / can allege these as his defenses in his answer. %he statement of /"s defense that he is the owner is made up of = inconsistent statements. %he rule says that if the statement of the claim or defense is sufficient in itself, if made independently of the other, the pleading is not made insufficient by the insufficiency of the statement. RENE NOTE%K Fa<ts t;at 3ay /e averred 0enerallyK ,a. conditions precedent ,/U% there must still be an allegation that the specific condition precedent has been complied with, otherwise, it will be dismissed for failure to state cause of action! ,b. malice, intent, 3nowledge, or other condition of the mind ,c. )udgment of foreign courts, tribunals, boards, or officers ,no need to show )urisdiction.

Fa<ts t;at 3ust /e averred 1arti<ularlyK ,a. circumstances showing fraud or mista3e in all averments of fraud or mista3e ,b. capacity N T6o per1issi"le 6a%s of pleading an actiona"le docu1ent: ,a. /y setting forth the substance of such document in the pleading and attaching said thereto as an anne+ ,b. /y setting forth said document verbatim in the pleading N 5-ere t-e actiona"le docu1ent is properl% alleged, t-e failure to den% under oat- t-e sa1e results in@ -. %he implied admission of the genuineness and due e+ecution of said document e+cept: ,a. when the adverse party was not a party to the instrument! and ,b. when an order for the inspection of the document was not complied with. 1. %he document need not be formally offered in evidence. N Defenses t-at t-e opposing part% 1a% set up even after failure to den% under oat-@ ,a. mista3e! ,b. fraud! ,c. compromise! ,d. payment! ,e. prescription! ,f. want or illegality of consideration! or ,g. estoppel. N F<T t-e follo6ing defenses are 6aived@ ,a. forgery in the signature! ,b. want of authority of an agent or corporation! ,c. want of delivery! or ,d. the party charged signed the instrument in some other capacity. %PEC!F!C DEN!A T'REE )A$% OF MA9!N" A %PEC!F!C DEN!A K ,a. /H specifically denying each material allegation of the party and of the other party and whenever possible, setting forth the substance of the matters relied upon for such denial! ,b. past admissions or past denial! ,c. /y an allegation of lac3 of 3nowledge or information sufficient to form a belief as to the truth of the averment in the opposing party"s pleading. X # denial cannot be general, a general denial is regarded as admission on the facts stated in the complaint. X # negative defense must be a specific denial. &therwise, the denial will be deemed as an admission and entitles plaintiff to a )udgment on the pleadings Aver3ents in t;e <o31laint NOT dee3ed ad3itted even i: NOT s1e<i:i<ally deniedK ,a. #llegations as to the amount of damages ,unliquidated.! ,b. mmaterial allegations! ,c. ncorrect conclusions of fact! and Aver3ents dee3ed ad3itted i: not s1e<i:i<ally denied under oat;K ,a. #llegations as to usury in the complaint ,b. %he authenticity and due e+ecution of actionable documents thereto. Rule @K E::e<t o: Failure to Plead "eneral Rule: #ll of actions and defenses available at the time the pleading is filed, if not raised in the motion to dismiss or as affirmative defense in an answer are deemed waived or abandoned. So the general rule therefore is, if you have defenses or ob)ections, if you will file, allege all them either in a motion to dismiss or alternative defenses in an answer. #ll those defenses, all those ob)ections available but not so raised are deemed waived and abandoned.

%here are certain defenses or grounds of ob)ections however which may not be abandoned, either if they were not initially raised in a motion to dismiss or as an affirmative defense. E+CEPT!ON% to t;e ".R o: FA! &RE TO P EAD Bor instance, the court has no )urisdiction over the sub)ect matter of the case. Suppose the case is already barred by the rule on res )udicata. Suppose the action has already, one that has prescribed. Suppose there is a lis pendencia and all these four are redeemed either on the basis of the pleadings themselves or under the basis of the evidence, the court can dismiss this action based on lac3 of )urisdiction, res )udicata, lis pendencia or prescription, or statue of limitation. EIa31leK # vs. /, this is an action for forcible entry. %he allegations are filed. %his case was filed in the $%C. So / did not file a motion to dismiss for lac3 of )urisdiction. Aeither this lac3 of )urisdiction of the court to try the forcible entry case alleged as an affirmative defense. Q. s )urisdiction here waived' A. Ao. #lthough not raised in the motion to dismiss, or although not raised as an affirmative defense, the court can still dismiss the case although lac3 of )urisdiction was not so alleged. &r where the evidence shows, if proceeded to trial, lac3 of )urisdiction or where the evidence shows res )udicata already, or where the evidence shows that the action has already prescribed or the evidence shows that there is lis pendencia, then the court can dismiss the action. De:ault. Fefault Used to be covered by $ule -;. $ule -; was limited to default, but $ule -; now which covered default, there is another sub)ect of $ule 6. Q. (hat is the rule o: de:ault' A. Fefault here means, the failure of the defendant who was validly served a summons to file the answer within the reglamentary period. So, if for instance, # vs. / was summoned on Fec. ->, -666. Ee has only a period until Fec. 18, -666 or Fec. 17, -666 assuming that Fec. 17, -666 is a wor3ing day within which to file the answer or only appropriate pleading. f / was validly served under $ule -=, and fails to file the answer within that period or fails to file any appropriate pleading within that period, we may say that / has already incurred in default. A TERNAT!-E AND %&CCE%%!-E REMED!E% OF A PRT$ DEC ARED !N DEFA& T a. file a verified motion in set aside the order of default of any time after discovery of the B#9C and before )udgment b. if he did not file one or the same was denied, he would file a motion for a new trial at any time after service of )udgment by default and within 2> days therefrom c. if he fail to file said motion or the same was denied, he could perfect his appeal from and on merits of said )udgment by default within the balance of said 2><day period d. if he failed to ta3e any of said steps, he could file a petition from relief of )udgment within 7> days from notice of the )udgment but within 7 months from entry thereof. (here the defendant has not been validly summoned, under $ule -=, he cannot be declared in default. Q. Eow will # here secure the default of /' A. Ee must file a motion in court. Q. Can the court moto proprio declare / in default' A. Ao. Cven if / has not filed an answer, the court cannot moto proprio declare the defendant in default. # must file a motion. Q. s /, under the new rules, entitled to a notice of the hearing of the motion to declare in default' A. Hes. %his is now the amendment to the old $ule -;. Under the old $ule -;, the )urisprudence thereunder, a motion to declare a defendant in default could be validly heard without notice to the defendant. Ee was not under the same rules and )urisprudence entitled to a notice of the hearing on the motion. t means therefore, that a default motion, under the old rule, will be held e+ parte. %his is not now the rule. # here, the plaintiff, must file a motion, furnish / with a copy of the motion and furnish / with a notice of hearing on the motion. $uling of the court on the motionV

%he court may deny or grant the motion. Q. (hat are the effects of a declaration of default on the defendant' A. %here are many. n substance / loses many rights which pertain to a defendant who has not been declared in default: -. he cannot file an answer! 1. he cannot participate in the proceedings! 2. he cannot present evidence on his behalf! =. he cannot cross<e+amine, ,the witness of the plaintiff. until he regains his standing as a defendant, because the order declaring him in default is set aside, he is in effect outside the ring, loo3ing at # doing his thing. So, a case where a defendant is not declared in default, is li3ened to a bo+ing fight where both opponents are in the ring slugging it out. /ut in the case of a defendant who has been declared in default, the only person in the ring, is the plaintiff # and /, here the defendant is outside the ring loo3ing at what # is doing. Q. (hat follows after the court has validly declared the defendant in default' A. -. %he court may now render a )udgment. %he )udgment may be either what is solely in the allegations in the complaint without the court receiving evidence from #, the plaintiff in support of the allegations. 1. %he court may receive evidence and therafter render a )udgment on the basis of evidence presented by #. Q. #re there limitations on the )udgment that the court may render where the defendant is declared in default' A. Hes. %he limitations are: -. %he )udgment cannot award an amount to the plaintiff in e+cess of what was claimed in complaint! 1. %he )udgment that the court may render can never be different from the )udgment prayed in the complaint. (here a )udgment is rendered without the defendant having been declared in default, the )udgment may be different from what has been prayed provided that )udgment is sustained by the evidence. EIa31leK f / was not declared in default and the claim of # in his complaint for damages is P-9, but what # proved was P-,>>>,>>>.>-, the court may award # P-,>>>,>>>.>- though it e+ceeds by one ,-. centavo they are valid. /ut in a default case, AoZZ even though the evidence of the plaintiff proved that sustained damages P-,>>>,>>>.>-, the court cannot award an amount in e+cess of P-9 ,the amount claimed in the complaint.. Q. Eow may the defendant regain his standing as a defendant' A. Ee must file a motion to set aside the order of default at any time before the )udgment has become final. n other words, if the )udgment has already become final, a motion to set aside the order of default is no longer proper. Q. (hat are the grounds of a motion to set aside a default order' A. Since the default is by reason of failure of the defendant to file the answer, there must be a reason why he failed to file the answer. #nd this must be the reason he must alleged when he filed a motion to set aside the order of default. Q. (hat are these' A. Hou will say: K fail to file my answer because of the following: -. Braud was committed against me, so did not file the answer. 1. #n accident befell me. %his accident prevented me from filing the answer on time. 2. committed a mista3e and this mista3e prevented me from filing the answerJ f he said I was negligent in not filing, but my negligence is e+cusable because: -. 1. 2. %hese are the grounds, fraud, accident, mista3e or e+cusable negligence, which prevented the defendant of filing the answer. ,B#9C. Q. s it enough that these grounds be alleged in the motion to entitle the defendant to a restoration to his status as a defendant' A. Ao. %he motion must be accompanied by the so<called affidavit of merit.

%he a::idavit o: 3erit is composed of two ,1. facts: -. %he facts constituting the fraud, the accident, the mista3e, the e+cusable negligence which prevented the defendant from filing the answer. So, the defendant here must recite the facts constituting the fraud, mista3e, negligence or accident. Ee cannot simply say, I failed to file my answer because there was fraud committed against me or that an accident befell me or that committed a mista3e or that was negligent and that negligence is e+cusable.J (hy' /ecause these are merely conclusions. So you must state here, IBraud was committed against me,J n what did consist of' State thereZ Same thing with the accident, mista3e or negligence. 1. %he good defenses of the defendant to the action So, in the affidavit of merits, the defendant must state there the facts constituting his defense. Ee cannot simply say there, I have a good defense.J AoZ State there what are your good defenses. Q. (hat is the reason why the affidavit of merit indicates therein the good defense of the defendant is required' A. %he rule is based on this supposition. %he court must first e+amine the defenses of the defendant. %o determine whether it is proper or not proper to set aside the order of default and allow the defendant to file his answer and adduced his evidence. (hy' /ecause if the affidavit of merit does not show that the defendant has good defenses so that even if all those defenses alleged in the affidavit of merit were proven, but notwithstanding he will not be still entitled to a )udgment in his person, it would be pointless to allow him to go to trial and prove to state which do not entitle him anyway to any favorable ruling. /ut if after the court has e+amined the proposed evidence as stated in the affidavit of merit, and finds that if this evidence are established, the )udgment may be favorable to defendant, then the court will have a basis of allowing / ,defendant. to reacquire his status as a legitimate defendant.,%his is the purpose.. Q. #lthough a defendant has been validly summoned, can he nevertheless be declared invalidly in default even if he did not file the answer' A. HCS. (hen the declaration of default is premature because at the time he was declared / in default, the period of the filing of the answer has not yet e+pire. EIa31leK %he last day for / to file the answer is Fec. 17. %he court declared / in default on Fec. 1=, -666. Q. s the declaration in default proper' A. Ao. / was not yet in default. (hy' /ecause he has until Fec. 17, -666 within which to file the answer. So, when he was declared default on Fec. 1=, -666, he has still an additional two ,1. days within which to file the answer. So / now files a motion to set aside this default order. Q. Foes he need to accompany his motion with an affidavit of merit' A. Ao, not necessarily. (hy[ because the default order is illegal. Hou cannot declare a defendant in default ahead of the e+piration of the period of the filing of the answer. Q. s the failure of the defendant to file the answer within the reglementary period a ground to declare him in default in all cases' A. Ao. %here are certain cases where a defendant cannot be validly declared in default even though he has not filed an answer within the reglementary period. Q. (hat are these cases' A. %he cases are the following: -. #n action for a declaration of nullity or annulment of a marriage! 1. #n action on legal separation. n these cases where the defendant does not file the answer, the procedure to be followed by the court is this, the court must require the prosecutor to intervene and determine whether there was collusion between and among the parties, and that if such prosecutor finds that there was no such collusions, to direct the prosecutor to intervene for the purpose of seeing t it that the evidence of the plaintiff they adduced is not manufactured or a product of a concoction, the fiscal should determine.

(here there are two or more defendants, some of whom answered and some do not, but the cause of action against the defendants is common to all, meaning, the complaint alleges the cause of action common to all the defendants. Q. (hat procedure should the court follow in determining the case' EIa31leK # vs. /, C and F. # has a cause of action against /, C, and F. %he cause of action is common to all. &nly / answered. Q. Eow will the court proceed to try the case' s C and F declared in default' Hes. A. %rialV Q. Foes this mean therefore that the trial will no longer affect C and F' A. %he $ule is, the court will try the case on the basis of the answer filed by /. %he answer filed by / inures to the benefit of C and F. t is as if this answer filed by / was filed not only for / but also for C and F. %his means to say therefore, that a )udgment rendered binds all the defendants. So, if / wins for instance, C and F might also win. f / looses, C and F also loose. %his rule, however, presuppose that the action of # is against all these defendants is common to them. So, you can declare C and F in default for their failure to file the answer but the case shall be rendered against them on the basis of /"s answer. %his is the essence of $ule 6. Rule 1B K A3ended Pleadin0s #mendment may be a matter of right or not a matter of right, one that is rest on the discretion of the court. #mendment may also be of substantial matter or only on formal matters Q. (hat are the rules o: a3end3ent' A. %hey are as follows: At any ti(e +efore a re&pon&ive leading ha& +een filed, the plaintiff (ay file an a(end(ent pleading once, a& a (atter of right. 9eaning, the plaintiff does not have to get a prior authority from the court to amend. Ee can amend without getting a court order authori*ing him to amend. %he plaintiff # filed his complaint against / on Fec. -, -66;. %he defendant / was summoned on Fec. :, -66;. So, he has a period ending Fec. 11,-66; within which to file the answer in conformity of Sec. - $ule --. %e<. 1 Rule 11 %he defendant shall file his answer to the complaint within fifteen ,-8. days after service of summons, unless a different period is fi+ed by court. Let us say that / filed the answer on Fec. 1> but served the copy of the answer on # on Fec. 11, -66;. &n Fec. 1-, however, # now filed any motion authori*ing him to amend his complaint. So, there was no order for # to amend. / moved that this amended complaint be stric3en off the record on the ground that its filing was not authori*ed because # did not have the authority of the counsel to amend. Q. s the motion to stri3e by /, legally proper' A. Ao. (hen # file the amended complaint on Fec. 1-, the answer of / which was filed on Fec. 1> was not yet served on #. t was served only on Fec. 11. %he rule is, Iat any time before a responsive pleading is served, the party filing the pleading can amend once, as a matter of right.J %he right can be e+ercised only once, not twice. (hen the amended complaint was filed on Fec. 1-, it is a matter of right, meaning it can be e+ercise without a court order. (hen the answer of / was already filed a day ahead or on Fec. 1>. /ut because the rule is very clear, there is a difference between filing and serving under $ule -2, and under $ule ->, the starting point of the right to amend a pleading is not the date of filing but the date of serving a copy of the pleading to the adverse party.

%he rule says, the right to amend before the responsive pleading is served can be e+ercised only once. (hen a party therefore see3s to amend for the second or subsequent times, his pleading, he can no longer do so as a matter of right. Bor him to amend again for the second time or any subsequent time, he must obtain prior leave of court. !llustrationK ?anuary ->, -666 # e+amined his amended complaint and found some deficiencies thereunder which he now wanted to correct. #nd so the only way for his correction would be to file a second amendment complaint. Let us say that the last day for / to file his answer to this amended complaint is ?anuary -8, -666. / here filed his answer on ?anuary -2, -666 and served # a copy of the answer on ?anuary -8, -666. # filed his second amended complaint without leave of court. Q. Could # validly file without leave of court that second amended complaint' A. Ao. Q. (hy could # not since the answer for the amended complaint was not yet served on him when he filed his second amended complaint' A. /ecause the right to amend without leave of court can be e+ercised only once. Q. @ive us the instances when the pleading may be amended to conform with the Cvidence' %e<. C Rule 1B When i&&ue& rai&ed +y the pleading& are tried :ith the eCpre&&ed or i(plied con&ent of the partie& they &hall +e treated in all re&pect& a& if they had +een rai&ed in the pleading&* Such a(end(ent& of the pleading& a& (ay +e nece&&ary to cau&e the( to confor( to the evidence and to rai&e the&e i&&ue& (ay +e (ade upon (otion of any party at any ti(e, even after ?udg(ent: +ut failure to a(end doe& not affect the re&ult of the trial of the&e i&&ue&* !f evidence i& o+?ected to at the trial on the ground that it i& not :ithin the i&&ue& (ade +y the pleading&, the court (ay allo: the pleading& to +e a(ended and &hall do &o :ith li+erality if the pre&entation of the (erit& of the action and the end& of &u+&tantial ?u&tice :ill +e &u+&erved there+y. %here are two situations where a pleading may be amended to conform to the evidence: nstances when pleadings may be amended to conform to the evidence -. when issues not raised in the pleading or in the trial order are tried e+pressly or implicitly with the consent of the parties thereto! 1. when an issue not raised in the pleading or in the pre<trial order to be proven by a party and ob)ected to be tried if the presentation of the merits of the case and substantial ends of )ustice are subserved thereby. EIa31leK # vs. /. %he complaint of #, he alleged among others that he gave a loan to /. %he loan is already overdue. Femands notwithstanding, / refused to pay. %he prayer of # is that )udgment be rendered: -. ordering / to pay # the amount loaned! 1. ordering / to pay damages to #. %he answer of / that he denies that he obtained from #. Ee li3ewise denies that he was as3ed to pay #, no demand whatsoever having made. #s /"s defenses, he raised the following: -. the action has already prescribed. %his is the only defense that / alleged. Furing the trial # presented his evidence and the allegations. / presented his evidence to prove his denial. Ee now tries to prove prescription. n addition, he now tries to prove payment. n other words, / said that he already paid. Q. s payment an issue' A. Ao. /ecause it was not raised in the pleading. Aothing was said in the answer of / that he paid. %he rule is you cannot prove a defense not alleged, you are limited of proving only which you have alleged. Provided of course that, that is disputed. So, our rule here, under the ordinary rules of pleading particularly under $ule -2 there having been no issue raised in the pleading with respect to payment, then this payment cannot be proven. Eowever, when / tried to prove this, # did not ob)ect. &n the other hand, # adduced evidence showing that there was no payment. Q. 9ay the court now in deciding the case consider the evidence of payment under this rule on amendments of pleadings to conform to the evidence' A. %he court may. t can consider it although there was no issue. Q. n order to )ustify the court ruling or deciding what is allowed to do under $ule ->'

A. %he court may now order # and / to amend their respective pleadings to conform to the evidence on payment. So, / here will be allowed to amend the answer to allege therein payment. # may now be allowed to amend his complaint to allege non<payment to conform to the evidence. Supposing the court did not order the amendment. Q. Can it pass on the issue of payment' A. Hes. %he rule is, whether the pleadings have been amended or not to conform with the evidence, the court can still rule on the issue that was impliedly or e+pressly agreed upon to be tried by the parties. So, the non<amendment of the pleading will not )ustify the court from refusing to resolve this issue of payment. f there was already evidence of payment because there was ob)ection in this case, on the part of # that issue of payment can be resolved by the court with or without the amendment of the pleading. / now introduces his evidence of payment. Eowever, # ob)ected on the ground that there was no allegation of payment under the cardinal rule on pleading, Iyou cannot prove what you have not allegeJ. %he court will say / is allowed to prove and if # cannot show that the reception of the evidence of payment would pre)udice him. &n the contrary, the court believes that presentation of evidence on this issue of payment will be served the merits of the case or in the language of the law, the ends of )ustice are subserved by the amendments. RENE NOTE%K N 5-en t-e co1plaint is a1ended, ! situations 1a% arise@ -. f the complaint merely corrects or modifies the original complaint, then the action is deemed commenced upon the filing of the original complaint! 1. f the amended complaint alleges a new cause of action, then the new allegedly cause of action is deemed commenced upon the filing of the amended complaint. N >nstances 6-en a1end1ent "% leave of court not allo6ed@ -. when cause of action, defense or theory of the case is changed! 1. amendment is intended to confer )urisdiction to the court! 2. amendment to cure a premature or non<e+isting cause of action! =. amendment for purposes of delay %u11le3ental Pleadin0 %e<. 7 Rule 1B Upon (otion of a party the court (ay, upon rea&ona+le notice and upon &uch ter(& are ?u&t, per(it hi( to &erve a &upple(ental pleading &etting forth tran&action&, occurrence& or event& :hich have happened &ince the date of the pleading &ought to +e &upple(ented* The adver&e party (ay plead thereto :ithin ten /#6. day& for( notice of the order ad(itting the &upple(ental pleading* EIa31leK # vs. /. (hen # file this case on Fec. -, -668, he could have allege only facts that occurred before or until Fec. -, -668. Ee could not have ascertained in that complaint of his dated Fec. -,-668 facts which would have occurred Fec. -, -667. (hy' /ecause he is not Aostradamus. Ee does not 3now what is tomorrow. So, you cannot allege facts not yet e+isting at the time the pleading is filed. Supposing there were facts already e+isting on Fec. - or before that, but which # forgot to allege and which facts are material to his case. Q. Can he change his pleadings' Eow' A. Hes, by amended pleading to incorporate therein facts already e+isting at the time of the filing of the pleading or at the time before the pleading is filed. Q. (hat is a supplemental pleading' A. # supplemental pleading is one embodying therein occurrences, facts and events that transpired after the original pleading was filed. So, in the e+ample, where the suppose offer of / to settle was made on Fec.-, -667 and # wants to aver this in a supplemental pleading.

Q. (hy supplemental' A. /ecause this matter could not have been alleged on Fec. -, -668 because it did not yet occurred. Hou will notice that the supplemental pleading is intended, as the term suggest, to supplement or to add to the original pleading. Unli3e the amendment pleading, which supersedes the original pleading, a supplemental pleading does not put out of e+istence the original pleading. EIa31leK n an amended pleading of /, the moment this is filed and this is accepted, the original pleading or complaint ceases to e+ist. t is no longer legally a part of the record although it is there. t is there, but legally it is not there. t is non<e+istent. Hou can physically see it but legally you are blind to it because an amended pleading supersedes the original pleading. Q. Eow about a supplemental pleading' A. Ao, it does not supersedes. t is merely an additional. So that when a supplemental pleading is filed, there are actually two pleadings now, the original pleading and the supplemental pleading. EIa31leK Fec. -, -668 # sued / the 9C$#LC& in an action to en)oin it from cutting off the electrical connection of #. # prayed that a restraining order be issued while the case is going on. /, the 9C$#LC&, alleged that # stole electricity by installing in its electrical connections a )umper. %he event which is that electricity passing through the )umper is not recorded in the meter amounting to thousand of pesos. # now filed an urgent motion as3ing the court to resolve the application for restraining order. %he court denied the %$&, so 9C$#LC& now threatened to carry out its original desire of cutting of the electricity. %o avoid the cutting of the electricity, # paid under protest. %he contention of # is that he did not steal it, and therefore he is now entitled to the return of his money. Q. Foes he have to file a separate complaint to recover what he paid' A. (hat he can do is file supplemental pleading alleging therein what happened. Q. (hat happened here' A. #fter he filed the complaint, the court denied his application for %$&, 9C$#LC& now threatened to cutoff his, electricity to avoid the cutting of the electricity, he paid under protest. Q. (hat is now #"s prayer' A. #"s prayer is that 9C$#LC& be ordered to return to him the amount he paid. Q. Could he pray for that in his original complaint' A. Bor obvious reasons, he could not have set forth that fact because it did not have occurred when he filed the original complaint. # supplemental pleading should be answered. Q. (hen should it be answered' A. # supplemental pleading should be answered within ten ,->. days from the notice of the order admitting supplemental pleading. Q. (hat would be the basis now of / in filing the answer to the supplemental pleading' Eow would / 3now the contents of the supplemental pleading' A. %he court furnishes / with a copy of supplemental pleading of #. Under $ule -8, when a motion is filed, the pleadings sought to be admitted are already attached to the motion, so the motion now carries the copy of the supplemental pleading a complaint. # now furnished /, when / received the order admitting the pleading of #, he already had with him a copy. %hat is why, the ten ,->. day period is counted from the receipt of the order admitting the supplemental pleading. / in this e+ample, did not file the answer to the supplemental pleading. # now filed a motion to declare him in default with respect to the supplemental pleading. / now engaged #tty. 9arte as his counsel. Q. (hat legal procedure are you ,Danny. allowed to involve in order that this motion of # to declare your client in default may be thwarted'

A. (hile it is true that the rule require a supplemental pleading to be answered, the failure of the party to answer is not a ground to declare him in default. (hy' /ecause the answer he already filed to the original complaint serves as his answer to supplemental pleading. RENE NOTE%K #9CAFCF PLC#F A@ X refers to facts e+isting at the time of the commencement of the action. X ta3e the place of the original pleading X can be made as a matter of right as when no responsive pleading has yet been filed SUPPLC9CA%#L PLC#F A@ X refers to facts arising after the filing of the original pleading. X ta3en together with the original pleading. X always with leave of court

E::e<ts o: A3end3ent Pleadin0 ,a. #dmissions in the superseded pleading can still be received in evidence against the pleader! ,b. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived. R& E 11K)'EN TO F! E RE%PON%!-E P EAD!N"% Q* Give u& the period :ithin :hich a pleading (ay +e an&:ered: -. Complaint P -8 days after service of summons: 2> if foreign corp.! 7> days if done thru e+traterritorial service 1. Counterclaim P -> days form service 2. Cross<Claim < -> days form service =. %hird Party Complaint P -8 days after service of summons 8. # Complaint<in< ntervention P -8 days form notice of the order admitting it 7. #nswer<in a case where the motion to dismiss it is denied P balance of period required but not less than 8 days from receipt of notice of denial :./ill of particulars<within -> days from the notice of the order ;.Supplemental pleading< within -> days from service %e<. 1 Rule 11 Co31laint %he defendant shall file his answer to the complaint within fifteen ,-8. days after service of summons, unless a different period is fi+ed by the court. %e<. ? Rule 11 FCounter,<lai3 and Cross,<lai38 # Counter<claim or cross<claim must be answered within ten ,->. days from service %e<. 7 Rule 11 FT;ird,Party Co31laint8 %he time to answer a third ,fourth, etc.. party complaint shall be governed by the same rule as the answer to the complaint. %e<. ? Rule 1C FCo31laint in !ntervention8 %he complaint of intervention shall be filed within fifteen ,-8. days from notice of the order admitting the same, unless a different period is fi+ed by the court. %e<. ? Rule 17 FMotion to Dis3iss8 f the motion is denied, the movant shall file his answer within the balance of the period prescribed by $ule -- to which he was entitled at the time of serving his motion, but not less than five ,8. days in any event, completed from his receipt of the notice of the denial. f the pleading is ordered to be amended, he shall file his answer within the period prescribed by $ule -- counted from service of the amended pleading, unless the court provides a longer period. n a case of a bill of particulars where the motion was denied or where the motion is granted, when the bill of particulars was filed. Q. (hat is the period to file the answer' A. %e<. 6 Rule 15 Bill o: Parti<ulars !f the (otion i& granted, either in :hole or in part, the co(pliance there:ith (u&t +e effected :ithin ten /#6. day& fro( notice of the order, unle&& a different period i& fiCed +y the court* The +ill of particular& or a (ore definite &tate(ent ordered +y the court (ay +e filed either in a &eparate or in an a(ended pleading, &ending a copy thereof on the adver&e party*

Q. (here the defendant is a foreign corporation doing business in the Philippines. (ithin what period must it file its answer' A. %e<. 5 Rule 11 Where the defendant i& a foreign private ?udicial entity and &ervice of &u((on& i& (ade on the govern(ent official de&ignated +y la: to receive the &a(e, the an&:er &hall +e filed :ithin thirty /96. day& after receipt of &u((on& +y &uch entity* Q. Complaint, when should it be answered' A. (ithin fifteen ,-8. days from service of summons to the defendant. Q. Eow about a counter<claim, within what period should it be answered' A. (ithin ten ,->. days from service of the counter<claim on the defendant with respect to the counter<claim. %he defendant in a counter<claim is the plaintiff. Q. Eow about the cross<claim' A. Cross<claim must be answered within ten ,->. days from service of this cross<claim to the proper party answering is the cross<defendant. # third<party complaint or a fourth<party complaint or any complaint for that matter must be answered within fifteen ,-8. days from service of the summons. Complaint in intervention must be answered within fifteen ,-8. days from receipt by the defendants in intervention of the order admitting the complaint<in intervention. n a case of a complaint which was the sub)ect of a motion to dismiss which was denied. %he defendant has a period representing the balance of the original period he has./ut in no event should the period be less than five ,8. days. n the case of a bill of particulars, the defendant whose motion for bill of particulars, is denied or where the bill of particulars was granted, the period within which the defendant must file the answer would be the balance of the -8< days period within which he should have filed the answer but in no event less than five ,8. days. n the case of the supplemental pleading, the answer must be filed within ten ,->. days from service of the notice admitting the supplemental pleading. Pleadings to be amended shall do so with liberality if the presentation of the merits of the action and the ends of substantial )ustice will be subserved thereby. %he court may grant the continuance to enable the amendments to be made. RENE NOTE%K X %he granting of additional time to the defendant to file an answer is a matter largely addressed to the sound discretion of the court. %hey may e+tend the time to file the pleadings but may not shorten them. X f the filing of an amended complaint is a matter of right, the -8<day period to answer is counted from the service of the amended complaint. X f the filing of an amended complaint is not a matter of right, then leave of court is required, hence, the -><day period to answer runs from notice of the court order granting the same. X f no new answer is filed by the defendant in case an amendment has been made after he has filed his answer, the original answer of the defendant may serve as the answer to the amended complaint and hence, cannot be declared in default. Rule 15K Bill o: Parti<ulars Q. (hat is the concept of /ill of Particulars' A. %he complaint or a pleading may be vague or ambiguous. %his being so, the defendant may not possibly be in a position to file an answer. /efore he files the answer, he has a remedy to secure from the plaintiff a clear allegation of the facts, the defendant considers as vague. EIa31leK

%his is an action filed by # against / for recovery of a lot. %he allegation in the complaint alleges that # is the owner of the lot in SC. (hich he has always been in possession of, for a number of years until / e)ected him ,#. therfrom. Q. Hou are /, do you 3now what is this lot in SC' A. n an action for recovery, the identity of the property must be stated. So the owner itself requires that the identity by its boundaries ,technical description.. # should have described in his complaint the boundaries, area etc. of the lot in question. f you were /, unless you 3now the description of this lot # is tal3ing about. Q. So what are you allowed to do before you file the answer' A. Hou want that land to be identified, so you file a motion to require # to submit a bill of particulars. Q. (hat is the purpose in as3ing the court to order # to submit a bill of particulars' A. Hour purpose is to allow you to properly file your answer, because unless you 3now the lot # tal3ing about, you cannot possibly file an intelligent answer. So the purpose therefore is to clarify an ambiguity in order to answer the complaint intelligently. Q. (hen may a motion for /ill of Particulars be filed' A. #t any time within the period for the filing of the answer. n this e+ample, within the period of the filing of the pleading, / can file a motion to require # to submit a /ill of Particulars. Q. (hat is the effect of the filing of the motion for /ill of Particulars on the running of the period of the filing of the answer' A. (hen a motion for /ill of Particulars is filed, the period for the filing of the answer is suspended. Q. (hat does it starts to run again' A. t starts to run again when a motion for /ill of Particulars is denied and the defendant received a copy of the order of denial or it starts to run again when, after the motion has been granted, the plaintiff has filed a motion for /ill of Particulars and the defendant receives a copy of the /ill of Particulars. (ithin what period should an answer be filed following the denial of the motion or following the receipt of the /ill of Particulars' %he rule says that: %he defendant is entitled to the balance of the period he was entitled to, at the time he filed the motion, but in no event should the period be less than five ,8. days. So, if for instance, # filed the action against /. / received the summons on ?an. 1, -666. Ee filed a motion for a /ill of Particulars on ?an. 6, -666, so that when he filed the motion for a bill of particulars, he already consumed seven ,:. days of the original -8<day period. So, therefore he has eight ,;. days. f / received on ?an. ->, -666 the order denying the motion or he received on this day a copy of a bill of particulars submitted by #. / has eight,;. days counted from ?an. ->, -666. %herefore, his last day for the filing of the answer would be on ?an. -;, -666. &n the other hand, if / filed a motion for a bill of particulars on ?an. -8, -666 and therefore he has already consumed thirteen days of the original -8 days period, consequently he has only two ,1. receiving days. (hen he received the order of denial on ?an. ->, -666, he received on this day a copy of a bill of particulars, he has still five ,8. day period until ?an. -8, -666 within which to file the answer. Q. (hy not ?an. -1, -666, because that is the balance to which he is entitled to at that time' A. /ecause the rule says, Iin no event shall the period be less than five ,8. days.J Q. (hat are the sanctions against the failure of the plaintiff to comply with the order of the court directing him to file a bill of particulars' A. Should # be directed by the court to file a bill of particulars, he must do so within the period fi+ed in the order, but in no event should the period be less than ten ,->. days. So, if the court does not fi+ the period within which # must file the bill, it is understood that he has a -><day period. %hat period cannot be shortened, it can be e+tended, but never shortened. %he sanctions against the failure of a party plaintiff to file the bill of particulars when ordered by the court, is, the court may order the stric3ing out of the pleading to which the motion for bill of particulars refers. &r the court under Sec. 2 $ule -: may dismiss the action for failure to comply with an order.

Under the old rules, a motion for a bill of particular was a litigated motion because thereunder, the court must set for hearing a motion for bill of particulars. %his is no longer the case. Under the new rules, the court can resolve the motion for a bill of particulars e+ parte or with notice to the adverse party. %his is why we have a provision that upon the filing of a motion for bill of particulars, the cler3 of court should refer the motion immediately to the court, unless the court desires that that motion be heard with due notice with the adverse party. RENE NOTE%K X f the defendant files an answer but fails to obey an order relating to a bill of particulars or in case of insufficient compliance thereof, the answer may be stric3en off the records and the defendant be declared in default upon the motion of the plaintiff. Rule 16K %ervi<e and Filin0 o: Pleadin0s S. @ive the desticntions between Service and Biling. #. %e<. 5 Rule 16 Ailing is the act of presenting the pleading or other paper to the cler3 of court. Service is the act of providing a party with a copy of the pleading or paper concerned. f any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. (here one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. Filin0 FManner8 -. personally to cler3 of court 1. registered mail, not ordinary mail EIa31leK Suppose a pleading is filed by ?$S C+press or L/C ?an. -, -66> P the pleading was delivered to ?$S C+press ?an. -8, -66> P ?$S C+press delivered it to the court %he date it is considered filed is on ?an. -8, which is the date it is delivered and received by the cler3 of court and not on the date of deposit to ?$S C+press. EIa31leK # vs. / -. # resides in Sulu, / in /atanes. n Sulu, there is no registered mail service, then a copy of the pleading can be served only by ordinary mail. 1. %here is a registered service in Sulu, but there is none in /atanes. Service can be effected by ordinary mail. 2. %here is a registered service in Sulu, and there is also a registered mail service in /atanes, service can be done only by registered mail Q* @o: a+out final order, ?udg(ent, re&olution, ho: can they +e &erved' -. &nly by personal service and 1. /y registered mail. t can never be done by ordinary mail. Rea&on: %here is such a thing as a period of appeal or for the performance of some legal acts. %here must be a definite starting point (here the service is by ordinary mail, there will be no definite starting point for the period to appeal or to that other legal acts. (hy' %here is no record. /ut when it is a registered mail, there is a record or whether it is a personal service, there is a record. /ut in the case of ordinary mail, there is none. Q. (here a party wants to serve a copy of his pleading or other papers, either by personal service or by registered mail for that matter, how can such pleading or other papers be served' ,Hou cannot serve it personally because, let us say, the office the adverse party is not 3nown, his residence is not 3nown, he cannot be served by registered mail or by ordinary mail, for the simple reason that, you do not 3now where he is. Eow can he be served' %he party serving must serve his pleading or other papers on the cler3 of court by proving to the cler3 of court, Ifailure to serve personally or by mail.J

EIa31leK / files a motion ,this is litigated.. So he has to notify # of the motion, because a litigated motion cannot be resolved by the court unless there is proof of service of a copy thereof to the adverse party. / cannot serve a copy of the motion to # because the office of # is not 3nown. Eis residence is not 3nown also. Ee cannot be furnished by mail ,registered or ordinary.. %he hearing is set on Fec. ->, -66;. So, if / cannot prove that he served a copy of his motion to #, the hearing on Fec. ->, -66; cannot proceed because this is a litigated motion. Q. (hat is the remedy available to / even if # was not personally served with the notice of the motion, this motion can be heard on Fec. ->, -66;' A. #ll that / does is to serve a copy of his motion to the cler3 of court. /ut of course, / has to prove that / could not serve it on #"s office or residence either personally or by mail, registered or ordinary. %his is a remedy which does not appear to be appreciated P by many lawyers. %he service on the cler3 of court on that day it was served to him is equivalent to a service of to /. %ervi<e /y re0istered 3ail. Q. (hen is service by registered mail deemed complete' A. EIa31le: # vs. /. # )udgment was rendered against /. # copy of that decision was sent to him by registered mail on Fec. -, -66;. %he postmaster sent to / on Fec. 8, -66; a notice to the effect that this mail is pending in the post office. So, / received it on Fec. 8. / withdrew this mail on Fec. 1>, -66;. So, within the fifteen ,-8. days period for the filing of the notice on appeal, / filed a notice of appeal on ?an. =, -666. ?an. 8, -666 after receiving the copy of this notice of appeal of /, # now filed a motion to dismiss the appeal on the ground that it was filed late beyond the reglementery period. # contented that under $ule -2, / is deemed to have received the copy of the decision on Fec. 8, -66;. #nd since he has only a -8 day period from Fec. 8, -66; within which to file the notice of appeal, this period e+pired on Fec. 1>, -66;. %herefore, when it was filed on ?an. 8, -66;, -7 days already passed. &n the other hand, / in opposing this motion of # argued that he ,/. actually received from the mail on Fec. 1>, -66; the )udgment. %herefore, / has a period of -8 days counted from Fec. 1>, -66;, within which to file his notice of appeal and the last day of this -8<day period is ?an. =, -666. So the motion of # is not legally tenable. Q. (hat would be the correct ruling on the motion of #' A. %e<. 1B Rule 16 Cmphasis on Last sentence 'er&onal &ervice i& co(plete upon actual delivery* Service +y ordinary (ail i& co(plete upon the eCpiration of ten /#6. day& after (ailing, unle&& the court other:i&e provide&* Service +y regi&tered (ail i& co(plete upon receipt +y the addre&&ee, or after five /5. day& fro( the date he received the fir&t notice of the po&t(a&ter, :hichever date i& earlier* / was deemed to have received it legally five ,8. days after Fec. 8, -66;, although he physically received it on Fec. 1>, -66;. Bor purposes therefore of the appeal, the -8<day period is counted from Fec. ->, -66; not on Fec. 1>, -66;. Q. (hat rule will apply if we now consider that he received it legally and physically on Fec. 1>' A. f there was no notice from the postmaster that he has a pending mail, per Sec. -> of $ule -2, he has deemed to have receive it when he physically received it on Fec. 1> in which case the appeal on ?an. = was deemed complied. So, in the absence of a notice given by a postmaster, to the addressee, the service is deemed complete upon actual receipt, but if there is a first notice and the mail is not received within five ,8. days from first notice, the service is deemed complete upon the e+piration of five ,8. days from the first notice. Priority in t;e %ervi<e o: Pleadin0s G 'er&onal Service Pleadings and other papers should be served whenever practicable by personal service. (here service other than personal is resorted to, there must be an accompanying e+planation why the pleading was served by means other than personal service. Q. (hat will be the effect of failure to comply with Sec. -- $ule -2' A. %e<. 11 Rule 16 Whenever practica+le, the &ervice and filing of pleading& and other paper& &hall +e done per&onally* ECcept :ith re&pect to paper& e(anating fro( the court*

(hen a pleading is served other than personal service, and there is no accompanying e+planation of this, then this pleading is deemed not to have been filed. %his sec. -- $ule -2 is mandatory and this is e+emplified in the case of Solar %heme Cntertainment nc. vs. C#Y 21>> #ugust 8, -66;, 16> SC$# 7>8. Cffective ?une -, -666, this rule must be strictly followed. So whenever you serve, you serve personally. f you do not serve personally, then you have to state why you furnish by means other than personal service. #n omission of this e+planation is fatal because this pleading shall be considered as not having been filed. RENE NOTE%K X 9odes of Service A. *&D"MENT%# F!NA ORDER% AND RE%O &T!ON% ,a. /y personal service! or ,b. /y service by mail! ,c. /y service by publication, if party is summoned by publication and has failed to appear in the action, )udgment, final order or resolution. < %hey can be served only under the three modes. X < %hey C#AA&% be served by substituted service. B. P EAD!N"% -. personal service ,a. Felivering personally a copy to the party or his counsel or! ,b. Leaving a copy in counsel"s office with his cler3 or with a person having charge thereof or! ,c. Leaving the copy between ; a.m. and 7 p.m. at the party"s or counsel"s residence, if 3nown, with a person of sufficient age and discretion residing therein P if no person found in his office, or if his office is un3nown, or if he has no office. 1. service by mail ,a. f no registry service is available in the locality, of either sender or addresses, service may be done by ordinary mail. ,b. (ith proof of failure of both personal and service by mail. Co31leteness o: a %ervi<e -. 'er&onal Service < by handing a copy to defendant! or < tendering him a copy if he refuses < complete upon actual delivery 1* Service +y ordinary (ail: Complete upon e+piration of -> days after mailing, unless the court provides otherwise. 2* Service +y regi&tered (ail: ,a. Complete upon actual receipt by the addressee! or ,b. #fter 8 days from the date he received the first notice of the postmaster, whichever date is earlier. Proo: o: Filin0 X Biling is proved by its e+istence in the record of the case. f it is not in the record, and: < if filed personally: proved by the written or stamped ac3nowledgment of its filing by the cler3 of court on a copy of the same! or < if filed by registered mail: proved by P ,a. the registry receipt and ,b. %he affidavit of the person who did the mailing. Proo: o: %ervi<e X Proof of personal service: ,a. (ritten admission of the party served! or ,b. &fficial return of the server! or ,c. #ffidavit of the party serving

Rule 1?K %u33ons Su((on& is the compulsory process issued by the court notifying the defendant that a case been filed against him and requiring him to file the answer within the period stated in the summons with a warning that should he fail to answer within the reglementary period, a )udgment may be rendered against him on the basis of the evidence that the plaintiff may advance. Q. (hat is the purpo&e of &u((on&' A. -. Summons is intended to vest in the court the )urisdiction over the person of the defendant. Unless a defendant is within the )urisdiction of the court, the court cannot validly render a )udgment in the case. %his is similar in the case of an accused who has not been arrested and has not been arraigned. %he court cannot render )udgment against on accused who has not been brought under its )urisdiction. %he purpose of the summons therefore is, to confer to the court )urisdiction over his ,defendant. person. ?ust to show you that the )urisdiction of a court to the person of the defendant is a must, is the fact that Sec. $ule -7 includes in its enumeration grounds of a motion to dismiss the fact that the court has not acquired )urisdiction over the person of the defendant. So, when the court has no )urisdiction over the person of the defendant, the court cannot validly render )udgment. Q. Eow is summons served' A. Su((on& i& &erved either +y -. personal service: 1.by substituted service,2. service by publication or=. by any other means which the court finds it proper. %here are four ,=. means: Personal servi<e P which is preferred. Q. (hat does personal service consist' A. t consist of actually giving to the defendant a copy of the summons, the complaint and all other documents accompanying the complaint. Q. Supposing the defendant said, I#yaw 3o, will not receive,J the person serving it 3ic3 it towards the defendant, is it served' A. Hes, even though the defendant did not sign. (hether he signs or not in the ac3nowledgment of his receipt of the summons, he"s deemed to have already been served. f you cannot serve it to him personally because you cannot find him in the place where you thought you could find him. %hen you resort to a substituted service. Q. n what way may substituted service be effected' A. %he sheriff or process server must leave the summons, the complaint and all the other documents attached thereto with a person living in the house of the defendant. Q. (ith any person' A. Ao, only a person of sufficient age and discretion. Q. So, the process server goes to the house of the defendant but does not find the defendant there because he is out but finds a neighbor who is visiting in that house and leaves the summons with the visitor, is there a valid substituted service' A. Ao, because that visitor is not a person living in that house. Hou go the house of the defendant, nobody is there. %hen you go to his office, if the defendant is not there, leave that summons with the person in charge of the office. Q. (hat is the )urisprudence of substituted service' A. Substituted service is the interrogation of the rights of the defendant. %herefore, &u+&tituted &ervice can +e effected only :hen the defendant cannot +e &erved per&onally :ithin a rea&ona+le ti(e* Q. (hat time will it be reasonable' Supposing the sheriff or process server went to the house of the defendant once and did not find him thereV

Q. (hat is required of a sheriff or process server to do when he resorts to substituted service' A. Ee must state in his return of service, a return of service is the report that the server, sheriff or process server renders to the court on what he did with that summons ,or sheriff"s return< other term for return of service.. %he server, whether he is the sheriff or the deputy sheriff or the process server, is required to render a report on what he did. (here the service is substituted, the sheriff, the process server or whoever was commissioned to serve it must state in his report the following: -. the impossibility of serving the summons personally! 1. the reason for such impossibility! 2. how the summons was effected! meaning therein the particulars such as the date of service, on whom it was served and how it was served. Unless all this data appear on the return, the substituted service is null. Q. (hen may summons by publication be effected' A* !n the follo:ing ca&e&, &u((on& +y pu+lication (ay +e effected: -. where the defendant is sued as an un3nown defendant! 1. where the whereabouts of the defendant is un3nown! they could not be ascertained notwithstanding diligence in ascertaining such whereabouts! 2. when the defendant is a resident defendant but is temporarily out of the Philippines! =. when the defendant is a non<resident defendant and the actions against him be any of the following: a. an action which involves the personal status of the plaintiff! b. the sub)ect matter of the suit is real property

%he reliefs prayed for respecting the real property are as follows: -. to e+clude the defendant from any claim that he may have over that property! or 1. where the property is a property of the defendant and this property has been attached. Q. Eow may a non<resident defendant be summoned when the case against him is any of the case above<mentioned ,action involving the civil status of the plaintiff or an action involving real property in the plaintiff' A. %here are several ways of serving: -. by personal service %his means to say that the court in the Philippines can send somebody abroad to serve personally the summons. 1. by publication in a newspaper of general circulation for such period of time that the court may deem proper. /ut in this case, a copy of summons and the complaint and all the other papers attached to the complaint must be sent by registered mail to the last 3nown address of the defendant. 2. by any means that the court may find proper. n the Cariaga v&* 0alaya case, the then ?udge #ntonio 9alaya of CB 9anila ordered the defendant residing in US# summoned by registered mail. %he defendants received the registered summons. So they file a motion to dismiss the complaint on the ground of lac3 of )urisdiction of the court over their persons. %hey argued that the summons effected then by means of registered mail was not a valid summons. %hey contented, in short, that summons cannot be served by registered mail. Supreme Court overruled this contention. Supreme Court holding that under Sec. -8 of $ule -=, service of a summons by registered mail is covered by the phrase, Iany other means that the court may find proper.J n the case of a foreign corporation doing business in the Philippines, the period depends on whom was the summons served. f the summons was served on its agent or representative in the Philippines, the period is fifteen days. f on the other hand, the summons was served on a government officer, the defendant has a period of thirty ,2>. days from receipt of the summons within which to file an answer. (here a defendant is summoned under $ule -= under Sec. -8 thereof, the defendant has a period of si+ty ,7>. days from notice within which to file the answer. %e<. 1C Rule 1? When the defendant doe& not re&ide and i& not found in the 'hilippine& and the action affect& the per&onal &tatu& of the plaintiff or relate& to, or the &u+?ect (atter of :hich i&, property :ithin the 'hilippine&, in :hich the defendant ha& or clai(& a lien or intere&t, actual or contingent, or on :hich the relief de(anded con&i&t&, :holly or in part, in eCcluding the defendant fro( any intere&t therein, or the property of the defendant ha& +een attached :ithin the

'hilippine& &ervice (ay, +y leave of court, +e effected out of the 'hilippine& +y per&onal &ervice a& under &ection 7B or +y pu+lication in a ne:&paper of a general circulation in &uch place& and for &uch ti(e a& the court (ay order, in :hich ca&e, a copy of &u((on& and order of the court &hall +e &ent +y regi&tered (ail to the la&t 1no:n addre&& of the defendant, or in any other (anner the court (ay dee( &ufficient* Any order granting &uch leave &hall &pecify a rea&ona+le ti(e, :hich &hall not +e le&& than &iCty /76. day& after notice, :ithin :hich the defendant (u&t an&:er* RENE NOTE%K X (here the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint B it does not introduce new causes of action. X /U% where the defendant was declared in default to the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment. X %ervi<e o: %u33ons on Di::erent Entities #. SC$D CC &A CA% %H ( %E&U% ?U$ F C#L PC$S&A#L %H /. SC$D CC UP&A 9 A&$S #AF AC&9PC%CA%S < < < < < < C. SC$D CC UP&A P$ S&AC$ F. SC$D CC UP&A F&9CS% C P$ D#%C ?U$ F C#L CA% %H C. SC$D CC UP&A B&$C @A P$ D#%C ?U$ F C#L CA% %H B. SC$D CC UP&A PU/L C C&$P&$#% &AS < < upon any or all defendants being sued under common name! or person in charge of office serve personally and on guardian or any person e+ercising parental authority over him! in case of minors: by serving upon the minor, regardless of age, #AF upon his legal guardian, or also upon either of his parents. n case of incompetents: by serving on him personally #AF upon his legal guardian, but not upon his parents, unless when they are his legal guardians A #AH CDCA%, if the minor or incompetent has no legal guardian, the plaintiff must obtain the appointment of a guardian ad item for him. Serve an officer having management of the )ail or prison

@. CG%$#<%C$$ %&$ #L SC$D CC

%o the president, managing partner, general manager, corporate secretary, treasurer or in<house counsel < Service upon a person other than those mentioned is invalid and does not bind the corporation. < Serve on ,-8. resident agent! or if none! < @ov"t official ,2>. designated by law! or < &n any officer or agent of the corporation within the Philippines < n case defendant is the $epublic of the Philippines P by serving upon the Solicitor @eneral < n case of a province, city or municipality, or li3e public corporations P by serving on its e+ecutive head, or on such other officer or officers as the law or the court may direct. -. Requisites a. defendant does not reside or is not found within the Philippines b. the action either: X affects the status of the plaintiff! X relates to or the sub)ect of which is property within the Philippines on which defendant has a lien or interest! X demands a relief which consists wholly or in part in e+cluding the defendant from any interest in any property within the Philippines! X property of defendant has been attached to the Philippines 1. Mode o: %ervi<e a. with leave of court served outside the Phil. /y personal service! or b. with leave of court served by publication in a newspaper of general circulation, in which case copy of the summons and order of court must also be sent by registered mail to the last 3nown address of defendant! or c. any other manner the court deem sufficient.

E. SC$D CC UP&A $CS FCA% %C9P&$#$ LH &U% &B %EC PE L PP ACS

Substituted service or with leave of court, personal service out of the Philippines as under e+traterritorial service.

X (here the defendant is a resident and the action is per&ona(, summons by publication is invalid as being violative of the due process clause. X #ny form of appearance in court, by the defendant, by his agent authori*ed to do so, or by attorney, is equivalent to service e+cept (EC$C such appearance is precisely to ob)ect to the )urisdiction o the court over the person of the defendant. X nclusion in a motion to dismiss of other grounds aside from lac3 of )urisdiction over the person of the defendant8 shall not bee deemed a voluntary appearance. Rule 1CK Motions 0otion is defined as an application for a relief not embodied in the pleading. Q. (hat are pleadings' A. %hey are the complaint, counterclaim, cross<claim, third party complaint, complaint in intervention, or answer %e<. 1 Rule 1C A (otion i& an application for relief other than +y a pleading* EIa31leK # vs. /. Hou have a complaint then an answer and after trial you have the )udgment or decision. %he relief prayed for by # is that a )udgment be rendered against / declaring # owner of the land and ordering / to turn over to # the possession of the land, ordering / to pay him damages. n so far as / is concerned, the relief prayed for by / is the dismissal of the complaint of #. # prayed that he ,/. declared the owner of the land. 9ay either of the parties secures any relief other than a )udgment, between the tie this case is pending and times this case is decided. A. Hes, in between the course of the proceedings, there be many relief a party may prayed for but not a )udgment. %here are many incidents while a case is pending, incidents in connection with which a party may want to secure a particular relief. EIa31leK # vs. /. #fter this complaint was filed on ?an. 1, -666, / now files a motion to dismiss. Q. (hat does / want as a relief' A. Fismissal of the complaint. Q. (ill there be a trial on the merits of the case when this case will be dismissedO A. Aone. EIa31le: %rial is set. Cither # or / is not ready to go to the trial. So # or / wants the trial to be cancelled. So that if the trial was set on ?an. 1=, -666, either # or / will file with the court a paper as3ing therein that this date of hearing be cancelled. So, whatever relief you want to obtain from the court before the )udgment, you can obtain that only by means of a motion. (hy' /ecause you cannot incorporate in your complaint or complaints in intervention this reliefs which will not constitute a )udgment on the merits of the case. So whatever you want to get from the court, you get that through a pleading called motion. %hat is why Sec. $ule -8 defines a motion as an application for a relief not included in a pleading. /ut if you want to obtain a )udgment on the merit, you can prove that by means of a complaint, answer, counterclaim, etc.

Q. (hat are the 1ind& of (otion&' #. %here are two ,1. 3inds of motion: -. Aon<Litigated motion 1. Litigated motion # non3litigated (otion is one, which a court can act upon without hearing the adverse party because the adverse party does not have the right to oppose application for relief and should the court resolve this motion without hearing the adverse party is nevertheless not pre)udiced. EIa31le: ,Non3litigated 0otion. / the defendant files a motion for e+tension of time within which to file the answer. Q. Foes #, the plaintiff have the right to resist this motion such that if he has, this motion cannot be heard unless he ,#. be first notified. A. # motion for e+tension of this is one, which the court can resolve e+ parte. 9eaning, without the presence of the adverse party. (hy' /ecause even though the court acts on the motion, it will not in anyway pre)udice the right of #. So, # may resist the motion. t is non<litigated. t can be heard without notice of #. (here, however, the motion is litigated, the court cannot validly act on the motion, without the previous notice on the adverse party, without giving the adverse party the opportunity to ob)ect therein. (hy' /ecause a litigated motion adversely affects the right of the adverse party. Consequently, unless the adverse party is notified of the hearing of that motion, the court cannot hear it, and if the court hears it, the hearing is void. EIa31leK , itigated 0otion. # vs. /. / files a motion to dismiss. %he court resolves his motion to dismiss without a prior notice given, the plaintiff #. Q. s the action of the court in resolving the motions without giving notice to # proper' A. Ao, because this is a litigated motion. Q. (hy is it litigated' (hat would be the effect if the court would now grant the motion to dismiss' A. %he complaint will be dismissed even without being heard. %his is not proper. %he hearing without notice of #, the plaintiff, will pre)udice #. (hy' /ecause had he been notified and would have ob)ected and his ob)ection may be considered by the court, then therefore, the motion to dismiss may be denied. So we say that in a motion to dismiss, # the plaintiff has the right to be heard or to resist the motion and unless the motion is heard in accordance with $ule -8, the court cannot validly rule on the motion. (hen a party files a motion for the admission of a pleading, that party must attach to the motion the pleading desired to be admitted. EIa31le: # vs. /. / files a motion to amend the complaint. %he amendment not being a matter of right so in this motion, # should already attach the copy of the amended pleading. %he advantage is this, the period for the filing of responsive pleading is shortened, unli3e the old rule, under the old rule, if a party wanted to file a motion for the admission of an amended complaint, he could file the amended complaint only after the court has already granted the motion. So, there will be considerable delay. Under the new rule now, no more, if you want the pleading to be admitted, attach that to your motion. A (otion (u&t +e &et for hearing not later than ten /#6. day& fro( the date of it& filing. So if the motion is filed Fec. -, -66;, the latest date this motion will be set for hearing is Fec. --, -66;. t could not be set Fec. -1, because it e+ceeds already. %his is if you follow strictly the rule. %here is one e+ception however to this rule, and that is a motion for summary )udgment. Under the rule on &u((ary ?udg(ent, the motion should be set for hearing in such a manner that a ten -><day period must elapse between the services of the motion to the adverse party and the date of the hearing. n other words, under the rule on summary procedure, you cannot set your motion for hearing earlier than ten days. t must done so within -> days. RENE NOTE%K

9inds o: Motions a. )otion e: parte P made without the presence of a notification to the other party because the question generally presented is not debatable b. )otion of course P where the movant is entitled to relief or remedy sought as a matter of discretion on the part of the court c) Litigated )otion P one made with notice to the adverse party to give an opportunity to oppose d. Special 1otion P motion addressed to the discretion of the court "eneral RuleK # motion cannot pray for )udgment EI<e1tionsK -. 9otion for )udgment on the pleadings 1. 9otion for summary )udgment 2. 9otion for )udgment on demurrer to evidence "eneral RuleK 93day notice rule<service of the copy of motions should be made in such a manner as shall ensure its receipt at least three days before the hearing EI<e1tionsK -. C+ parte motions 1. Urgent motions 2. 9otions agreed upon by the parties to be heard on shorter notice or )ointly submitted by the parties =. 9otions for summary )udgment which must be served at least ten days before its hearing X #ny motion that does not comply with sections =, 8 and 7 of $ule -8 is a mere scrap of paper, should not be accepted for filing, and if filed, is not entitled to )udicial cogni*ance and does not affect any reglamentary period involved for the filing of the requisite pleading. Rule 17K Motion to Dis3iss Q. (hen should a motion to dismiss be filed' A. #t anytime within the period for pleading but before the answer has been filed. "rounds o: Motion to Dis3iss are s1e<i:i<ally 3entioned on %e<. 1 -. lac3 of )urisdiction of the court over the person of the defendant 1. lac3 of )urisdiction of the court over the sub)ect matter of the case 2. improper venue =. lac3 of legal capacity of the plaintiff to sue 8. Litis pendentia 7. e+tinction of claim by reason of payment, abandonment, waiver or any other ground of e+tinction of the obligation :. the claim is barred by statute of fraud or barred by res )udicata ;. the action is barred by prescription 6. Ao cause of action ->. failure to comply with certain conditions precedents (ith respect to )urisdiction over the person of the defendant, you 3now very well that, unless the court acquire )urisdiction over the person of the defendant, the court cannot validly render a )udgment. There are t:o /8. :ay& the court (ay acAuire ?uri&diction over the per&on of the defendant : -. /y the issuance of the summons and its valid service on the defendant! 1. /y the voluntary appearance of the defendant before the court. (ith respect to voluntary appearances the voluntarines of the appearance may be manifested by the filing of the pleading with which a party see3s a relief other than the dismissal of the complaint based on lac3 of )urisdiction of the court over the persons of the defendant. EIa31leK # sued /. / was not summoned. Upon hearing, however, he was sued. So, he filed in court a motion for e+tension of time to file the answer. %he court granted the motion! / did not file the answer. %he plaintiff now moves that / declared in default. / opposes the motion saying that the court has not acquired )urisdiction over his erson because he was not summoned.

Q. s the contention of / correct' A. Ao, because when / filed a motion for e+tension of time to file the answer, he prayed for a relief and that is the e+tension of the time. /y so filing the motion, he voluntarily recogni*ed the )urisdiction of the court over his person. EIa31leK /, the defendant was not validly summoned. Ee nevertheless filed a motion to dismiss on the ground that the court has not acquired )urisdiction over his person. Ee prayed for the dismissal of the complaint. %he motion was denied. Q. s / deemed to have voluntarily submitted himself to the )urisdiction of the court by filing this motion to dismiss' A. Ao, because precisely he contested the )urisdiction of the court over his person. Let us assume in this e+ample that / files a motion to dismiss on several grounds, the foremost of these is that, the court did not acquire )urisdiction over his person because no valid summons was served on him. n addition to this ground, he also invo3e the following: -. the venue is improperly laid! 1. the facts alleged in the complaint do not constitute a cause of action. Q. %he motion was denied, is / deemed to have submitted himself to the )urisdiction of the court' A. Ao, where the motion to dismiss is based on lac3 of )urisdiction of the court over the person of the defendant, because he was not validly summoned, but in addition to this ground he adds other grounds, the filing of the motion does not amount to a submission of himself to the )urisdiction of the court. Under the old rule, if a defendant files a motion to dismiss, on the ground that he was not validly summoned and therefore the court has never acquired )urisdiction over his person, and in addition, added other grounds such as improper venue or failure of the complaint to state the cause of action, he is deemed to have submitted himself to the )urisdiction of the court. Q. (hat is meant by, Ilac3 of )urisdiction of the court over sub)ect matter of the caseJ' A. ?urisdiction of the court over the sub)ect matter of the case simply means that the court has under the law the authority to decide that particular case. ?urisdiction is conferred by law. See /.P. /lg. -16 %he ?udiciary $eorgani*ation #ct of -6;> as amended. Sec. -6 Cnumerates the cases triable by $%C Sec. 22 Cnumerates the cases triable by inferior court (here, therefore a court tries a case which is not among those enumerated under the law as within the competence to try, we say that the court has no )urisdiction over the sub)ect matter and therefore that is a ground to dismiss. EIa31leK Under /.P. -16 Sec. 22 as well as under $ule -: and under the $ule on Summary Procedure, an action for forcible entry and detains is triable e+clusively by the 9%C. # sued / for forcible entry. Ee files this in the $%C. Q. s / here within his rights to file a motion to dismiss based on the ground of lac3 of )urisdiction of the court to try the case' A. yes Q. # vs. /, filed a suit for declaration of nullity of marriage. %his was filed in the 9%C. /ut an action for declaration of nullity of marriage is one triable by the $%C. /, now can file a motion to dismiss. A. Hes Q. 9ay there be a situation when a court does not have )urisdiction over the sub)ect matter of the case and yet the court can validly try and decide the case' A. Hes, there is such a thing as Ie&toppel +y lache& in ?uri&dictionD* (hen does the court not have )urisdiction but it can decide validly the case. %his is best illustrated in the case of Ti?a( v&* Si+unghanay. %his case, # suit was filed by # against / in CB of 9anila to recover an amount. %he amount sought to recover was one within the )urisdiction of the 9%C, but the parties went to trial. Ao one raised the question of lac3 of )urisdiction of the court. So the case was decided in favor of #. %he )udgment became final. %he )udgment sought to be against C was acted as surety of /. C resisted the action. Ee went to

trial never raising the question of lac3 of )urisdiction of then CB of 9anila. C allowed the case to be tried as against him to enforce his liability as a surety of /. C elevated the matter to the C#. C# affirmed the )udgment of CB against C. C filed a motion for reconsideration. FeniedZ t was only thereafter that he now files a motion questioning the )urisdiction of the court to decide the case. $eason: CB of 9anila did not have )urisdiction to render a )udgment because the sub)ect matter was within the )urisdiction of the 9%C not the CB . %herefore, C argued that )urisdiction can be raised at anytime on appeal. C# denied. %he matter reaches the SC. ssue: (hether the )udgment of CB affirmed by C# is valid' SC ruled that the )udgment is valid. $eason: (hile it is true CB has no )urisdiction to try the case, the parties went to trial without raising the question of )urisdiction and because of the long passage of time between the rendition of the )udgment and the time the motion questioning the lac3 of )urisdiction was raised, was already too long. C is estopped already to question the lac3 of )urisdiction of the CB . n another case, )udgment was rendered by the trial court. %he amount involved is more than P1>>,>>>. / appealed to C#. #, the prevailing party, went to C# have this appeal litigated. #t the time of the appeal, )urisdiction over cases involving more than P1>>,>>>. is lodged with SC. # now contented that the appeal of / would not be entertained by C# for lac3 of )urisdiction of C#. SC ruled that because of the doctrine of estopped by laches, # by agreeing that that this appeal be litigated in C# is estopped to question the appellate )urisdiction of C#. Eere is now the motion to dismiss by / filed in this case of #. / here is the movant. Q. (hat are the requirements' A. #ll the grounds enumerated under $ule -7 as grounds for motion to dismiss must be averred in the motion to dismiss. &n the strength of the omnibus motion rule. So, if you have five ,8.,you must allege all of them, because if you do not allege all the others already available but not raised are deemed waived. So, if you have five ,8. grounds and you raised only three ,2., the remaining two ,1. are deemed waived. %herefore, they cannot be proceeded after the motion is filed. &f course # has a right to oppose. Ee can file his opposition. %he trial of the motion to dismiss may require the presentation of the evidence of the movant. So, / may present his evidence to support his motion. # may also adduce his evidence. %herefore, the court will resolve the case. %he court may either order the amendment of the complaint or dismiss the complaint. f he dismisses, it means it grants the motion to dismiss. t cannot defer ruling on a motion to dismiss on the ground of the motion is not indubitable. Under the old rule&, the court could defer ruling on a motion to dismiss of the ground that the basis therefore is not indubitable. Thi& i& not no:. %he court must, ta3e positive stand to order amendment, grant the motion or deny the motion. Let us assume however that instead of filing a motion to dismiss, the defendant files an answer. Q. (hat is the defendant allowed to do if he files an answer with respect to the grounds of a motion to dismiss' A. %he rule is, the defendant may allege in his answer as defenses all the grounds of a motion to dismiss. n our e+ample /, instead of filing a motion to dismiss, he filed an answer. f in the answer he alleges as defenses the grounds for a motion to dismiss, for instance, improper venue, or lac3 of legal capacity. Q. Can / prove this ground alleged in his defenses even before # presented evidence' A. Under $ule 2> on %rial, it is the plaintiff who starts presenting the evidence. t is not the defendant. Unless for some valid reasons the court may order the trial to be reversed. Q. /ut in this case, without reverse order of trial under $ule 2>, may / be allowed to prove his defenses even before # has proven his case' A. Hes. / after filing the answer, he may now file a (otion for a preli(inary hearing on the defen&e&* t is as if he filed a motion to dismiss. f the motion for preliminary hearing the evidence of # can now receive the evidence of / with respect to those defenses. Eowever, the court will grant the motion for a preliminary hearing on the defenses is a (atter of di&cretion on the part of the court. t is not a right of the defendant. t is a matter governed by the discretion of the court. %herefore, the court can grant the motion and in this case, it will receive evidence on the defenses or it may deny hearing. Supposing the motion to dismiss was heard during which the parties presented their evidence and the motion to dismiss is denied.

Q. (hat is the effect of the denial on the evidence of the parties adduced during the hearing of the motion' Bor instance, during the hearing of the motion, / presented G, H and T and # presented C, F and C, the motion to dismiss was denied. (hat becomes now the testimony of G, H and T, C, F and C' %he rule is their testimonies will be deemed reproduced automatically during the trial on the merits of the case. Let us assume in this e+ample, the court have the defenses founded to be established, the case will dismissed even without # having presented his evidence. Let us suppose that in the answer, / pleaded a counterclaim against #. Q. (hat becomes the counterclaim with the dismissal of the complaint of #' A. (here a complaint is dismissed, the counterclaim is automatically dismissed. &n the theory that a counterclaim derives its life from the complaint. %his means if the complaint no longer e+ist, there is no longer any legal basis, which a counterclaim is supposed to stand. %his is the old rule* %he ne6 rule now is,:here the defendant alleged a& defen&e& in hi& an&:er ground& for a (otion to di&(i&& i& granted , the counterclai( pleaded in the an&:er i& not di&(i&&ed* The di&(i&&al i& li(ited to the co(plaint* Thi& (ean& therefore that, even though there i& no longer any co(plaint, :hich :ill &erve a& the +a&i& of a counterclai(, the counterclai( &urvive& the di&(i&&al* Q. f the counterclaim can subsist, in what proceeding can it be prosecuted considering that the main case is already been dismissed' A. Fon"t worry, because the law has given the defendant two ,1. options: -. he can move the counterclaim be litigated in the same case! or 1. / may file an independent civil case based on that counterclaim. Q. f the motion to dismiss is granted, can the plaintiff re<file the case'

Supposing the complaint was dismissed on the ground of improper venue, the complaint does not state the facts constituting a cause of action. Q. Can the case be re<filed' A. %he rule is, depending on the ground of the motion to quash, that where the dismissal of complaint arising from a grant of a motion to dismiss may bar the re<filing of that case in the following cases: -. res )udicata 1. unenforceability of the contract to the bond based on the Statute of frauds 2. the claim has been paid, abandoned or waived or otherwise e+tinguished =. Prescription n all these cases, the order of dismissal is res )udicata. t becomes final. %he action cannot be revived. &n the other hand, if the ground of the motion to dismiss is other than any of these grounds already mentioned, the order dismissing is not res )udicata, therefore, the same complaint may be re<filed. Q. (hen the motion to dismiss has been denied, within what period should the defendant filed the answer' A. Under the old rule, the defendant was given anew -8 days from receipt of the order denying the motion to dismiss. n other words, he was given a new period of -8 days. %his is not the rule now. Under the ne: rule&, he shall be granted a period representing the balance of the period following the IserviceJ of the motion. Hou no longer count the period from the day you filed the motion to dismiss. Hou count now the period from the date the motion to dismiss was served. ,?udge Lagui was wondering whether this could have been an error. %his word IserviceJ could have been meant IfilingJ because it is the usual period. Loo3 at $ule -1, when motion of a /ill of Particulars is denied and that the defendant is to answer, the remaining period is counted from the balance of the pleadings counted from the day he IfiledJ the moiton. ook at %e<. ? Rule 17 !f the (otion i& denied, the (ovant &hall file hi& an&:er :ithin the +alance of the period pre&cri+ed +y Rule ## to :hich he :a& entitled at the ti(e of H&ervingD hi& (otion, +ut not le&& than five /5. day& in any event, co(puted fro( hi& receipt of the notice of the denial* !f the pleading i& ordered to +e a(ended, he &hall file hi& an&:er :ithin the period pre&cri+ed +y Rule ## counted fro( &ervice of the a(ended pleading, unle&& the court provide& a longer period .

(ould not this word IservingJ meant IfilingJ. f we apply literally this provision, the situation would be li3e thisV EIa31leK # vs. /. / was summoned Fec. ;, -66;. Under $ule -- Sec. -, / has a period ending Fec. 12, -66; within which to file the answer. Ee ,/. filed his motion to dismiss on Fec. -8, -66; but served a copy of that motion on # on Fec. -:, -66;. %he motion to dismiss was denied in an order dated ?an. ->, -666. / served this order on ?an. -8, -666. Q. So, within what period should / file the answer' A. f you apply $ule -7, Sec. =, you count the period from Fec. -:, -66;. So, if that is the case, he would have only 7 days counted from ?an. -8, -666 so the end would be on ?an. 1-, -666. /ut if you"re counting on the date of filing of the motion, he had eight ,;. days. So ; days would give you until ?an. 12, -666. ,?udge Laggui is still wondering up to this very moment you are reading this note whether this word IservingJ would have been an error. t could have meant IfilingJ because the usual counting of the period starts from the date of filing, not the date of serving. #ll other provision of the $ules ma3e the IfilingJ the basis, not IservingJ. %his is only the provision which ma3es the starting point Ithe date of serviceJ. /ut we have to follow because there is no reason why we should not follow.. /ut in all events, irrespective of the number of days left, the minimum is five ,8.. So that in our e+ample, if we apply this rule, he ,/. furnished a copy on # Fec. 12, -66;, there was no day anymore left of the original -8<day period. So, when he received the order of denial on ?an. -8, -666, he ,/. can still file the answer within five ,8. days from ?an. -8, -666 or on ?an. 1>, -666. (here the evidence of the parties is received in support of the motion to dismiss andOor support of the position to the motion and the motion is denied, and the trial should thereafter proceed. Q. (hat now becomes of the evidence received during the hearing' A. Cvidence will be automatically reproduced as evidence of the parties during the trial of the merits of the case. %hat means to say therefore, G, H and T, who testified on the motion to dismiss, when court decides the case on the merits, the court can consider the testimonies of G, H and T even though G, H and T no longer appear during the trial on the merits of the case. RENE NOTE%K MOT!ON TO D!%M!%% &NDER R& E 17 X grounded on preliminary ob)ections X may be filed by any defending party against whom a claim is asserted in the action. X should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him. MOT!ON TO D!%M!%% &NDER R& E 66 Fde3urrer to eviden<e8 X based on insufficiency of evidence. X may be filed only by the defendant against the complaint of the plaintiff. X may be filed only after the plaintiff has completed the presentation of his evidence.

E::e<t o: 3otion to dis3issK < # motion to dismiss hypothetically admits the truth of the facts alleged in the complaint. Eowever, such admission is limited only to all material and relevant facts which are well pleaded in the complaint. X #n action cannot be dismissed on the ground that the complaint is vague or indefinite. %he remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. EFFECT% OF ACT!ON OF MTD -. &$FC$ @$#A% A@ motion to dismiss is a final order 1. &$FC$ FCAH A@ the motion to dismiss is interlocutory REMED$ -. appeal from the order of dismissal 1. certiorari and prohibition if there is grave abuse of discretion amounting to lac3 or e+cess of )urisdiction

Rule 14K Dis3issal o: A<tions Q. (hat are the situations covered by Sec. -, 1, 2, and =' A. %he situations covered by $ule -: are dismissal of a complaint or a counterclaim or a cross<claim or of a complaint in intervention or of a third<party complaint. %e<. 1 contemplates a situation where the plaintiff initiates the dismissal of the action. %e<. 5 covers the situation where the plaintiff still initiates the dismissal of the action, which is different, whereas under Sec. -, he can dismiss as a matter of right without court authority. n Sec. 1, he cannot dismiss without court authority. !n %e<. 6, it is a dismissal of the action of the plaintiff either at the instance of the defendant or at the instance of the court. !n %e<. ?, it is the dismissal of the counterclaim or cross<claim. Q. Eow does Sec. - operate' A. %here are two ,1. situations covered: %he rule says, that anyti(e +efore an an&:er or a (otion for &u((ary ?udg(ent ha& +een &erved on the plaintiff, the plaintiff (ay di&(i&& hi& action +y filing a notice of di&(i&&al* Q. (hat is the effect of this notice of dismissal' A. %he notice of dismissal produces a dismissal without pre)udice. %his means that plaintiff can re<file the case. Q. (hen can he not re<file the case by reason by his having filed a motion of dismissal' A. (hen in his notice of dismissal he started that the dismissal is with pre)udice. Eowever, the rule says, where the plaintiff has filed a notice of dismissal but he previously filed a notice of dismissal. %his means to say that he filed a notice of dismissal for the second time. Q. (hat does the rule say' A. %he dismissal filed for the second time produces a dismissal with pre)udice. t means to say that, where the complaint is dismissed for the second time because of a notice of dismissal filed the second time, the dismissal is with pre)udice. %his means to say therefore that the plaintiff cannot re<file the action for the third time .FT)O D!%M!%%A R& E8 Q. (hat is the action that the court must ta3e when a notice of dismissal is filed' (ill it order the dismissal of the complaint' A. Ao. #ll that it does is to issue an order confirming the fact that the plaintiff dismissed the complaint. Under the old rule&, the court was not required to do anything upon the filing of the notice of dismissal. (hy' /ecause the filing of the notice of dismissal automatically dismisses the complaint. #nd so, if you did not 3now $ule -: and you went over the record of the case where a notice of dismissal was filed, you would not 3now what is the status of the case. /ut in this innovation now requiring the court to issue an order confirming the dismissal. # person goes over the record will now 3now what happened with his case. /ecause with that confirmation, it would now be clear that the case was dismissed. EIa31leK Fec. -, -66:, # filed an action against / who was summoned Fec. 8, -66:. Under Sec. - $ule --, / has until Fec. 1>, -66: within which to file the answer. Let us assume that / filed the answer on Fec. -8, -66:. Eowever, on Fec. -7, -66:, # filed a notice of dismissal. Q. Could # file his notice of dismissal on Fec. -7 considering that the answer was filed on Fec. -8' A. Hes, because it ,answer. was not yet served. t was served only on Fec. -:. Q. (hat is the effect of this dismissal of #' A. t is a dismissal without pre)udice e+cept when the notice of dismissal stated that it is with pre)udice. Q. &n Fec. -7 when the notice of dismissal was filed, what happened now with the complaint filed on Fec. -' A. t is automatically dismissed.

Q. Foes the court have to the order the dismissal' A. Ao. #ll that the court has to do is to confirm the dismissal. /ut there will be no legal ob)ection if the court issues an order not only confirming the dismissal but also an order of dismissal. t is unnecessary. Fec. 1>, -66:, # re<filed the same case. / was summoned on ?an. ->, -66;. / now filed the answer ?an. 1>, -66;. / has a period until ?an. 18, -66;. Eowever, / served on #, a copy of the answer on ?an. 18, -66;. &n ?an. 11, -66;, # filed the second notice of dismissal. Q. (hat is the effect of the second notice of dismissal' A. t is a dismissal with pre)udice. Q. Supposing in the notice of dismissal filed on ?an. 11, # said it is with pre)udice, will the resulting dismissal be also without pre)udice' A. A&, because it is not for the plaintiff to characteri*e the effect of the dismissal as provided by law. Q. (hy is the dismissal with pre)udice now' A. /ecause Sec. - says , a di&(i&&al produce& a di&(i&&al :ith pre?udice if filed +y a per&on :ho previou&ly filed a notice of di&(i&&al. %his is now a dismissal with pre)udice regardless of what # stated in the notice of dismissal. Q. Supposing the court issued the order saying that the dismissal is without pre)udice, is that order valid' A. Ao, because the court cannot characteri*e the effect of the second dismissal. %he law provides the effect. t is always a dismissal with pre)udice. 9arch ->, -66;, # filed a case against /. / now files a motion to dismiss on the ground of res )udicata. Ee now says Ithis third complaint is barred by res )udicata. %he second dismissal produced by the filing on ?an. 11, -66; is a dismissal with pre)udice. Q. s the contention of / correct' A. Hes. %his must be now dismissed because this is barred by the second dismissal. %his section embodies the so<called QTwo Dis3issal RuleJ. %e<. 5 Rule 14 is still a dismissal at the instance of the plaintiff, however its dismissal is no longer a matter of right. f ever any dismissal is granted, it must be on application of the plaintiff and upon approval of the court. Q. (hen may a plaintiff dismiss his action with leave of court' A. #fter a responsive pleading have already been served on the plaintiff or after a motion for summary )udgment has already been served on the plaintiff. Ee can no longer dismiss as a matter of right. Ee can dismiss it only upon application of the plaintiff and upon approval by the court of the motion. /ut the dismissal under Sec. 1 $ule -: even if granted by the court, maybe sub)ect to certain conditions that the court may impose. Q. (hat is the effect of the dismissal under Sec. 1 $ule -:' A. t is still a dismissal without pre)udice unless the court provides otherwise. Q. Should a compulsory counter<claim be pleaded in the answer, what would be the effect of the dismissal under Sec. 1 $ule -: on the counterclaim' A. %he counterclaim is not dismissed. Q. n what proceeding may it therefore be prosecuted' A. t may be prosecuted in the same case provided that within -8 days from receipt of motion to dismiss, the plaintiff manifest to the court that he desires that the counterclaim be litigated in the same case, otherwise, the counterclaim maybe litigated in a separate action. EIa31leK Q. / either serve on # his answer or his motion for summary )udgment on Fec. ->, -66;. &n Fec. -8, -66;, # now files a motion of dismissal without leave of court. Can he validly do that' A. Ao. Q. /ut can he still file it'

A. Hes, but with a proper motion that he be allowed to dismiss. %hat motion maybe granted by the court. f the court grants it, the court may impose a condition for the dismissal. Q. (hy is it no longer a matter of right on the part of the plaintiff to file a notice of dismissal after he has been served the answer or a motion for summary )udgment' A. (here / has a counterclaim, / has a right to have that counterclaim be litigated and resolved. So, if he ,/. ob)ects, the court may grant the motion but sub)ect now to the dismissal of the action. Q. (hat would be the effect of a motion of # to dismiss his complaint' A. f the motion is granted on the counterclaim the dismissal of the action is limited to the complaint. %he counterclaim is unaffected. /, therefore, can litigate the counterclaim either in the same case or / may file in a separate action to enforce the counterclaim. Q. (hen may / prosecute his counterclaim in the same case' A. f within -8 days from receiving the notice of dismissal, he manifests to the court that he desires that his counterclaim be litigated in the same case, otherwise, the counterclaim must be litigated in a separate action. %his Sec. 1 $ule -:, with respect to the effect of the dismissal on the counterclaim traces its rules to the case of ,*A* <inance v&* CA <act&: #, the corporation sued /. &n pre<trial, # failed to appear. &n motion of /, # was declared non<suited and the complaint dismissed. #fter the dismissal of the complaint, / now moved that a date is set on the reception of his evidence on the counterclaim. ,9otion for Eearing on the Counterclaim. # opposed the motion on the ground that, under the rules and )urisprudence then obtaining, the dismissal of the complaint carries with it automatically the dismissal of the counterclaim. %he theory being that, a compulsory counterclaim derives its life from the complaint. f the complaint therefore no longer e+ist, there is no longer any basis for the counterclaim to subsist. %he $%C sustained the opposition applying the rule then. / now elevated the matter to C#, questioning the order of the $%C. C# ruled that the order was wrong. 9eaning in substance, that the dismissal of the complaint of # and / could no longer litigate and prove his counterclaim. So the dilemma cause by this ruling is thisV (hat then would be the remedy of a defendant with respect to his counterclaim if the complaint is dismissed' %here can be no way by which the defendant<counterclaimant can prosecute his counterclaim. %his was an obiter dictum. ,%his is not the ruling of the court, it"s a side issue.. )u&tice ,ello&illo, the ponente suggested this remedy. (here the complaint is dismissed, and the defendant has a counterclaim, this should be the procedure to be adopted by the defendant. So that he can prosecute his counterclaim. Simply, that the plaintiff be declared Inon<suited.J Q. (hat is the effect of a non<suit' A. %he plaintiff cannot prove his complaint. /ut the complaint subsists. t is there but it cannot be proven. Fo not move for the dismissal of the complaint. Q. (hat ne+t should be done by / following the declaration of non<suit of the plaintiff' A. Ee should now move that #, the plaintiff be declared as in default with respect to the counterclaim. Under the old rule then ,Sec. 1 $ule 1>., the failure of a defendant to appear for a pre<trial may be a ground to declare him as in default with respect to the counterclaim. So, the defendant with respect to the counterclaim is #. Since # did not appear for the pre<trial, he may now be considered as having failed to appear for the pre<trial on the counterclaim. (hat / should do here is to move that # be declared as in default with respect to the counterclaim. f # now be declared as in default with respect to the counterclaim, the ne+t move of / now is to prove with his evidence his counterclaim. (hy' /ecause # is merely non<suited, the complaint is there, it is not dismissed. # cannot only prove it, but it is there. So, with the complaint still subsisting although it can no longer be proven, there would still be a basis for the counterclaim. %his is the basis of this rule now that the dismissal under Sec. 1 $ule -: of the complaint does not operate as a dismissal without pre)udice unless either the plaintiff manifest in his motion that the dismissal be with pre)udice or that the court orders that the dismissal is with pre)udice. (hen you say Iwith pre)udiceJ, it means that the complaint cannot be received or re<filed. %his is the concept of dismissal under Sec. 1 $ule -:. Q. (hat is the dismissal under %e<. 6 Rule 14O

A. %his time, the dismissal is no longer at the instance of the plaintiff. t is now at the instance either of the defendant or of the court itself. T-ere are t-ree * ) grounds for a dis1issal under Sec. Rule 1'@ -. the failure of the plaintiff to appear for hearing on a day during which he is supposed to present his evidence in chief on his complaint! 1. the failure of the plaintiff to prosecute for an unreasonably period of time his action! 2. the failure of the plaintiff to comply with this $ules or with the order of the court. Q. (hat is the nature of dismissal under this case' A. # dismissal under Sec.2 $ule -: is a dismissal with pre)udice unless the court provides otherwise. (hen the dismissal order is not qualified, it simply says that the complaint be dismissed pursuant to Sec. 2 $ule -:, the dismissal is with pre)udice. %a3e note that the absence of the plaintiff for a hearing is not in itself a ground for a dismissal under Sec. 2 $ule -:. t is an absence during the hearing during which he is supposed to present his evidence in chief on his complaint. Eis absence on any other hearing is not a ground for dismissal under Sec. 2 $ule -:. EIa31le: Bollowing the pre<trial, the case was set for hearing on Fec. ->, -66;. # received the notice of hearing. &n this day ,Fec. ->., he is supposed to present his evidence in chief, meaning, his initial evidence on his complaint. Ee does not appear for the hearing on this day without valid reason. Under Sec. 2 $ule -:, the court can dismiss the action of #, or on motion of /, the court may dismiss the action. Q. Supposing on the hearing on Fec. ->, -66; is for the reception of evidence of / or the reception of the rebuttal evidence of #, but # was not present on this day, may the complaint of # be dismissed under Sec. 2 $ule -:' A. Ao! for the simple reason that it was no longer his turn to present the evidence in chief on this day. t was the turn of /. %he complaint cannot be dismissed because this situation presupposes that # already presented his main evidence, or his evidence in chief, or part of his evidence in chief. /ecause let us assume that # did not finish his presentation of his initial evidence in chief. Subsequently, he was absent and the motion of the defendant the court ordered that the presentation of the evidences of the plaintiff so he was unable to complete, but he had partially produced his evidence. Q. Can the action now be dismissed' A. Ao. Supposing on Fec. ->, -66; # was supposed to present his rebuttal evidence, but he did not appear. Q. 9ay his action now be dismissed' A. Ao, because his absence amounts merely to a waiver of the presentation of his rebuttal evidence. Ee already produced his evidence in chief, which will be the basis of that )udgment The failure of plaintiff to pro&ecute for an unrea&ona+ly long period of ti(e* $emember that under $ule -;, after the last pleading has already been filed, it is the duty of the plaintiff to move e+ parte for a pre<trial to be held. t is no longer the duty of the cler3 of court under the new rules to set the case for pre<trial. t is now the duty of the plaintiff to see to it that after the last pleading has been filed, a pre<trial be held. f the plaintiff does not move to set for pre<trial case following the filing and service of the last pleading and the intervening period between the filing and service of the last pleading and the inaction of the plaintiff and in the view of the court unreasonable, then the court motu proprio may dismiss the action, or on motion of the defendant, the action may be dismissed. &r, a trial has been set following a pre<trial, but the trial on the merits is postponed, no fi+ed date was set in the order of the court, # simply waits for the court to set the case for hearing. Ee does not reset it but still remain unconcern the action may be dismissed. Q. Eow long a period of time should elapse following the filing of the complaint in order that the inaction of the plaintiff to prosecute it may be considered an inaction for an unreasonably long period of time' A. %here is no fi+ period considered as reasonable. Cach case must have to be determined according to the peculiar circumstances of the case. So, in some cases of an inaction for a year would be unreasonable. %here is no fi+ period. t depends upon the appreciation of the court according to its peculiar circumstances. The failure of the plaintiff to co(ply :ith the rule& /Rule& of Court. and :ith the order of the court*

Hou don"t reali*e how potent a weapon is this in the hands of the court because orders are meant to be carried out, or to be implemented. %hey are commands from the court and therefore should not be ta3en lightly. Q. So, what are the penalties' A. %a3e for instance this actiona+le docu(ent&. Under the rule, where an action or defense is placed in an actionable document, a copy of that document must always be attached to the pleading or the te+t of the document should be quoted verbatim in the pleading without the necessity of attaching to the pleading a copy thereof or an action based on an actionable documents. (hen there is no compliance with this rule such that neither is the te+t of the document quoted in the pleading nor a copy of the document is attached to the pleading, this is a plain violation of the rule on actionable documents. So, under Sec. 2 of $ule -:, this failure of the plaintiff to comply with the order of the court may give rise to dismissal. %a3e note, however, that the order referred to it must be a lawful order. &ne that is authori*ed by the $ules. /ut this is not a requirement. RENE NOTE%: Two Dis3issal Rule X %he second notice of dismissal operates as an ad)udication on the merits, when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim < also applicable to special proceedings X %he court is not required to issue an order of dismissal but is required only to issue an order confirming the fact that the plaintiff dismissed the complaint. ,);en voluntary dis3issal a11li<a/leK -. /efore a responsive pleading is served 1. /efore a motion of summary )udgment is served 2. f none, before introduction of evidence at trial or hearing %ECT!ON 5 -. dismissal is at the instance of the plaintiff! 1. dismissal is a matter of procedure, without pre)udice unless otherwise stated in the order of the court or on plaintiff"s motion to dismiss his own complaint! 2. dismissal is without pre)udice to the right of the defendant to prosecute his counterclaim in a separate action unless -8 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action. R& E 1DK PRE,TR!A EIa31leK # -. Complaint %ECT!ON 6 -. dismissal is not procured by plaintiff though )ustified by causes imputable to him! 1. dismissal is a matter of evidence, an ad)udication on the merits! 2. dismissal is without pre)udice to the right of the defendant to prosecute his counterclaim on the same or separate action.

/ -. #nswer to #"s complaint 1. Counterclaim against # 2. Cross<claim against C

C -. #nswer to #"s complaint 1. Counterclaim against # 2. #nswer to /"s cross< claim

F -. #nswer to /"s third party complaint 1. #nswer to C"s third party complaint 2. Counterclaim against /

=. %hird party against F ,#fter these, the pleadings are filed.. 1. #nswer to counterclaim 8. $eply to #"s answer to of / counterclaim 2. #nswer to C"s 7. $eply to C"s answer to counterclaim cross<claim :. #nswer to counterclaim of F

8. $eply to #"s answer to counterclaim 7. #nswer to /"s cross< claim

=. $eply to the answer of the counterclaim

Q. s there any other pleading required to be filed after these pleadings have been filed' A. Aone. So, the case is now ready for pre<trial.

Q. Supposing the last pleadings required are not filed, with the period of filing thereof already e+pired, may the pre<trial be held' A. Hes. %he rule is this, pre<trial may be held upon the filing of the last pleading without the last pleading having been filed. (here the last pleading has not yet been filed, and the period for filing thereof does not yet e+pire, pre<trial is premature. Q. (hat things shall be considered in pre<trial' A. %hey are specified in the rules. Under the -ld Rule, it was the duty of the Cler3 of Court to set the case for pre<trial upon the filing of the last pleading or the e+piration of the period for the filing thereof. %his rule is no longer obtains. %he rule now is, the duty to (ove that the pre3trial +e &et, i& no: lodged :ith the plaintiff* Q. (hat are the things to be considered during the pre<trial' A. %here is a enumeration in the Code. Substantially, they are as follows: to consider the possibility of a settlement of the case! to consider the possibility of stipulations of facts to be arrived at! the possibility of the rendition of a )udgment on the pleading or of a summary )udgment the limitation of the issues! the mar3ing of the e+hibits! stipulations of as to waiver of ob)ections to documentary e+hibits that may be presented! and all other matters that may lead to speedy disposition of the case. %he preli(inary purpo&e of pre3trial is to terminate as soon as possible a case so that if a case can be settled during the pre<trial, so much the better, but there is no such settlement, that stipulations that may be agreed upon, the mar3ing of e+hibits, the waiver of ob)ections to the admissibility of e+hibits, the limitations of the issues will all contribute towards the early disposition of the case. Noti<e: Bor purposes of the pre<trial, the parties must be notified of the pre<trial date. f they are represented by a counsel, there is no need for the parties to be notified. (hy' /ecause in this case, their respective counsel will be the one to be notified of the pre<trial and it is now the duty of the counsel to notify their respective clients of the pre<trial. Q. (hy is there a need for the presence of the parties during a pre<trial' A. /ecause, among the many purposes of a pre<trial is to allow the parties to sit down together and enter into a settlement if they can. Aormally, a lawyer cannot enter a settlement on behalf of their clients unless they are specifically armed with written authority. So, only the parties can agree on the settlement. %his is the reason why they must be present. Q. Supposing a party is notified of a pre<trial but does not attend the pre<trial, but his lawyer does, will the action now of the plaintiff or defendant for that matter during the pre<trial carry with it a sanction against the absent party' A. EIa31leK # vs. /. # was notified of the pre<trial. # was not present during the pre<trial, but lawyer, #tty. G, was. Q. (hat is the sanction against #' A. Eis complaint may be dismissed with pre)udice. Supposing it is / who was absent, his lawyer, #tty., H was present. Q. (hat is the sanction against /' A. %he plaintiff # will now be allowed to present his evidence e+ parte, meaning in the absent of defendant /. Let us reverse. # was present during the pre<trial, but his counsel, #tty. H was not.

Q. (ill the absence of the counsel now entitle / to present his evidence' A. Ao. Q. Supposing / was present, #tty. H was not, will that now allow # to present his evidence' A. Ao. !t i& the a+&ence of the partie&, not their re&pective coun&el& that (ay give ri&e to the i(po&ition of the corre&ponding &anction again&t the a+&ent party* Q. 9ay there be a situation, however, where a party can be absent from a pre<trial and yet the absence will not give rise to the corresponding sanctions' A. Hes. (hen the absence of the party is )ustified or when the absent party is represented by a person who is duly authori*ed in writing to act for the party for purposes of pre<trial. So, if # cannot personally appear, he may commission another person to appear for him for purposes of the pre< trial. Bor instance, his lawyer may appear for him provided that #tty. G carries with him a written authority. n the same way if / is not present, he can appoint a third person. Ee may appoint his lawyer, #tty. H to act for him, provided #tty. H carries with him a written authority. Q. s it enough that the person authori*ed carries with him a written authority in order that he can validly appear for the litigant for purposes of pre<trial' A. Ao. /ecause the written authority must specify these three ,2. specific powers of the agent. So if # appointed #tty. G as his agent for purposes of pre<trial or if / appoint #tty. H as his agent for purposes of pre<trial, the power of attorney of #tty. G or #tty. H, must state the following: that G or H is authori*ed to the following ,G for # or H for /.: -. the authority to settle the case by way of a compromise! 1. the authority to enter into stipulations of facts or admission of documents 2. the authority to submit the case to other alternative modes of disputes resolution. The :ritten authority (u&t &pecify the&e three /9. authoritie&, other:i&e, the :ritten authority i& inco(plete for purpo&e& of pre3trial. So, if an agent appears for the plaintiff or a defendant with a written authority, but the written authority does not specify all these three ,2. authorities, this written authority is incomplete and he cannot legally appear for the plaintiff or defendant, as the case may be. Q. (hat is the sanction against the failure of a party to appear a pre<trial' A. f it is the plaintiff who is absent and the absence is un)ustified or that he has no authori*ed agent, the sanction is this his complaint is dismissed with pre)udice. f it is the defendant who is absent, the sanction is, the plaintiff is allowed to present his evidence e+ parte, meaning in the absence of #. %he natural consequence of this isV if / has any counterclaim, then the counterclaim, will be dismissed because of his ,/. action. %a3e note that during the pre<trial, the rendition of a )udgment, summary in character or the rendition of a )udgment on the pleadings may be proper. Q. Can the court immediately following the pre<trial render a summary )udgment or a )udgment on the pleadings' A. %a3e note that what the $ules authori*ed to be done during the pre<trial is only to consider the possibility, not that the court will immediately render a summary )udgment or that the court will render a )udgment on the pleading. (hy' /ecause there are requirements before a )udgment summary in nature or a )udgment on the pleadings can be rendered to be complied with. Bor instance, in the case of a )udgment on the pleading, there must be a motion filed for the rendition of a )udgment. Li3ewise in the case of a summary )udgment under $ule 28, there must be a motion for the rendition of a summary )udgment. So, the court cannot immediately following a pre<trial, render a )udgment on the pleading for a )udgment summary in nature. %here must first be a hearing in accordance with the pertinent rules.

Pre,trial Brie: %he rule requires that the parties must file a pre<trial brief. Q. (hat is the sanction against the failure of a party to file a pre<trial brief' A. %he rule says that, the failure to file a pre<trial brief may be given the effect the failure of a party to appear for a pre< trial. So, when the plaintiff for instance does not file its pre<trial brief, his complaint may be dismissed. f the defendant does not file his pre<trial brief, the plaintiff will be allowed to present his evidence e+ parte. %his is the sanction. Q. (hen must the pre<trial brief be filed' A. # pre<trial brief must be filed at least three ,2. days before the pre<trial. 9eaning that, at least three ,2. days before the pre<trial, the pre<trial brief must have already been filed and served on the adverse party. %a3e note also that a pre<trial brief requires certain matters to be specified therein. #mong others , the follo:ing are reAuired to +e &tated in a pre3trial +rief: -. the numbers of witnesses of a party! 1. the gist of the proposed testimony of a witness! 2. copies of documents that may be offered for admissions! =. the pre<trial brief must state the purpose for which the documents are offered. %his requires that the gist of the testimony of a witness or that copies of documents intended to be submitted in evidence attached to the pre<trial brief is requirement that finds the )ustification in $ule -21. $ule -21 requires that before a witness testify, the purpose of the offer must be specified and that no evidence shall be admitted unless it is formally offered and the purpose of the offer is )ustified. %his is the basis of this requirement. So, the pre<trial brief must include the gist of the testimony of a witness or the purpose for which the documents are offered in evidence. Bollowing the inclusion of a pre<trial, the court is required to issue a corresponding pre<trial order. Q. (hat is a pre<trial order' (hat is its importance' A. %he pre;trial order is a resum\ of what transpired during the pre<trial. n effect, it is a summary of what happened. f there are stipulations in the pre<trial, those stipulations are reflected in the pre<trial order. Q. (hat is the importance of a pre<trial order' A. %he pre<trial order governs the subsequent course of the trial so that, the trial will be limited only to those issues that have been raised in the pre<trial order. (hile this $ule -; does not e+pressly state that the pre<trial must specify the issues, $ule 2> implies that the pre< trial order must specify the issues. (hy' /ecause under $ule 2>, the presentation of evidence of the party is limited to the issues raised in the pre<trial order. So that if there are only two ,1. issues mentioned in the pre<trial order, no party is allowed to introduce evidence on any matter other than on these two ,1. issues. f there is a third issue, any party cannot prove it as a matter of right because they are limited only to prove the issues raised in the pre<trial order. &f course we ta3e into account also another rule that is the rule on amendment of the pleadings to conform to the evidence. !&&ue& that (ay not have +een rai&ed during the pre3trial (ay +e tried during the trial under the&e t:o /8. &ituation&: -. a party tries the issue and the other does not ob)ect! as a matter of fact he conforms, and in the case this issue can be tried 1. a party see3s to prove an issue which is not incorporated in the pre<trial order, the adverse party ob)ects but the court finds that the presentation of that merits of the case would best be sub<served by allowing this issue to be proven, sub)ect to the amendment of the pleading to conform with the evidence. %hese are the e+ceptions to the rule that unless otherwise specified in the pre<trial order, no issue can be tried. Q. (hat is the significance of this rule that the pre<trial order governs the subsequent course of the trial and the pre<trial order cannot be amended unless necessary, to avoid in)ustice being committed' A. (here a pre<trial order has already been issued, that pre<trial order cannot be changed, so the trial will now be governed in accordance with the pre<trial order. Eowever, this pre<trial order may be modified, if necessary to avoid in)ustice being committed if trial is limited to what is stated in the pre<trial order. RENE NOTE%K );at are <onsidered at 1re,trial

-. possibility of an amicable settlement 1. submission to alternative modes of dispute resolution a. arbitration b. mediation c. conciliation 2. simplification of the issues =. amendment to the pleadings 8. possibility of obtaining stipulation of facts or admissions of facts 7. limitation of the number of witnesses :. reference to a commissioner ;. possibility of )udgment of the pleading < need for motion 6. possibility of summary )udgment < need for motion ->. dismissal of action --. suspending the proceedings -1. other matters that may aid in the prompt disposition of the action X %he pre<trial and trial on the merits of the case must be held on a separate dates. Rule 1@ K!ntervention # vs. /. %hey are litigating for a piece of land. # says, I am the ownerJ. / says, I am the ownerJ. So, the issue is, Iwho is the owner'J Eowever, a third person, claims that he is the owner of the lot in question. Q. Eow can C protect his right over this land' A. C may come in to the picture as an intervenor. Unless, he ,C. is allowed to intervene in this case, his right will be adversely affected and he has no way of protecting himself because he is Ioutside the 1ula(+oJ. Q. (hat is the remedy' A. Bile a motion for intervention. Q. Can anybody )ust file a motion for intervention' A. Ao. Q. (hat would be the )ustification for an intervention' A. %he party intervening may have an interest against the plaintiff in this case. Ee may be interested in the success of / or he may have an interest adverse to #, and therefore he has an interest against for # and / or he may be so situated that any disposition of the property in the hands of the court affect him. So, he can now intervene in this case. So that he can protect whatever rights he alleges he has. Q. (hen will C in our e+ample file a motion for intervention' A. #t any time before a )udgment has been rendered in the case. %he motion for intervention will have to be heard in accordance with $ule -8 ,9otions.. %his means to say therefore, that C will notify both # and / of the hearing of this motion for intervention. Q. (hat may the pleading ,intervention. that he ,C. can file' A. t may be a pleading in intervention called a Hco(plaint in interventionD* f he ,C. )oins # against / or if he has an interest against both # and /, so he will file a complaint in intervention. &r he may file an answer in intervention if he )oins / as against #, he will file an answer in intervention. (hatever pleading he will file, when a complaint in intervention or an answer in intervention, that pleading must be attached to the motion for intervention. So, the motion for intervention is accompanied either by the complaint in intervention or by the answer in intervention. %his will now be heard by the court. Q. (ill the court grant or deny the motion for intervention' A. %he answer depends on the answer to the following questions: -. will the intervention delay the case between # and /' 1. may the right of C, C protected in a proceeding other than in this case between # and /'

f the answer to the first question is IyesJ, meaning, the intervention will delay the disposition of the case, then the court may deny the motion. f the answer to the second question is IyesJ, then the court may deny the motion for intervention. f the answer to both questions is InoJ, meaning, the intervention will not delay the right of C cannot be protected in another proceeding, then the court may grant the motion for intervention. Q. f the intervention filed by C is a complaint in intervention require an answer' A. Hes. # and / if they are the defendants in the intervention may file an answer to the complaint in intervention. Q. (ithin what period must they file' A. %hey must file the answer to the complaint in intervention within fifteen ,-8. days from receipt of the order of the court admitting the motion for intervention. Q. Eow will # and / 3now what the allegations are in the complaint in intervention since they are not summoned under $ule -= with respect to the complaint in intervention' A. $emember what we said earlier when C filed the motion for intervention, attached to the motion was already a copy of the complaint in intervention. So, even before they receive the order granting the motion for intervention, # and / already have with them the copy of the complaint in intervention. $emember that the complaint in intervention is not served on # and / by summons. t was served to them by C, by furnishing them a copy. #fter the intervention is allowed, then the court can hear the case, the case is between # and / and thereafter, the intervention. Q. n an intervention and an independent action in the sense that if the complaint is dismissed, the complaint in intervention may li3ewise be dismissed or is a complaint in intervention one that can be treated independently of the main case so that regardless of the outcome of the main case, the intervention remains unaffected' A. ,UnansweredV ?udge Lagui became illV. (hen he returnedV We have t:o /8. ca&e& of thi&: -. C+propriation case 9unicipality of Aor*agaray filed an action against G, H and T for e+propriation of lot. (hile this case was pending, the mayor of Aor*agaray manifested his intention to withdraw the complaint. (hy' /ecause the municipality was unable to procure the presidential approval of the e+ercise of the municipality of the right to e+propriate. %he law at that time require a presidential approval on the e+ercise by the municipality of the right to e+propriate. %he people of certain barrio of Aor*agaray, 9atictic, having heard of the intention of the mayor to withdraw filed now an intervention motion. (hy did this 9atictic people want to file an intervention motion' /ecause through this lot sought to be appropriated was a road, which the people of 9atictic used in going to the highway. /ut they had to pay the owners passage fee. So, it was to their interest therefore that this property be e+propriated so that they would be relieved of the burden of paying. %he 9ayor however, did not file formally a motion to withdraw the complaint. /ecause of this, the court motu proprio dismissed the complaint for failure to prosecute and of course for lac3 of presidential authority. %he dismissal too3 place before the court could rule on this motion for intervention. Ee dismissed the case outrightly. %he matter reached the SC. ssue: (hether the intervention of 9atictic people could still survive because of the dismissal. $ule: %he intervention could no longer be entertained because of the dismissal of the case. Hears laterV another case involving the foreclosure of mortgages, of real and chattel. G obtained various loans from different mortgages and to guarantee the payment, G constituted real estate mortgages and chattel mortgages. #mong the many assets of G sub)ect of the mortgages was a building ,@C# /uilding.. &n this building where installed were aircon units which sub)ect of a chattel mortgage in favor of H. %his building was eventually sold to C. H now filed a suit against C for replevin for the recovery of this aircon units claiming that he ,H. furnished the aircon units to G, and which G gave H by way of chattel mortgage. (hile this case was pending, # filed a motion for intervention on the ground that if he ,#. supplied G the money with which G acquired these aircon units. %he motion for intervention was granted and so # now filed the complaint in intervention which as a matter of fact was amended later on. n the meantime, H and C entered into an amicable settlement. /y reason of this settlement, this complaint of H was dismissed. Later on H questioned the propriety of the court having authori*ed the amendment of the complaint in intervention of #. (ith the dismissal of the case, this intervention of # can no longer subsist on the theory that an intervention is merely an ad)unct of the main case. %his is the theory.

%his contention was overruled. %he matter reached the SC. ssue: (hether the trial court was correct in still maintaining this intervention of # notwithstanding the dismissal. SC said that this dismissal of the complaint of H against C did not affect at all the intervention of #. n other words, the intervention of # still continue even if after the main case has already been dismissed. $eason: Since # was already allowed to intervene, he acquired a right to participate and therefore, that right cannot be adversely affected by the agreement between H and C. %heir agreement was binding only on themselves, it did not bind #. Q. (hat do you notice upon these two ,1. cases' A. #pparently, they are contradictory, because in the first, with the dismissal of the complaint, the intervention could no longer be maintained. n the second, the dismissal of the main complaint notwithstanding, the intervention could be maintained. Q. /ut are they in fact conflicting' A. %his is how ?ustice $egalado, our commentator in $emedial Law, tried to reconcile the two. #nd he came out with a conclusion that actually there is no contradiction between the two. Q. Eow did he reconcile' A. n the 9atictic case, when the complaint was dismissed, there was as yet no intervention to spea3 of. (hy' /ecause the court never ruled on the intervention! and therefore, the barrio people of 9atictic never became intervenors. #nd so, they have no right whatsoever that could be affected by the dismissal. /ut in the case of 9etroban3, there was already an intervention allowed at the time dismissal of the main complaint was effected. So, the right of the intervenor could no longer be adversely affected by whatever agreement the original parties have because it ,9etroban3. was not a party to the agreement. %he $ule is clear, an agreement or a contract binds only parties thereto, its heirs and successors in interest. So with these, it would seem that as long as an intervention has been allowed, it can be determined independently of the main case. %he original comment on this rule is that a motion for intervention is merely an au+iliary proceeding giving ris3 to the implication that if the main case of which it is merely an au+iliary, ceases to e+ist because of the dismissal, the intervention would li3ewise be dismissed. n this 9etroban3 case, it would seem that it"s no longer correct. @oing bac3 to the last e+ampleV where C is interested, the court will hear the case of # and / and receive the evidence of the parties, then the court will also receive the evidence of C and thereafter decide the case. So, it is li3e a three<cornered flight li3e that of IN#$#9/&L#.J RENE NOTE%K );o 3ay intervene a. one who has legal interest in the matter in litigation b. one who has legal interest in the success of either parties c. one who has interest against both parties d. one who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof !NTER-ENT!ON X an ancillary action. X proper in any of the four situations mentioned in this $ule. X defendants are already original parties to the pending suit Rule 51K %&BPOENA %&BPOENA X an order to appear and testify or to produce boo3s and documents X may be served to a non<party X needs tender of 3ilometrage, attendance fee and reasonable cost of production fee !NTERP EADER X an original action X presupposes that plaintiff has no interest in the sub)ect matter of the action or has an interest therein, which in whole or in part, is not disputed by the other parties to the action X defendants are being sued precisely to implead them.

%&MMON% X order to answer complaint X served on the defendant X does not need tender of 3ilometrage and other fees

%&BPOENA AD TE%T!F!CAND&M P a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the ta3ing of his deposition. %&BPOENA D&CE% TEC&M P a process directed to a person requiring him to bring with him boo3s, documents or other things under his control. );o 3ay issue su/1oenasK a. Court before whom the witness is required to attend b. Court of the place where the deposition is to be ta3en c. &fficer or body authori*ed by law to do so in connection with investigations conducted by said officer or body d. #ny ?ustice of the SC or of the C# in any case or investigation pending within the Philippines X %he cler3 of court shall issue under the authority of the )udge. X Ao prisoner sentenced to FC#%E, reclusion perpetua or life improsonment shall be brought out of a penal institution UALCSS authori*ed by the Supreme Court. %u/1oena du<es te<u3 3ay /e quas;ed u1on 1roo: t;atK a. t is reasonable and oppressive! b. %he articles sought to be produced do not appear prima facie to be relevant to the issues! c. %he person as3ing for the subpoena does not advance the cost of production of the articles desired. %u/1oena ad testi:i<andu3 3ay /e quas;edK -. if the witness is not bound thereby 1. no tender of witness fee or 3ilometrage Consequen<es o: an &n=usti:ia/le re:usal to o/ey su/1oenaK a. %he court which issued the subpoena may issue a warrant for the arrest of the witness and ma3e him pay the cost of such warrant and sei*ure, B the court should determine that this disobedience was willful and without )ust cause! b. %he refusal to obey the subpoena shall be deemed a contempt of the court issuing it. Rule 55KCo31utation o: ti3e $ule 11 refers to the computation of a period fi+ed by the law, by the rules, or by an order of the court. %e<. 1 says: !n co(puting any period of ti(e pre&cri+ed or allo:ed +y the&e Rule&, or +y order of the court, or +y any applica+le &tatute, the day of the act or event fro( :hich the de&ignated period of ti(e +egin& to run i& to +e eCcluded and the date of perfor(ance included* !f the la&t day of the period, a& thu& co(puted, fall& on a Saturday, a Sunday or a legal holiday, the ti(e &hall not run until the neCt :or1ing day* ?ust 3now what #rticle -2 of the Civil Code says on the matter. Arti<le 16 o: t;e New Civil Code When the la: &pea1 of year&, (onth&, day& or night&, it &hall +e under&tood that year& are of three hundred &iCty five day& eachB (onth& of thirty day&B day&, of t:enty3four hour&B and night&, fro( &un&et to &unri&e* !f (onth& are de&ignated +y their na(e, they &hall +e co(puted +y the nu(+er of day&, :hich they re&pectively have* !n co(puting a period, the fir&t day &hall +e eCcluded, and the la&t day included* EIa31le: # vs. /. # was summoned Fec. -7, -666. Under Sec. - of $ule --, / has a period of fifteen ,-8. days from service of summons on him. Under the provisions of #rticle -2 of the Aew Civil Code. Ie+clude the first and include the lastJ rule, you compute this -8<day period from Fec. -:, -666. So you will have up to Fec. 2-, -666. /ut Fec. 2- is usually a legal holiday, so the ne+t day will be ?an. -, but ?an. - is also a holiday, so the -8<day period will e+pire on the following day, assuming that ?an. 1 is not a Saturday or is not a Sunday or is not a legal holiday in the place where the court sits. Q. (hat does Sec. - of $ule 11 say' A. n computing a period, the day of the act or event from which the period starts to run is e+cluded. %his is what actually #rticle -2 of Civil Code is saying: I%he day of performance is included.J Q. (hat is Ithe day of performanceJ here'

A. %he filing of the answer. /ut under #rticle -2, the day of performance here is the last day. IC+clude the first, include the last.J (here an act effectively interrupts the running of a period, the allowable period shall start to run the day following the receipt of the notice of the cessation of the cause thereof. Q. (hat does this mean' ,%his provision is very complicated.. A. %e<. 5 Rule 55 Should an act +e done :hich effectively interrupt& the running of the period, the allo:a+le period after &uch interruption &hall &tart to run on the day after notice of the ce&&ation of the cau&e thereof* The day of the act that cau&ed the interruption &hall +e included in the co(putation of the period . EIa31leK / was summoned ?an. 1, -666. Under Sec. - of $ule --, / has a period ending ?an. -:, -666. %his is the day of performance ,?an.-:, -666.. Let us assume however that / filed on ?an. :, -666, a motion to dismiss. Q. (hat is the effect of the filing on ?an. :, -666 on the running of this period starting ?an. 2 and ending ?an. -:' A. t suspended the running of the period. Since there were five ,8. days of the -8<day period under Sec. - $ule --, there were ten ,->. days remaining because between ?an. 1 and ?an. :, a 8<day period has already elapsed. %here was a period of ten ,->. days remaining. %his-><day period remaining of the original -8<day period is the so<called Hallo:a+le periodJ referred to in Sec. 1 $ule 11. &n the assumption that this motion to dismiss is denied, Q. (hat is the effect of the denial of the motion to dismiss on the remaining period within which to file the answer' A. t will start to run. t will resume its running. (hy' /ecause it started but when the motion to dismiss was filed, the running was interrupted but when the motion to dismiss was denied, the running must resume. ,EintoZ VtaposV %a3boZ. Q. (hen will this Iallowable periodJ start to run' A. Let us assume that / received the order of denial on 9arch ->, -666. (e say that when the order of denial the period of -><day starts to run. (hy' (hat interrupts it' %he period was interrupted by this order 9arch ->, -666. %his is the cause of the cessation of the stopping of the running. Q. (hat is the allowable period that starts to run after this order denying the motion to dismiss was issued' A. %he law says, Ithis allowable period shall start to run the day following the receipt of the notice of the cessation of the period.J So, in our e+ample, this allowable period starts to run the day following the receipt. So, this starts to run 9arch --, -666 ,-> days starting 9arch -- is 9arch 1-, -666.. %his is still an application of #rticle -2 which is Ie+clude the first, include the last day.J ,%he committee wanted to be different, probably. Conclusion: $ule 11 did not actually amend #rt. -2 of ACC, e+cept in one respect, there is now an e+pressed provision in the rules that when the last day of performance is a Saturday, a Sunday, or a legal holiday in the place where the court sits, the date of performance is moved to the ne+t wor3ing day. %a3e note that the legal holiday referred to here is the legal holiday in the place where the court sits. So if the court sits in 9anila, and the last day in 9anila is Fec. 1>, which is not a holiday, but in S.C., Fec. 1> is a holiday. Q. (ill the last day of performance be moved to the ne+t wor3ing day' A. Ao, because the holiday is not in the place where the court sits, which is in 9anila. Modes o: Dis<overy Rules 56# 5?# 5C# 57# 54 and 5D. Q. (hat are the modes of discovery' A. #s the term suggests, these modes of discovery are remedies the law allows a party to a case to avail of for the purpose of getting in advance 3nowledge of facts related to a case which the adverse party may have 3nowledge of so that when trial proceeds, a party to a case already 3nows what the adverse party may have.

#ctually therefore, these modes of discovery are intended to allow a party to discover what the other party has, because if these rules on discovery were not allowed, a party to a case would 3now nothing about the adverse party"s case e+cept those which are alleged in the pleading. So, if #, the plaintiff and /, the defendant, all that # would normally 3now about the case in so far as he is concerned is what appears in the answer or pleading of /. n the case of /, all that he could 3now in so far as # is concerned is what appears in the complaint or pleading of #. So, rules of relevant facts would be limited to what is disclosed only in the pleadings. /ut with the modes of discovery we mentioned, # may be able to 3now facts that / may have! / may be able to 3now facts that # has, so that when the trial proceeds, each party already 3now what the other party has. %his is the concept of discovery. %his practice is widely used in U.S. So, if # and / are litigants, before trial, # could already 3now all the facts about #! / could already 3now all the facts about #. So that when the trial comes, there is nothing that is not 3nown to the adverse party. %his is how e+tensively these remedies are utili*ed in U.S. (hile these rules have been with us, for decades, they were never appreciated. (hy' Dery few avail of it. %his is why, to compel the resort to modes of discovery, there are certain sanctions that the court may impose on a party who fails to comply with the rules written interrogatories! with the rules on request for admission. Rule 56K De1osition Pendin0 A<tion %his is denominated as De1osition Pendin0 A<tion. %his contemplates a situation where a case is already pending in court. (hile the case is pending in court, the party may now discover facts either from the adverse party or from any other persons. EIa31leK # vs. / ,%hey are litigating a piece of land. # suspects that / may present as his ,/. witness G against him ,#.. # would want to 3now in advance what G is going to say. Q. (hat is the remedy available to #! so that even before trial # will already 3now what G will say so, when he will be called upon to testify' A. # can resort to $ule 12 ,Feposition Pending #ction. Q. s it necessary for # to obtain leave of court in order that he can ta3e the deposition of G' A. %he rule is this: !f no an&:er ha& a& yet +een &erved on A, then # must file first a motion as3ing for leave to ta3e the deposition of G. !f an an&:er ha& already +een &erved on A, # can now ta3e the deposition of G without leave of court. So, whether leave of court is required on that would depend on an answer to a question Iwas an answer already serve on the plaintiff'J f there was none, leave of court is required! if there was, no leave of court. Q. f # now were to ta3e the deposition of G, what can be the sub)ect matter of the inquiries made by #' A. %he rule is: A can ta1e depo&ition of I on any (atter related to the clai( of A or related to the defen&e of ,, provided the&e (atter& are not privilege in character. 9eaning, that where the matter sought to be inquired by # from G are privilege, they cannot be the sub)ect of inquiry, and therefore G may not answer that. Q. Supposing it is / who suspects that # will present H as his witness, can / also ta3e the deposition of H' A. Hes. Q. So, what do we conclude on from this' A. %he right to ta3e a deposition belongs to both parties. t does not belong only to one. Q. f you were # now, how will you proceed ta3ing the deposition of G' A. %he first is for # to send / a notice to ta3e depositions. %he deposition may either be on oral e+amination or on written interrogations. Q. Let us assume that # would want to ta3e the deposition of G, what will this notice to ta3e deposition contain' A. %he notice will be worded this way: %o /, defendant, @reetingsV Pls. /e notified that the undersigned plaintiff # will ta3e deposition on oral e+amination of G before the notary public T at his office at -12 %imog #ve., S. C. on ?an. ->, -666 at ;:>> #9

Signed # / received the notice. Q. (hat will happen on ?an. ->, -666 at ;:>> #9' A. G and the lawyer of #, if he has any, or # will appear before the notary public. Q. Eow about /' A. Ee may appear if he wants to. Ee may disappear if he wants to. n other words, he may appear if he li3es, he may not appear if he does not li3e. (hatever his wishes are, the plaintiff # can proceed with the deposition of G as long as / was notified. Q. Eow will # compel the presence of G before the notary public on ?an. ->, -666 at ;:>> #9' A. # can file with the court in S.C. a motion for the issuance of subpoena to G so that G will be subpoena. %he rule in a subpoena to a witness in deposition ta3ing may be issued by the court in the place where his deposition is ta3en. Q. (hat happens on ?an. ->, -666 in the office of the notary public T' A. # will now question G on anything related to the claim of # or related to the defense of / provided they are not privileges. Q. Eow about /' A. f / were present or his lawyer is present, / or the lawyer can cross<e+amine G, then G may again be questioned by # or by #"s lawyer. %his is the second e+amination called the re<direct e+amination. #fter he ,#. finished the re<direct e+amination, G may again be e+amined by / or his ,/"s. lawyer, we called this word e+amination the re<cross e+amination. Q. (hat do you notice' A. n e+amination of Ideponent, G in our e+ample, is the same e+amination that may be conducted as if he were actually before the court in which the case is pending. Let us assume in our e+ample that / received the notice but did not appear either personally or through counsel. So that in our e+ample, G testified in the absence of / or the counsel of /. Q. 9ay / be allowed nevertheless to question G after G finished his direct testimony' A. Hes. Q. /ut how about if / is not there' A. ts no problem because of personally appearing in court, / can send his written questions to the notary public. %he notary public will now read these questions to G one by one and G will answer them also one by one. Let us assume that the deposition is going on. Let us assume also that /"s counsel is present while #"s counsel is questioning G, a question appears to be ob)ectionable to /. Q. Can he ,/"s counsel. ob)ect' A. Hes. Q. (ill the notary public however, rule on the ob)ections' A. Ao, he will simply record the ob)ection. Unli3e the )udge, the notary public or whoever is the deposition officer, is not allowed to rule on the ob)ection. Q. Bollowing the conclusion of e+amination of G, what shall be done now' A. %he testimony of G as stenographically recorded during the proceedings, will now be transcribed. #fter its transcription, the transcript is shown to G for him to read or for that transcript to be read to him. f there are parts in the transcript which he desires to change, then he can change them out in this case, the deposition officer or a notary public or a )udge for that matter will have to indicate in the records the reason why G changed his answers. G may sign or may not sign the transcripts. Ee may not sign if, for instance, let"s say he agree that there is no need, or G himself for any reason may refuse to sign. n any event when G refuses or fails to sign, the notary public or the )udge who acted as the deposition officer, must have to sign the transcript. #fter the signing of the transcript or if the deponent refused to sign, that is therefore, after the certification by the notary public or the deposition officer, the

proceedings are concluded, the deposition officer forwards now the records of the deposition ta3ing to the court where the case is pending. So, if were the deposition officer, will now forward to the court the entire records. f there were e+hibits presented during the deposition ta3ing the deposition officer should also forward it to the court. Q. s there a duty on the part of the deposition officer to notify the parties of the fact that he has forwarded the records to the court' A. Hes. %he law requires that the deposition officer must notify the parties of the fact that he already sent the copies of the deposition record to the court. Q. #re the parties entitled to receive a copy of the transcript of the testimony of the witness, in the e+ample of G' , s # entitled to receive a copy' s / entitled to receive a copy of the branch record'. A. Hes, provided he pays for the cost thereof. %his is only by way of deposition through oral e+amination. Under the $ule, # can ta3e also the deposition of G by written interrogations. Q. Eow would this be done' A. # ta3es the deposition of G by written interrogations. Q. Eow will this notice to ta3e deposition of G by written interrogatories be worded' A. %his is how it will be done: /, defendant @reetingsZ Hou are hereby notified that the undersigned plaintiff # will ta3e the deposition of G by means of written interrogatories. #ttached herewith is the direct written interrogatories. Signed by # Q. (hat is this Hdirect :ritten interrogatorie&J' A. t is that document that G has as3ed all the questions on direct e+amination. Hou call this the Idirect interrogatoriesJ. So attached now to the notice is a copy of the direct interrogatories by #. %his is now furnished to /. Q. (hat is he ,/. authori*ed to do following his receipt of the notice and of the direct interrogatories' A. f / desires, he may within ten ,->. days from his receipt of the notice and the direct interrogatories also furnish # a so<called cross<interrogatories. Ee will give this cross<interrogatories to #. Q. (hat are these Hcro&&3interrogatorie&J' A. %hey are the questions, which / would have as3ed to be answered by G on cross<e+amination. # now has with him the cross<e+amination interrogatories of /. Q. (hat is # now allow to do, following his receipt of the cross<interrogatories' A. (ithin five ,8. days from his receipt of the cross<interrogatories, # may serve on / another set of interrogatories, the so<called re<direct interrogatories. %his would have been the question which # would as3 G have had been personally questioned by #. So, # will serve on / a copy of his re<direct interrogatories. Q. (hat is the right of / upon receipt of this re<direct interrogatories of #' A. (ithin three ,2. days of his ,/. receipt of the re<direct interrogatories, / may serve on # a set of questions again, you called the re<cross interrogatories. Q. So, what do you notice now' A. # has with him all sets of interrogatories: -. Firect< nterrogatories ,#. 1. Cross< nterrogatories ,/. 2. $e<Firect nterrogatories ,#. =. $e<Cross nterrogatories ,/. Q. (hat shall # do with all these sets of interrogatories' A. Ee will now proceed to the deposition officer together with G. (hat for' So that the notary public will now question G or the notary public or the )udge who acted as a deposition officer.

So, G is there nowV he is now sworn by the notary public or the )udge. Q. (hat will the notary public or the )udge do' A. %his is what the notary public or the )udge will do: Ee will now ta3e the first set, the so<called direct<interrogatories. Ee will now read question no. - to G. %hen G will answer. So, the deposition officer or notary public will read one<by< one the questions and G will answer them one<by<one. %his is what the notary public will do. %he proceeding after G finished answering the four ,=. sets of interrogatories will be the same as if G testified on oral interrogatories. %his means to say that the testimonies of G will be transcribed. %he transcript will be given to him to read or to be read to him. Ee will sign, if he wants to sign. Ee will ma3e corrections, if he wants to ma3e corrections. %hereafter, the deposition officer will forward to the cler3 of court where the case is pending the entire records of the case. %his is how he deposition is ta3en. Q. Eow will the deposition of G be used' A. t will be used in accordance with Sec. = $ule 12. ntroduce all of it which is relevant to the part introduced and any party may introduce any other part. Let us assume that the deposition of G was already ta3en. %his was already received in the cler3 of court, Fec. -, -66;. %rial is on Fec. -8, -66;. &n this day ,trial., # and / are supposed to present their evidence. # said, IHour Eonor, my witness is G, he already had given his deposition. Eis deposition is now here in court, which now as3ed to be mar3ed as e+hibit #. will not present G anymore. Hour Eonor, will now present his deposition, in lieu of his personally testifying in court.J Court: I(hat does / said on the manifestation of #' /: Hour Eonor, # does not 3now $ule 12. Aotwithstanding that he ,#. claimed that he has been a lawyer for fifty ,8>. years, he does not 3now $ule 12. Court: I(hy'J /: IHour, Eonor, the law is clear, this deposition can be used, only under the conditions mentioned in Sec. = of $ule 12 as evidence.J Court: I$ight, Hou"re correct.J $uling: I%he manifestation is out<of<order. C+hibit # cannot be used.J Q. s the observation of the court correct' A. Hes* A& long a& a deponent i& alive and 1ic1ing, hi& depo&ition cannot +e u&ed in court* (hy' /ecause a depo&ition i& u&ed only in anticipation of the ina+ility of the deponent to te&tify in court. /ut as long as he is alive, he cannot use his deposition, e+cept for purposes under Sec. = of $ule 12. Q. Bor what use will the deposition of G be utili*ed' A. Let us assume that / presented as his witness G. n our premise, the deposition of G was ta3en by #. So, G is a witness of # for purposes of that deposition. %e<. ? Rule 56 At the trial or upon the hearing of a (otion or an interlocutory proceeding, any part or all of a depo&ition, &o far a& ad(i&&i+le under the rule& of evidence, (ay +e u&ed again&t any party :ho :a& pre&ent or repre&ented at the ta1ing of the depo&ition or :ho had due notice thereof, in accordance :ith anyone of the follo:ing provi&ion&: a* Any depo&ition (ay +e u&ed +y any party for the purpo&e of contradicting or i(peaching the te&ti(ony of deponent a& a :itne&&B +* The depo&ition of a party or of any one :ho at the ti(e of ta1ing the depo&ition :a& an officer, director, or (anaging agent of a pu+lic or private corporation, partner&hip or a&&ociation :hich i& a party (ay +e u&ed +y any adver&e party for any purpo&eB c* The depo&ition of a :itne&&, :hether or not a party, (ay +e u&ed +y any party for any purpo&e if the court find&: #* that the :itne&& i& deadB or 8* that the :itne&& re&ide& at a di&tance (ore than one hundred /#66. 1ilo(eter& fro( the place of trial or hearing or i& out of the 'hilippine&, unle&& it appear& that hi& a+&ence :a& procured +y the party offering the depo&itionB or 9* that the :itne&& i& una+le to attend or te&tify +ecau&e of age, &ic1ne&&, infir(ity, or i(pri&on(entB or =* that the party offering the depo&ition ha& +een una+le to procure the attendance of the :itne&& +y &u+poenaB or

d*

upon application and notice, that &uch eCceptional circu(&tance& eCi&t a& to (a1e it de&ira+le, in the intere&t of ?u&tice and :ith due regard to the i(portance of pre&enting the te&ti(ony of :itne&&e& orally, in open court, to allo: the depo&ition to +e u&edB and !f only part of the depo&ition i& offered in evidence +y a party, the adver&e party (ay reAuire hi( to utili2e I a& hi& :itne&&*

5*

Q. Can that be done' A. Hes, it can be done. (hy' /ecause the rule says, Ia party :ho ta1e& the depo&ition of another doe& not (a1e that party hi& :itne&&*D So, G is not a witness for purposes of the trial of the merits of the case. Ee is now a witness of /. Q. Eow may this deposition of G be utili*ed by #' A. %a3e note that under Sec. = of $ule 12 par.,a., HAny depo&ition (ay +e u&ed +y any party for the purpo&e of contracting or i(peaching the te&ti(ony of deponent a& :itne&&*D %he deposition of a party may be used by anyone. # can use that deposition of G but only for one purpose to impeach G. Q. Can # utili*e the contents of the deposition of G to prove the truth of what is stated there' A. Ao, he cannot do that unless the e+ceptions will apply ,Sec. = $ule 12.. n our e+ample, the only use of deposition of G in the hands of # is to impeach G, nothing more. Q. (hat is i(peach(ent; A. mpeachment is the process whereby a party tries to ma3e evidence against him worthless by showing that the witness or the evidence is not credible. n our e+ample, the only use by # of the deposition of G is to show that G is not a credible witness. Supposing the issue is: I(hat is the color of the dog of /'J # said,I%he dog is blue.J / said, I%he dog is red.J G said while testifying for /. I%he dog of / is red.J /ut in his deposition, he said the dog of / is blue.J Q. (ill this statement now prove that the dog is blue and that there # can introduce that in evidence to prove that the dog is blue' A. Ao. %his is usable only in the hands of # to contradict the statement of G in court that the dog is red. %his is only to show that G is not telling the truth. /ut by this showing, # does not concede that the dog is blue. Ee simply said that G is telling a lie. $emember how a witness may be impeached or recall by a party against whom the evidence is given may impeached a witness giving the evidence by any of the following means: -. by contrary evidence! 1. by evidence that the reputation of the witness for honesty, integrity and truth is bad! 2. by evidence that a witness has given statements contrary to what he said in court prior inconsistent statements! =. that a witness has been previously convicted of a crime. Q. (hen, however, may a deposition be used, not only for purposes of impeachment, but for any other purpose' A. Let us assume in our e+ample that the deponent is no longer G, but / himself. Q. Can # ta3e the deposition of his adverse party' A. Hes, that can be done. Q. n the hands of #, for what use may this deposition of / be ta3en' A. %he rule says, Ifor impeaching and any other purposes.J Let us assume now that / testified. # now e+amines him on cross<e+amination. Q. Eow can # use the deposition of /' A. -. to impeach /! 1. for any and all other purposes. Bor instance, there is something said in the deposition of / favorable to #.

Q. Can # introduce in evidence this deposition of / even if he ,/. is alive' A. Hes. Supposing in the deposition of /, he said, I%his land used to be the property of C, the father of #.J So, this statement may be favorable to # because it will give credence to his claim that he inherited this lot from C. %his would be favorable to him. So in this case, # may introduce this deposition even if / is alive. Q. (hat then is the difference, if there is any, between the use of a deposition of an ordinary witness and the use of the deposition of a party to a case' A. n the case of an ordinary witness, it is used only for one purpose, that is to impeach. n a case of a party, for two ,1. purposes: ,-. to impeach! and ,1. for any other purpose. Q. (hen can the deposition of witness either an ordinary witness or a party to a case to be used to prove the truth of what is said there' n other words, our proponent here is G. (hen can this deposition of G be introduced as evidence to prove the truth of what is stated there' #. -. when G is already dead! or if alive, cannot testify 1. he lives in a place more than ->> 3m away from the court where he is supposed to be summoned to testify. Under the rule& of &u((on&, a party who resides in a place more than ->> 3m away from the court to which he is summoned, he is not obliged to obey the summons. n this case, G resides more than ->> 3m away from the court room, he cannot be compelled to appear and so his deposition may be used to prove the truth of what is stated there or if G cannot be subpoena unless the failure to subpoena G was the result of the manipulation on the part of # himself ,if he is the one presenting. or there are some circumstances that may be established which would ma3e the presentation of the deposition )ustified. Rule 56 %e<. ? FC8 saysK Jthe depo&ition of a :itne&&, :hether or not a party, (ay +e u&ed +y any party for any purpo&e if the court find&: #* that the :itne&& i& deadB or 8* that the :itne&& re&ide& at a di&tance (ore than #66 1( a:ay fro( the trial or hearing or i& out of the 'hilippine&, unle&& it appear& that hi& a+&ence :a& procured +y the party offering the depo&itionB or 9* that the :itne&& i& una+le to attend or te&tify +ecau&e of age, &ic1ne&&, infir(ity or i(pri&on(entB or =* that the party offering the depo&ition ha& +een una+le to procure the attendance of the :itne&& +y &u+poenaB or 5* upon application and notice, that &uch eCceptional circu(&tance& eCi&t a& to (a1e it de&ira+le, in the intere&t of ?u&tice and :ith due regard to the i(portance of pre&enting the te&ti(ony of :itne&&e& orally in open court, to allo: the depo&ition to +e u&edB andJ Under this section, even though the witness is alive, deposition may be used under any of these circumstances: &ur e+ample here presupposes that the witness is in the Philippines. Supposing now, # wants to ta3e the deposition of G who is in the US. Q. Can that be done' A. Hes, it can be done. %he deposition can be done. Pro<edureK # will give notice to / that he will ta3e a deposition of G in the US. %he deposition of G must be ta3en before the Secretary of the Cmbassy. Legation or the consul general or the consul or a vice consul or any other officer in the foreign service of the $epublic of the Philippines in the US. Supposing we have no consular officers, or we have no embassy in the US. Q. Eow may the deposition of G be ta3en by the so<called commission' Eow will # go about securities commission' A. Ee will file a motion in court as3ing that the commissioner be authori*ed to receive the testimony of G. %he court will name the particular person who will ta3e the deposition in the US of G. n one case, Da&(ariKa& Gar(ent& v&* Reye& ,-6;;., the plaintiff wanted to ta3e the testimony of his witness residing in %aiwan. So, he filed an application with the trial court in 9anila where the case was pending for the appointment of the commissioner. (hy' /ecause at that time we did not have, as we do not now have, any diplomatic relation with %aiwan as we recogni*e the &ne<China Policy, and there is only one China i.e. $ed China. %aiwan is a mere

province of, according to $ed China, of $ed China. So, since we have diplomatic relation with $ed China, we cannot, for obvious reason, recogni*e, %aiwan as another state. So, we did not have an embassy or a consular office in %aiwan. /ut we have an office there euphemistically called 9CC&. %his is supposed to be an office ta3ing charge of the commercial interest of the Philippines in %aiwan. So, Fasmari]as filed a motion as3ing that the deposition of his witness be ta3en. %he 9anila %rial Court granted the motion. So, the defendant elevated the matter to the SC. ssue: (hether the 9anila court can order the 9CC& to ta3e the deposition of G, ,witness of Fasmari]as.. Eeld: Under this rule ,$ule 12., the SC sustained the ruling of the 9anila %rial Court. So, as distinguished from a situation where we have a consular officer or when we have diplomatic relations, where the deposition of a witness have been ta3en before those persons already named, even without prior leave of court. n the case of a commission, the deposition cannot be ta3en by the commissioner unless there is an authority from the court. etters Ro0atory Q. (hat is meant by letters rogatory' A. C+ample: # wants to ta3e the deposition of G in %imbu3tu. (e do not have any consular office there. (e do not have diplomatic relation there. (e have no nothing. Q. Eow can the deposition of G be ta3en in %imbu3tu' A. /y letters rogatory, the deposition of G may be ta3en. Q. (hat is letters rogatory' A. n our e+ample, # now will file a motion in court as3ing that letters rogatory be issued for the purpose of having the testimony of G ta3en on written interrogatories. %he court grants the motion. %his letters rogatory are letters to the court. %he court where the case is pending, say $%C of 9anila, will now address a letter to, let"s say, the Chief ?ustice of %imbu3tu. @reetingsZZZ Hou are hereby requested to ta3e the deposition or written interrogatories of G who lives within your territorial )urisdiction. #ttached are the interrogatories. (e shall render to you the same assistance when requested. Letters rogatory is a letter from one court to another court, requesting the court of the place to ta3e the deposition of G. %his is how $ule 12 wor3sZ RENE NOTE%K Persons /e:ore w;o3 de1ositions 3ay /e takenK , )it;in t;e P;ili11ines: ,a. )udge ,b. notary public ,c. any person authori*ed to administer oaths, as stipulated by the parties in writing , Outside t;e P;ili11ines ,a. on notice, before a secretary of embassy or legation, consul general, consul , vice consul, or consular agent of the phil. ,b. before such person or officer as may be appointed by commission or letters rogatory ,c. any person authori*ed to administer oaths, as stipulated by the parties in writing COMM!%%!ON ETTER% RO"ATOR$ X issued to a non<)udicial foreign officer who will X issued to the appropriate )udicial officer of the foreign directly ta3e the testimony country who will direct somebody in said foreign country to ta3e down testimony X applicable rules of procedure are those of the X applicable rules of procedure are those of foreign court requesting court requested to act X resorted to B permission of the foreign country is X resorted to B the e+ecution of the commission is given refused in the foreign country X leave of court is not necessary X leave of court is necessary

Rule 5?K De1ositions /e:ore A<tion # party before any action has been instituted in court may ta3e the deposition of himself or of a third person for the purpose of preserving that testimony for use in the event a case would later be filed.FDe1ositions in Per1etua3 Rei Me3oria3 8 EIa31leK # has a piece of land. / has a piece of land too )oining #"s lot. # and / are neighbors. %heir respective properties are divided by fence. %he only trouble is, # and / did not believe that good fences ma3es good divide. (hy' %hey first put up a bamboo fence. So, here comes a typhoon. / now puts up this fence but intrudes - ft. into the property of #. #nother typhoon truc3, the typhoon went down. / again put up another fence, this time intruding another - ft. magine how many typhoons we have in one year. So, # anticipates that if all these e+pected typhoon will materiali*e, there will be a time when he will no longer have any inch of land to stay on. /y that time he will already be fenced out of the property. Q. (hat is the remedy' A. %o file a case. Q. /ut who will file the case' A. # said, I may file the case. /ut don"t have the money right now. Eow can file a case'J So, he is waiting for / to file a case. /ut / is not going to file a case because he is still waiting for the many typhoons to come. So, he cannot compel / to file a case. n the meantime, he e+pects that by that time a case is filed, either by himself against / or by / against himself, he may already be si+ ft. under the ground, or if he is alive, his e+pected witness G may also be already si+ ft. under the ground. Q. (hat is the remedy' So that when the case shall have been filed, and G is already gone, that testimony of G can still be used as evidence' ,because it was preserved.. Eow will this preservation be made' A. # lives in Sulu! / resides in /atanes. # Sulu / /atanes

Q. (hat is the remedy now available to #, so that his testimony or the testimony of G will be preserved' A. Ee will now file a case against / in the places where he ,/. resides i.e. /atanes. ,/ut # is from Sulu' Aever mind that is what the law says.. Q. n what court will this case be filed by #' A. %he rule does not say. t simply says IcourtJ. Q. 9%C' $%C' A. #n action of this nature to preserve the testimony is an action, which is incapable of pecuniary estimation. $emenber Sec. -6 of /.P. Y -16, an action incapa+le of pecuniary e&ti(ation i& :ithin the ?uri&diction of the RTC* So, while this rule does not specifically state that the action should be filed in the $%C, the action by reason of its nature should be filed in the $%C. Q. (hat will be the allegations' A. (ell principally # will allege the reason why he wants his testimony or that of his witness G be preserved. Ee would state in the petition the facts which he wants to prove. Q. (hat is his prayer' A. Eis prayer is that the court may authori*e him to ta3e his deposition or to ta3e the deposition of G. Q. Eow will / 3now that a petition against him has been filed' A. (ell, the rule requires # to furnish / with a copy of his petition and the notice of hearing thereof. %he hearing must be set by # on a date which is not earlier than 1> days from service by # on / of the copy of the petition and of the copies of hearing. Q. &nce the petition is filed, what will the court do'

A. %he court will now issue a summons to / notifying him of the date of hearing as set in the notice of /. %his will be served on / in the manner that the summons is served to a defendant under $ule -=. So while the rule does not specifically state the summons should be issued and served in accordance with $ule -8. Q. (hat will happen on the day set for hearing' (ill there be a trial, in the sense that evidence may be received by the court for # and /' A. Loo3 at the provision, there is nothing said on the following: -. %hat / has the right to file an answer for an opposition. %here is nothing said. %he rule does not say that / or # will be allowed to present evidence. %he rule says that the court will hear the petition and if granting the petition will avoid failure of )ustice court will grant the petition. Q. (hat is the meaning of that' A. %he court in granting the petition will now authori*e # to ta3e his deposition or to ta3e the deposition of G or any witness for that matter in accordance with the rule either by means of oral pending appeal, e+amination or written interrogatories. %his is how $ule 1= wor3s. Q. Eow will the deposition of either # or G be used' A. n the same manner a deposition is ta3en under $ule 12, in other words, Sec. = of $ule 12 will apply in so far as the deposition of # or his witness is concerned. %his is the gist of $ule 1=. Q. (hy do you call it Ideposition before actionJ' A. /ecause at the time it was ta3en there was yet no case. %his was only ta3en in anticipation that a case may later on be filed. RENE NOTE%K X Fepositions under this $ule are also ta3en conditionally, to be used at the trial only in case the deponent is not available. X Fepositions under the $ule do not prove the e+istence of any right and the testimony perpetuated is not in itself conclusive proof, either of the e+istence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. Eowever, in the absence of any ob)ection to its ta3ing, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition. X f deposition is ta3en under this $ule, it may be used in any action involving the same sub)ect matter subsequently brought. Rule 5CK )ritten !nterro0atories to Parties Q. (hat are interrogatories' ,written. A. Suestions ,Aa3asulat. Q. s there an oral interrogatories' A. Aaturally. f you e+amine a court witness, the interrogation is oral. ,questioning. Q. (hen may a party address written interrogatories to the adverse party' A. Sec. - of $ule 12 applies to Sec. - of $ule 18 %e<. 1 o: Rule 56 ,y leave of court after ?uri&diction ha& +een o+tained over the defendant or over property :hich i& the &u+?ect of the action, or :ithout &uch leave after an an&:er ha& +een &erved, the te&ti(ony of any per&on, :hether a party or not, (ay +e ta1en at the in&tance of any party, +y depo&ition upon oral eCa(ination or :ritten interrogatorie&* The attendance of :itne&&e& (ay +e co(pelled +y the u&e of a &u+poena a& provided in Rule 8#, depo&ition& &hall +e ta1en only in accordance :ith the&e rule&* The depo&ition of a per&on confined in pri&on (ay +e ta1en only +y leave of court on &uch ter(& a& the court pre&cri+e&. %e<. 1 Rule 5C Under the &a(e condition& &pecified in Sec* # of Rule 89, any party de&iring to elicit (aterial and relevant fact& fro( any adver&e partie& &hall file and &erve upon the latter :ritten interrogatorie& to +e an&:ered +y the party &ervedB

or if the party &erved i& a pu+lic or private corporation or a partner&hip or a&&ociation, +y any officer thereof co(petent to te&tify in it& +ehalf* EIa31leK # vs. /. Let us say that # wants to address written interrogatories to /. # can address this written interrogatories to / either with or without leave of court. f no answer has yet been served by / on #, the written interrogatories may be ta3en only with leave of court. f an answer has already been served on #, written interrogatories may be served without leave of court. Q. (hat can be the sub)ect of the written interrogatories' A. %he sub)ect may be one that relates to the claim of the plaintiff or one that relates to the defense of the defendant, provided that these matters are not privileged. Q. Eow many questions may be addressed in written interrogatories' A. %here is no limit. %he only limitation is that the question relate to the claim of the plaintiff or to the defense of the defendant and they are not privileged. Q. So, if you have -,>>> questions to as3, as3 the -, >>> questions. f you have only 666 questions, can you again send another written interrogatories consisting only of one question' A. Ao. %he rule is, a party can &end only one &et of :ritten interrogatorie& . %he number of questions is not limited. t could be as many questions as a party can conceive of as long as his questions are related to the claim of the plaintiff or to the defense of the defendant provided they are not privileged. Q. s there an e+ception to this rule that only one set of written interrogatories may be sent' A. %he general rule is, only one set of written interrogatories may be sent. Eowever, in the discretion of the court, another set of written interrogatories may be sent. Q. (hen must a party reply to written interrogatories' A. %he party to whom the written interrogatories were sent must answer then within -8 days from service to him of the interrogatories. Supposing the written interrogatories include questions that are improper, for instance those are questions for the ownership of the land. # vs. /. %he questions as3ed by # is in his interrogatories relevant to the matters concerning the claim of # and defenses of /. /ut here comes another question, IEow many wives do you have'J Q. s the number of wives relevant to the matter on issue' A. &f course not because they are not litigating in the number of wives. Q. (hat is the remedy available to / here' A. Bile a motion to stri3e out that question. # motion praying therein that /, be not require answer. Q. (hat is the effect of that motion on the part of / to stri3e out that improper question to the running of the period for the filing of the reply' A. %he period is suspended. RENE NOTE%K X # )udgment by default may be rendered against a party who fails to answer written interrogatories. X "eneral Rule: Unless a party had been served written interrogatories, he may not be compelled by the adverse party: a. to give testimony in open court b. give a deposition pending appeal EI<e1tionK (hen the court allows it for good cause shown and to prevent a failure of )ustice. De1ositions u1on )ritten !nterro0atories to Parties under Rule 56 %e<. 5C A& to Deponent -. a party or ordinary witness A& to procedure 1. with intervention of the officer authori*ed by the Court to ta3e deposition A& to &cope 2. direct, cross, redirect, re<cross !nterro0atories to Parties under Rule 5C -. party only 1. no intervention. (ritten interrogatories are directed to the party himself 2. only one set of interrogatories

!nterrogatorie& =. -8 days to answer unless e+tended or reduced by the =. no fi+ed time court R& E 57K Ad3ission By Adverse Party EIa31leK Let us say that # and / are litigating over a piece of land. %he claim of # is that he bought this lot from F. %he claim of # is that this sale is evidenced by a deed of sale purportedly signed by F. %his document however, is a private document. # may also have declared this lot for ta+ purposes ,ta+ declaration. and # have paid the ta+es on this land. Under the rule& on reAue&t for ad(i&&ion, the rules said after the issues have been )oined, any of the parties may now address to the adverse party a request for admission. n this request, the party sending the request as3 the party to whom the request is sent, to admit the truth of the matters of fact stated in the request or the genuineness of the document the copy of which is attached to the request. %his is how it is doneV Let us assume that the answer of / has already been served. n his answer, / denied the material allegations of the complaint. So, issues are now )oined. Q. (hen is an issue )oined' A. (hen the parties are certained and it is disputed EIa31leK f # said, Ithe color of the dog is blue.J / said, Ithe color of the dog is red.J %his is an issue because they dispute on the color of the dog. So, in our e+ample, the issue is, Iwho is the owner of the land.J (hy' /ecause # says, I am the owner.J / said, IAo, you are not the owner.J # will have to prove that he is the owner. So, he will have to prove that he is the owner. f he ,#. follows the rules in evidence, he has to prove every facts in accordance with the rules in evidence. Bor instance, we have a rule on how to prove a private document. %he $ule says, Sec. 1>, $ule -2;, IAo document offered as authentic document shall be admitted in evidence unless the genuineness and due e+ecution of that document is proven. Q. Eow will these rules on discovery have shortened the time for proving facts in accordance with these rules in Cvidence' A. #fter # have already received for instance, the answer and issues having been )oined, this is what he will do, he will address a request for admission, / defendant. @reetingsZZ Hou are hereby requested to admit under oath within -8 days from receipt thereof the truth of the following facts: -. # declared a lot for ta+ purposes per ta+ declaration Y-12=, City of 9anila. 1. # has been paying the ta+es of his lot as evidenced by ta+ receipts, copies of which are anne+es #, / and C. 2. %he genuineness of the document, copy of which is attached as anne+ IFJ Copies of these private documents are now attached for admission. 9ore particularly this is what # as3 / in that request for admission. IHou are hereby requested to admit that the signature over the name / in #nne+ / is the genuine signature of /.J # now is in possesion of these documents ,%he request for admission to which was attached a copy of the documents.. Q. (hat is the duty of / upon receipt of the request' A. (ithin the period granted to him under the written request, but no less than -8 days, /, if he denies the truth of these facts, he denies that # has declared his land for ta+ purposes, if he denies that the signature over the name of / is his signature, he will say there, I/ denies the truth of the matters stated in the written request an denies that the signature over the name / in anne+ IFJ is his signature. / serves his answer to #. Q. (hat will / do with that copy of answer' A. Ee must file it in court. ,%his is an innovation now, it was not so under the old rule.

So, / will file his answer to the request and serve a copy thereof on #. Q. (hat would be the effect of the failure of /' A. %o deny under oath the truth of these matters of facts, ,the genuineness of the signature., Ee is cleared to have admitted the truth of those matters of facts. Ee is cleared to have admitted that the signature over the name of / is the genuine signature of him. Q. (hat would be the effect now of the failure of / to answer in demand within the period mentioned in the request' A. %he truth of the matters of facts, the genuineness of that signature is cleared to have admitted them consequently. Q. (ill # still have to prove during the trial that he declared the land for ta+ purposes, that he paid the ta+es, will he ,#. still prove the signature over the name of / is the genuine signature of /' A. Ao more. (hy' /ecause these are admissions of facts )udicially made. %he rule is, facts )udicially admitted do not require proof and cannot be contradicted, under the party ma3ing the admission is allowed to withdraw the admission because he can show that the admission that he made was a result of a palpable mista3e or that he did not actually ma3e an admission. Let us assume that / after he failed to deny made oath the genuineness of that document. Q. Can he ,/. now prove during the trial that the signature is a forgery, that he did not affi+ that signature' A. Ao, why' /ecause you are not allowed to contradict your admission. So you will now appreciate how this request for admission can help discover the facts. %his request for admission will shorten the proceedings. (hy' /ecause if there is no denial under oath of the genuineness of that signature, there is no need for # to prove it, if there is no denial of he truth that # has declared the lot for ta+ purposes, there is no denial of the truth of the fact that # paid the ta+es, # does not have to prove these facts anymore. %hey are deemed proven. %a3e note however, that there is a limited use for an admission. %his admission of / is only for the purpose, in this case ,# vs. /.. t cannot be used as evidence against / in another proceeding. Under the rules on evidence, # cannot present / as his witness. %his is allowed but this right of a party to utili*e the adverse party as a witness is no longer absolute in the sense that there may be instances when a party cannot call on the adverse party as his witness. Bor instance in our e+ample, # called on / as his witness, / ob)ected. $eason: # did not send me any request for admission. / said, IUnder $ule 17, cannot be compelled to be a witness of #. can only be compelled to be a witness of # if # sent one request for admission on matters of facts of which have of personal 3nowledge.J $uling ob)ect of / is sustained. Ee cannot be compelled. Q. s the ruling correct' A. Hes. (hy' /ecause under the new rule now modifying the rules on evidence, before # can call on / as his witness, # should have first addressed to / request for admission of matters in issue of which / has personal 3nowledge. So # cannot call / to prove these matters within the 3nowledge of / unless # previously sent a request for admission to / on this matter. RENE NOTE%K X %he effect of a failure to ma3e a reply to a request for admission is that each of the matters of which n admission is requested is deemed admitted. X each matter must be denied SPCC B C#LLH under oath setting forth in detail the reason why he cannot truthfully admit or deny. &%E: #n admission under this section is for the purpose of the pending action only and cannot be used in any other proceedings. Rule 54 K Produ<tion or !ns1e<tion o: Do<u3ents or T;in0s Supposing in our e+ample, # alleges in his complaint that he brought this lot in question from C, the father of /. / wants to see this supposed deed referred to in the complaint of # has evidence of his claim that he bought this lot from C. / said, I# can you 3indly lend me for my securing this document you mention.J

Q. Fo you thin3 # will agree' A. &f course, in all probability # will refuse. Ee will say, IHou will have the opportunity to see this document in court when present it as evidence. n the meantime, you ,/. doubt that your father C sold this property. Since this is a document material to the claim of #. Q. Foes # have the duty to produce this document even before the trial for the scrutiny of /, so that before the trial / can now have an idea whether this is a genuine document or not' A. $emedy, $ule 1: Under this rule, a party to a case for good reason shown may file a motion requesting the adverse party to produce a document or ob)ect under the control or custody of the adverse party. Bor what purpose' So that the party as3ing for the production of document may e+amine the document, may copy the document may photograph the document. Q. s there a particular time when this motion on the part of / may be filed' A. Ao, unli3e a deposition pending action or written interrogatories or request for admission, which fi+ a period within which his remedies may be amended of, $ule 1: does not specify the period when a party can avail of this remedy. Q. f you were / in this e+ample, how would you avail of the benefits of $ule 1:' A. %his is what you will do: Bile a motion that # be required to produce that deed of sale he referred to. State in your motion the fact that this document referred to in the complaint contains evidence material to the case that this document is under the custody or control of #. State the reason why you want to e+amine it, and therefore pray that # be ordered to produce the document. &f course, the motion must be filed in accordance with $ule -8, it must be heard, i.e with due notice of #. &n the day of the hearing, the court will hear the parties and thereafter will rule on the motion whether to deny the motion in which case # will not be ordered to produce the document or grant the motion, in which case the court will require # to do the following: -. to produce the document before a specified person on a specific time, so that / can e+amine the document, photograph the document, copy the document if he ,/. wants. Aormally, when an order is issued by the court directing a party to produce the document, the document specifies the officer before whom the document should be produced. Aormally, it is the cler3 of court who is designated as the officer before the document should be produced. So in our e+ample, the court may report # to produce that document before its cler3 of court on a particular date and hour. %he order will direct # to allow / to go over the document, copy the document, photograph the document. (hen' &n the date and hour mentioned in the order. (here' /efore the person named in the order. Q. Can / however ta3e hold of this document and bring it home for scrutiny' A. Ao, he is only authori*ed to e+amine it before the cler3 of court. Q. (hat will be the advantage of this e+amining' A. f after / e+amining the document believes that that is a forgery, he can ta3e steps to have this matter inquired into. So he can now, for instance, move that # be required to submit this document for e+amination by a handwriting e+pert. %his rule equally applies within respect to real property or an ob)ect for that matter. Let us assume that # wants to see the land in question, which is now in the possession of /, for what purpose' %o determine, for instance, how big is the area thereof developed or planted by / so that # can estimate the damages, that he may have sustained by reason of his having been deprived of the fruits of the property. Q. f you were #, you would approach / to allow you enter and see the land and have it surveyed. Fo you thin3 / will allow you' A. Ee will not. Q. A. Q. A. (hat is the remedy' # will file a motion. (hat is the prayer in the motion' %hat / be ordered to allow # to enter upon the land survey, etc. So with the entry now of # upon the land, he will be able to determine the e+tent of the cultivation of /.

See, how their discovery will help #ZZZ RENE NOTE%K PROD&CT!ON OR !N%PECT!ON OF DOC&MENT% OR T'!N"% X essentially a mode of discovery X the $ules is limited to the parties to the action X the order under this $ule is issued only upon motion with notice to the adverse party %&BPOENA D&CE% TEC&M X means of compelling production of evidence X may be directed to a person whether a party or not X may be issued upon an e+ parte application.

Rule 5DK P;ysi<al and Mental eIa3ination o: Persons $ule 1; contemplates a situation where the mental condition or physical condition of a party is an issue. #nd the determination of that issue is required in order that a proper )udgment can be rendered. EIa31leK ( sued the husband E for declaration of nullity of marriage on the ground of fraud. (hy' /ecause whereas before marriage, E represented himself to be more than able to perform what is e+pected of a husband to the effect and dismay of (. %he representation turned otherwise. (hy' /ecause what was represented to be a Ideadly weaponJ turned out to be a Idead weaponJ. So the answer of E is I#nong sinasabi ng asawa 3o sa complaint ay hindi naman totoo.J So ( moved, by filing a motion that E be directed to submit himself to an e+amination of his physical condition before Fr. G. &f course this motion must be with due notice to E. %he e+amination was conducted out of curiosity, E obtained the copy of the report of Fr. G. Upon reading it, he has almost fainted. (hy' /ecause the result confirmed the allegation of the wife. /ut E is one who is easily daunted by this adverse report, he said, I%arantadong do3tor ito. Saan 3aya nag<aral ito hindi marunong. Naya 3oZ Naya ni 9isterZJ So he wanted to disprove. So what did he do' Ee engaged Fr. H. (hat for' %o e+amine him also on the matter in connection with which Fr. G e+amine him. %he e+amination was finished. Ee got also a copy of the report, you could )ust imagine what happen nowZ (hereas when he got a copy of the report of Fr. G, he nearly fainted, now that he received the copy of the report of Fr. H, he actually faintedZ (hy' /ecause the result of Fr. H"s e+amination confirmed the findings of Fr. G. %rialVVVVVVV.. ( now called on Fr. H. So in announcing the purpose for which she offered the testimony of Fr. H, ( said I( your honor, offers the testimony of Fr. H to prove that E cannot do it.J E said I ob)ect to Fr. H"s testifying, have not given him my consent to testify, so under the rules on evidence, he cannot.J %he court overruled the ob)ection and allowed Fr. y to testify on his findings. Q. s the ruling of the court correct' A. Hes. /ecause by obtaining the copy of the report of Fr. G, E waived the benefit that he may have over the testimony of Fr. H. So this is therefore a rule ,$ule 1;., which should be ta3en into account in relation to the rule on the confidentiality of the communication between a patient and a doctor. Hou remember the rule that a doctor of medicine, an obstetrician, a surgeon cannot without the consent of his patient testify on the following: -. 1. 2. %he advice that the doctor gave to the patient! %he treatment that the doctor administer to the patient! %he information that the doctor obtained in the course of attending professionally to the patient when information was necessary to enable the doctor to properly attend to the patient and which information if revealed, would embarrass the patient.

So this rule does not apply when $ule 1; is involved. $ule 1; therefore, qualifies the provision. RENE NOTE%K X (here the party e+amined requests and obtains a report on the results of the e+amination the consequences are: ,a. he has to furnish the other party a copy of the report of any previous or subsequent e+amination of the same physical and mental condition! and ,b. he waives any privilege that he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so e+amined him or may thereafter e+amine him. Rule 5@ K Re:usal to Co31ly wit; Modes o: Dis<overy

$ule 16 enumerates the sanctions that may be imposed by the court where a party does not comply to any of these modes of discovery. Bor instance, under $ule 12, when a witness in a deposition refuses to be sworn to or refuses to answer, Q. (hat are the sanctions' A. Under $ule 18 ,(ritten nterrogatories. when a party to whom written interrogatories are addressed refused to answer, what are the sanctions against him. Under $ule 17, when a party to whom the request for admission is sent, denies the truth of the matters stated therein and subsequently the party ma3ing the request proves it. Q. (hat are the sanctions against the party to whom the request was given' A. (hen a party refuses to allow, in disobedience to a court order, the adverse party to e+amine a document or and ob)ect or to permit an entry into premises. Q. (hen a party refuses to submit himself when ordered by a court to e+amination of his physical or mental condition, what are the sanctions' A. !n 0ist# t;ese are t;e san<tionsK Under $ule 16, the party who refuses may be arrested, the only instance where a party refuses may not be arrested is the case of the party who is required to submit himself to physical or mental e+amination, under $ule 1; when he disobeys, he cannot be arrested! in all other cases the refusing party may be arrested. Second, a party may be declared in default! %hird, a )udgment may be immediately rendered! Bourth, a complaint may be dismissed! Bifth, a party may not be allowed to introduce evidence to support Support a fact! Si+th, a contention of a party in connection with certain matters would be deemed established in accordance with his claim! Seventh, the party who refuses may be ordered to pay the e+penses Party including attorney"s fees. Rule 6BK Trial Unless otherwise provided by the court the order of trial is as follows: %he evidence of the parties is limited to the issues in the pre<trial order. %he only issues which the parties are allowed to present their evidence are those specified in the pre<trial order. %hat is why the pre<trial order if there are only two issues the parties cannot present any evidence on any other issues e+cept on the issues in the pre<trial order. Eowever, you ta3e into account $ule -> which allows amendment on pleadings to conform to the evidence. ?ust a reminder: there are two instances where issues are not raised in the pleadings may be tried in the court: -. where an issue is tried by a party without ob)ection on the part of the adverse party! 1. when an issue is tried by a party with the ob)ection of the adverse party, but the court finds that the presentation on that merits of the case would best be served by allowing evidence to be received in this case. So, in these two ,1. cases, these issues though not raised in the pleading may be proven during the trial. (e go now to $ule 2> proper. Unless otherwise stated by the order of the court, the order o: trial is as follows: -. the plaintiff presents his evidence in support of his compliant! 1. thereafter the defendants will present their evidence on: a. their answer to the complaint, if there is any! b. their counterclaim, if there is any! c. their cross<claim, if there is any! d. their third<party complaint, if there is any 2. thereafter, the parties against whom counterclaims or cross<claims were pleaded, they may have to adduce their evidence in support of their answer to these claims!

=. thereafter, rebuttal evidence! 8. it may be followed by sub<rebuttal evidence! 7. oral arguments! or :. in addition thereto, memoranda! ;. thereafter, decision. %his is the order of trial. Let us apply it. EIa31le: # vs. / #. -. Complaint P Cvidence in Chief 1. #nswer to reply to Counterclaim P $ebuttal 2. #nswer to $eply to Counterclaim of / P rebuttal evidence of / /. -. #nswer to complaint counterclaim vs. # 1. / rebut evidence of # 2. Cross<claim vs. C =. 2rd party complaint 8. #ns. P reply to counterclaim P claim of C C. -. #nswer to complaint of # 1. Counterclaim vs. # 2. #nswer counterclaim of / F. -. #nswer 2rd party complaint of / 1. Counterclaim vs. / # P #nswer to counterclaim of / and C / P #nswer to counterclaim of F C P #nswer to cross<claim of C Q. (hat are the pleadings of #' A. # has only his complaint. Q. (hat is the pleading of /' A. Eis answer to the complaint, his counterclaim against #. %here being a counterclaim against him ,#., the other pleading of # is his answer or reply to the counterclaim of /. Let us apply the order of trial. Unless otherwise ordered by the court, the initial presentation of the evidence in chief is commenced by #. So # now presents his evidence first on his complaint. Hou call this as his evidence in chief. n other words, # must produce evidence to support the factual allegations in his complaint, which are disputed in the answer of /. Q. (ill # now prove his defenses to the counterclaim of /' A. Ao. Ee ,#. will limit himself to only his complaint. %here will be a time for him to adduce evidence on the second pleading. #fter # finished presenting his evidence on the complaint, /, if he wants to, may now adduce his evidence. Q. (hy do we say I f / wants to, he may adduce his evidenceJ' A. /ecause / is not compelled to present his evidence. f # failed to adduce the quantum of evidence required to present, which is preponderance of evidence, / does not have to introduce his evidence, and still he ,/. will win. Let us assume that / elects to present his evidence.

Q. &n what manners will he now present his evidence' A. Ee will adduce his evidence first with respect to his defense in his answer. So whatever defenses he alleges in the answer will be the sub)ect matter of his evidence. #fter he has presented his evidence on these matters alleged in his answer, he may now adduce evidence on his counterclaim. #fter he has finished presenting his evidence on his counterclaim, he will now rest his case, in so far as the answer to a complaint is concerned. Q. (ill this end now the trial' A. Ao, not yet. (hy' /ecause # may present now his evidence on these matters ,#nswer or reply to /"s counterclaim because if / did not, then we say, there is no need for # to present his evidence in support of his answer to reply to the counterclaim. So the evidence in<chief now of / has also been terminated. Q. (hat follows ne+t' A. Under the orderVV $ebuttal evidence meaning # can rebut the evidence of /. / can rebut the rebuttal evidence of #. n actual practice, this is how it is doneV you will note that, per rule 2>, there is a separate stage for the presentation of evidence against the counterclaim, or evidence against the cross<claim. %here is another stage for the presentation of the rebuttal evidence. So, if we follow the order, there will be three ,2. stages when # would present his evidence. -. (hen he present his evidence on his complaint. 1. (hen he present his evidence in support of his answer to the counterclaim. 2. Later, his rebuttal to the evidence of /. /ut in the actual practice where the parties are only the plaintiff and the defendant, when # is proving his answer to the counterclaim of /, he may at the same time present his evidence of /. So, in actual practice, these two ,# presents his evidence, and at the presents at the same time the rebuttal are held simultaneously.. Q. (hat are these rebuttal evidence' A. %here may be evidence ta3en up when he presented his own evidence. So those matters ta3en up in the evidence in< chief of /, may now be rebutted by #. %here may also be new matters ta3en up in the rebuttal evidence of #, in which case / can rebut these rebutting evidence of #. Hou call these rebutting evidence of / the Sub<rebuttal Cvidence. #fter the evidence is in, then the court may order the case submitted for decision unless the court require parties either to orally argue or file a memorandum or require both parties to do both ,orally argue and submit a memoranda.. n our e+ample for instance, there are two,1. defendants ,/ and C.. Let us assume that / filed a cross<claim against C. Q. (hat will be the pleading of C' A. %he pleading of C will be his answer to the complaint of #, and he will have his answer to the cross<claim of /. Q. %his being the case, what would be the added pleading of #' A. Ee will have his answer or reply to the counterclaim of C. Q. Eow about /, what are the pleadings will he have' A. Ee will have his answer or reply to the counterclaim of C. Furing the presentation of / of his evidence, since he has a cross<claim against C, he will also produce his evidence in support of his cross<claim. So you will notice if he ,/. has a cross<claim, this is the order of presentation of his evidence. Eis ,/. evidence on his answer to the complaint of #, his counterclaim against #, his cross<claim against C.

C now will also present his evidence. Birst he will adduce his evidence in support of his answer to the complaint of #. Ee will present his evidence in support of his counterclaim against #. Q. (ill he ,C. now adduce evidence in support of his answer to the cross claim of /' A. Aot yet. %here will be a time for that. Let us assume that / has li3ewise a third<party complaint against F. Q. (hat will be the added pleading of /' A. Ee will have his 2rd party complaint. Q. Eow about the pleading now of F' A. Ee will have his answer to the third party complaint of /. Ee will now have his counterclaim against /. Q. (hat then will be the added pleading of /' A. Ee will have his answer or reply to the counterclaim of F. &rder of %rialVVV.. %he same things still with # in the order he presents his evidence to support his complaint and nothing else. Q. Eow about /' A. / will now introduce evidence on the following: -. #nswer to the complaint of #. 1. Counterclaim against #. 2. Eis cross<claim against C. =. Eis third<party complaint against F. Q. Eow about C' A. Same ,as before. Q. Eow about F' A. Ee will present his evidence in support of his answer to the third party complaint of /. Ee will now present his evidence in support of his counterclaim against /. %his terminates the presentation of the evidence in chief of #, /, C and F. Q. Bollowing that, who now will present his evidence' A. %he parties against whom a counterclaim or a cross<claim have been pleaded. n our e+ample, there is a counterclaim pleaded against # by / and C. So # now will produce his evidence in support of his answer to the counterclaims of / and C. Q. Eow about /, is there a counterclaim pleaded against him' A. Hes, the counterclaim of F. Q. Eow about C, is there a counterclaim pleaded against him' A. Aone, but there is a cross<claim. So C will produce his evidence in support of his answer to the cross<claim. Q. Eow about F, is there a counterclaim pleaded against him' A. Aone. So, the only persons who will present their evidence in support of their answers to the counterclaim or cross< claim are #, / and C. Bollowing this, we go again to the same order $ebuttal, Sub<$ebuttal then oral argument or memoranda or both, then decision. %his is the order of trial under $ule 2>. Under $ule 2>, the court (ay delegate the reception of evidence to a cler1 of court :ho i& a la:yer* This settles the conflicting decisions of the SC on the question of whether or not a cler3 of court can be commissioned to receive the evidence.

n one line of decision held that the cler3 of court have such authority. #nother line of decision tells that the cler3 of court have no such authority. %his provision now settles the question. The cler1 of court can receive the evidence provided the cler1 of court i& a (e(+er of the 'hilippine ,ar* Q. 9ay )udgment be rendered by the court without a trial during, which the parties may not present their evidence anymore' A. Hes, this is possible when for instance the parties stipulate on facts and the facts stipulated upon are enough to serve as basis of a )udgment. Q. 9ay a )udgment be rendered on the basis of the stipulations of facts' A. Hes, provided the facts are sufficient as basis of a )udgment. "rounds o: Post1one3ent Hou will note that under $ule 2> that a trial may be postponed on these two ,1. grounds: -. absence of evidence 1. illness of party or illness of a counsel

Q. (hat is the requirement in order that a motion based on these grounds maybe validly acted upon and granted by the court' A. %he rule requires that the motion must be supported by affidavit. n case the ground is absence of evidence, the affidavit must state the materiality of the evidence that is not produced and the efforts e+erted to. /ut even then, if the adverse party states that he does not have any ob)ection to the facts supposed to be established by the testimony of the absent witness, although he may later on ob)ect to their admissibility the rule says, the motion for postponement should not be granted. %he only problem on this rule is, it has been interpreted to be merely directory. Sometime however, during the incumbency of Chief ?ustice 9arcelo Bernan, SC issued a circular directing )udges of the trial court to implement this rule on postponement strictly meaning postponement should be granted e+cept when there is a compliance with this rule that any motion for postponement based on absence of evidence should be accompanied with its required affidavit. %he same thing is true when the ground of postponement is the ailment of the lawyer or of the client such motion for postponement may be granted or acted upon if it is supported by an affidavit showing that the presence of a counsel or a party before the court is necessary and that the character of the ailment is such as to e+cuse the non<appearance of the ailing lawyer or litigant. #gain, the only trouble with this is, it is more often honored in its brea3 than in its compliance. So, where a lawyer does not feel li3e going to court, then he )ustifies it. Ee presents a medical certificate. (here did he get this medical certificate' Brom a doctor friend who will say I#nong sa3it gusto mo'J these doctors are not reali*ing that for falsely certifying they incur criminal liability under $PC. %he lawyer is not reali*ing that for introducing in evidence this fa3e medical certificate he can also be held criminally liable. #nd worst of all, is a situation where the lawyer himself becomes a doctor. Bor instance, he cannot find immediately a doctor friend, he ma3es his own medical certificate. %hese things that actually happen practice. %hese are unethical practicesZZZ ?ust stic3 to the rule and you"ll never go wrongZZZ RENE NOTE%K Noti<e o: Trial < Upon entry of the case in the trial calendar, the cler3 of court notifies the parties at least five ,8. days before trial. i3itation on Ad=ourn3ents < one month for each ad)ournment < three months over all EI<e1tion #uthori*ed by the Supreme Court administrator "eneral RuleK %he )udge must himself personally receive and resolve the evidence of the parties.

'owever# the reception of such evidence may be delegated under the following conditions: ,a. %he delegation may be made only in defaults or e+ parte hearings or an agreement in writing by the parties! ,b. %he reception of evidence shall be made only by the cler3 of that court who is a member of the bar! ,c. said cler3 of court shall have no power to rule on ob)ections to any question or to admission of evidence or e+hibits! and ,d. Ee shall submit his report and transcripts of the proceedings, together with the ob)ections to be resolved by the court within ten ,->. days from the termination of the hearing. %us1ension o: A<tions Arti<le 5B6B NCC Every civil action or proceeding &hall +e &u&pended -. if willingness to discuss a possible compromise is e+pressed by one or both parties! or 1. if it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused to offer. Rule 61K Consolidation or %everan<e Q. (hen does <onsolidation ta3e place' A. f two or more cases have between or among them common questions of fact or of law, they may be consolidated in one court. EIa31leK # collision too3 place between the vehicles driven by # and the vehicle driven by /. %hese were both passenger buses. #s a result of the collision, damages were suffered by the buses and the passengers. So # now sued / in the $%C of Sue*on. %he passengers who were in)ured as a result of the collision, G, H and T, sued # and / in the $%C of Cavite. Q. (hat is the fact common to both cases' A. %hey originated from one and the same incident, i.eV the collision. Q. 9ay the two cases be )oined' A. Hes. Q. n what court' A. Cither in the court of Sue*on or in the court of Cavite. n this particular case, SC ordered the consolidation of these two cases in the $%C of Cavite. (hy' Bor practical purposes to minimi*e e+penses. (hy' %hose who filed the case in Cavite are residents of Cavite. f they were to go to Sue*on, if these case is consolidated there, that would entail much e+pense to the party. &n the other hand, these parties in the court of Sue*on both being bus companies could afford the e+penses of going to Cavite. f these cases were consolidated in Cavite. Q. (hat is the )ustification for the consolidation here' A. %here is a common question of fact or of law common in both cases. See, what would happen if cases were tried separately. %he possibility of a )udgment rendered by Sue*on $%C being different from the )udgment rendered by the Cavite $%C insofar as the cause of the accident is concerned may be conflicting, so to avoid this ,the possibility of conflict. it is better that these two cases be tried by only one court so that there will be no possibility of conflicting decisions. (hen cases are consolidated in one sala, Q. (hat would be the proper method for the court to adopt in resolving these cases' A. %he court where the cases are consolidated may try all the cases at the same time and render only one )udgment. n this e+ample, the Cavite court could try the Sue*on case and the Cavite case at the same time, render only one decision as if these two cases are only one. %here is another method of consolidation. %his presuppose that there are several cases of the same nature. Under this option, the court where the cases are consolidated may try only the principal case, to receive the evidence of the principal case leaving unheard the other cases. Say, if there are five ,8., under the second mode of trying these cases, the first case ,the principal of them. will be heard first, leaving untried the four ,=. other cases. #fter the main case has already been tried, then the court will render only one )udgment.

Q. s a court obliged to hear cases for consolidation' A* Under the old rule, if the Cavite Court did not want to hear Sue*on case, the Cavite court cannot be compelled to try. %he theory is that the court cannot be compelled to hear the case of another court. Under the pre&ent ruling, no more. #s a matter of fact :hen con&olidation i& proper, con&olidation i& (andatory* %his is the concept of consolidation. Q. (hat is severan<e' A. t is the opposite of consolidation. n a case of severance, there may be several claims or several reliefs in which case, instead of the court conducting a hearing on all the claims at the same time it will limit itself to the hearing of a particular claim. . # vs. /. %he complaint alleges three ,2. causes of action. %hese different causes of actions and you 3now under the rule, a party can )oin all these causes of action against another in only one complaint sub)ect only to the conditions of )oinder. %here is this complaint of # involving three ,2. causes of action. Aormally the trial would be conducted on all these causes of action and thereafter the court will render only one )udgment. /ut under this severance, court may hear only one cause of action remaining unheard the other causes of action. n our cases here, / now has a counterclaim against # in respect to his first cause of action. Under this rule on severance, the court will try this first cause of action, including the counterclaim of /. #fter the reception of evidence in this first cause of action, the court will now render )udgment leaving undecided these two cases ,these two causes of action.. %hereafter, the court again can hear these other causes of action. n other words, it is a trial by installments. n the meantime that this case is decided and these two other causes of action are not yet decided. Q. Can this be the sub)ect of enforcement already on it, can be the sub)ect of an appeal' A. Hes, but the court can suspend the enforcement pending the disposition of these two other causes of action. %his is how the rule wor3s. RENE NOTE%K "eneral RuleK Consolidation is discretionary with the trial court. EI<e1tionK (hen consolidation a matter of duty: -. when tried before the same )udge! 1. if filed with different branches of the same court having )urisdiction and one of such cases has not been partially tried. T;ree )ays o: Consolidatin0 Cases a. by recasting the cases already instituted, conducting only one hearing and rendering only one decision! b. by consolidating the e+isting cases and holding only one hearing and rendering only one decision! c. by hearing only the principal case and suspending the hearing on the others until )udgment has been rendered in the principal case ,Test;case 1et-od). Rule 65K Trial /y Co33issioner Q. (hat is the situation contemplated here' A. %a3e note that under $ule 2> the reception of the evidence is by the )udge himself or the court may in case of a default case, delegate the reception of the evidence to the Cler3 of Court, who is a member of the bar. Under $ule 21, the party who receives the evidence is other than the )udge. t is a third person called the Commissioner. Q. (hen may the case be tried by a ICommissionerJ' A. (here the parties agreed in writing that a commissioner be appointed. Supposing the parties did not agree in writing that a commissioner be appointed or that one wants a commissioner to be appointed, but the other refuses, or both refused to agree to a commissioner. Q. 9ay a commissioner nevertheless be appointed'

A. Hes. %here are three /9. in&tance& :hen the court can appoint a co((i&&ioner even :ithout the :ritten agree(ent of the partie& or even over the o+?ection of the partie&* %hey are the following: -. where there is a need for the reception of evidence consisting of a long accounts either from one or both of the parties! 1. when the ta3ing of the accounts is necessary for the purpose of informing the court before )udgment is rendered, or of purposes of carrying a )udgment into effect! 2. when a question of fact other than upon the pleadings arises upon motion or otherwise in any of stage of a case. %his last situation contemplates that a motion is filed based on facts not on record. %hen in the hearing on this motion a commissioner may be appointed to receive the evidence. %hese are the three ,2. situations where a commissioner may receive the evidence even over the ob)ection of the parties. Q. (hat is the e+tent of the power of the commissioner' A. %he general rule is, his powers are specified in the order appointing him. (hat he can do are specified. Supposing, however, the order does not say anything with respect to the limits of his authority. Q. (hat then is the authority of the commissioner' A. n effect, the commissioner here would be acting as if he were a )udge actually trying the case. #s a matter of fact, he may even resolve the ob)ections to the admissibility of evidence. %hat is why this is governed by this rule. (hen a reference is made, the cler3 shall forthwith furnish the commissioner with the copy of the order of reference. %he order of reference here is the order issued by the court appointing a commissioner and stating the commissioner what he is supposed to act on. So, if the specific issue for instance is the only matter in connection with which he is authori*ed to receive evidence, then it is only in respect to that issue he may receive the evidence. EIa31le: # vs. /. %he court may refer the reception of evidence with regard to the case in its entirety. Supposing there are three ,2. issues raised. %he court may refer this case to a commissioner for a trial of, let"s say only of issue Y-. So, this issue is the one, which is referred to the commissioner. %hat is what referred to here as the Iorder of reference.J %e<. 6 Rule 65 When a reference i& (ade, the cler1 &hall forth:ith furni&h the co((i&&ioner :ith a copy of the order of reference* The order (ay &pecify or li(it the po:er& of the co((i&&ioner, and (ay direct hi( to report only upon particular i&&ue&, or to do or perfor( particular act&, or to receive and report evidence only, and (ay fiC the date for +eginning and clo&ing the hearing&, and for the filing of hi& report* Su+?ect to the &pecification& and li(itation& &tated in the order, the co((i&&ioner ha& and &hall eCerci&e the po:er to regulate the proceeding& in every hearing +efore hi( and to do all act& and ta1e all (ea&ure& nece&&ary or proper for the efficient perfor(ance of hi& dutie& under the order* @e (ay i&&ue &u+poena& and &u+poena duce& tecu(, &:ear :itne&&e& and unle&& other:i&e provided in the order of reference, he (ay rule upon the ad(i&&i+ility of evidence* The trial or hearing +efore hi( &hall proceed in all a&pect& a& it :ould if held +efore the court* So that in what he can do ,underlined provision. if he is not restrained by the order, he can rule on the admissibility of evidence. n short, the commissioner conducts the hearing as if he were a )udge. (hat the )udge can do, generally, he can do. Q. (hat is the first then that the commissioner does when he receives the order of preference involving parties to a conference' A. Conference must be held not later than ten ,->. days from his receipt from order of reference. /efore the commissioner sets the date of the hearing, the parties will appear before him, so he will conduct the trial. So he finishes the trial. Q. (hat shall he now do' A. Ee will now prepare a report. Submit the report to the court. Q. (hat is this report all about'

A. %he report concerns the proceedings that were conducted before him. f he is not prohibited by the order of preference, he can submit his findings of fact. t is as if he was the one who evaluates the evidence. So, he forwards then to the court the entire records including the transcripts of the proceedings, the e+hibits if there are any. Q. (hat is the duty of the Cler3 of Court upon receipt of this report' A. %he Cler3 of Court is mandated to furnish to the parties # and / copies of the report. Q. (hat for' A. So that # and / can ma3e their comments on the report of their ob)ections to that report. %hey can do this within ten ,->. days from their receipt of the copy of the report. Q. (hat shall be done with this report upon the filing of these commentsOob)ections or upon the e+piration of the period of the filing thereof' A. %he court will now set the report for hearing. #fter the hearing, the court will resolve the report, either to approve the report or disapprove the report, recommit the report to the commissioner or require the parties to present their evidence either before the commissioner himself or before the court itself. Q. (hat is meant by this' A. %he report is not binding on the court, it is merely recommendatory.

%e<. 1B Rule 65 Upon the filing of the report, the partie& &hall +e notified +y the cler1, and they &hall +e allo:ed ten /#6. day& :ithin :hich to &ignify ground& of o+?ection& to the finding& of the report, if they &o de&ire* -+?ection& to the report +a&ed upon ground& :hich :ere availa+le to the partie& during the proceeding& +efore the co((i&&ioner, other than o+?ection& to the finding& and conclu&ion& therein &et forth &hall not +e con&idered +y the court unle&& they :ere (ade +efore the co((i&&ioner. %e<. 11 Rule 65 Upon the eCpiration of the period of ten /#6. day& referred to in the proceeding &ection, the report &hall +e &et for hearing, after :hich the court &hall i&&ue an order adapting, (odifying, or re?ecting the report in :hole or in part, or reco((itting it :ith in&truction&, or reAuiring the partie& to pre&ent further evidence +efore the co((i&&ioner or the court* ,%hereafter the court will decide the case.. RENE NOTE%K X $efusal of witness to testify or give evidence P deemed indirect contempt of the court which appointed the commissioner. Rule 66K De3urrer to Eviden<e Q. (hat is the situation contemplated by this rule' A. #fter the plaintiff has rested its case, it is now the turn of the defendant to present his evidence. n our e+ample, # finished presenting his evidence. # said I now rest my case, your Eonor.J 9eaning, # has no further evidence to adduce. So, for instance, his witnesses are G, H and T. %hen he have e+hibits I#J, I/J and ICJ. So after these three ,2. ,G, H and T. finished testifying, he ,#. will formally offer his documentary e+hibits. # will say, I have no more testimonial evidence to offer, now present formally my documentary e+hibits.J Court: (hat does / say' /: I do not have any ob)ection, Hour honor.J Court: IProceed #J #: I offer, your honor, the following e+hibits: I#J, to prove the following! I/J, to proveV! ICJVVV..J Court: (hat does / say' /: I have no ob)ection.J &r I ob)ect to C+hibit ICJ. ,(hen you ob)ect always state the legal ground. Hou cannot say. I ob)ectJ and then sit down. Court: (hat is the ground' /: I/ahala na 3ayo )udgeZJ Hou must state the ground for ob)ections so that the court may rule on whether the ob)ection is proper or not, because an ob)ection may be proper but the ground is improper. t is proper to ob)ect, but the ground raised is improper.

So the court will overrule the ob)ection. %his is the reason why the ob)ection should always be stated with its respective ground. %he ob)ection can be ruled upon only on the basis of the ground relied. Court: IC+hibits I#J, I/J and ICJ are admitted.J Q. (hat is now the ne+t thing for / to do' A. t is now the turn of / to present his evidence if he wants to. (hy Iif he wants toJ' /ecause he ,/. may not li3e to present his evidence. Hou cannot compel him because a party has to choose the evidence he presents. Ee cannot be compelled. So, if he ,/. does not want any evidence, no power on earth can compel him. /ut instead of immediately saying, I will not present any evidence,J he wants to test whether the evidence of # is sufficient or not. Q. (hat legal device is he allowed to utili*e' A* De(urrer to evidence. Q. (hat is the <on<e1t o: de3urrer to eviden<e' A. (hen / files a demurrer to evidence, he simply says in effect. %he evidence of # consisting of the testimonies of G, H and T and the document e+hibits I#J, I/J and ICJ even if given all their weight they are utili*ed to is not simply sufficient to prove the case of #. %herefore, it is useless for me to present my evidence because under $ule -22, it is the duty of # to discharge the burden of proof and since he failed, it"s not my duty anymore to prove my defense. %his is the assumption when / files the demurrer to evidence. %he evidence of # is insufficient, therefore the complaint must be dismissed. %he court has options in ruling on this demurrer to evidence. t may deny the demurrer to evidence. Q. (hat is the implication of its denial of the demurrer to evidence' A. Brom the point of view of the court, the evidence of # is sufficient prima facie to support his case. %he court may grant the demurrer. Q. (hat is the implication of the order of the court granting the demurrer' A. t is a pronouncement by the court that the evidence of # is not sufficient to prove his case. Q. (hat then would be the effect of grant' A. %he complaint of # is dismissed. /ut this order of dismissal may be appealed by #. %he possibilities are, the appellate court may affirm the order of dismissal or it may reverse the order of dismissal, it simply means that the appellate court agrees with the trial court that the evidence of the plaintiff is insufficient. #nd so, the complaint remains dismissed. %he trouble arises when the order says, the order of dismissal is improper. %herefore, the order of dismissal is reversed. Q. (hat is the implication of that' A. %he implication is, that the evidence of # is sufficient to prove his case. So, the order of dismissal is set aside. Q. (hat is the effect of the reversal order of dismissal on the right of / to present his evidence' Can he present his evidence or not' A. Ee cannot present his evidence, because by electing to file the demurrer to evidence, he in effect submitted the case for decision solely on the basis of the evidence of the plaintiff ,#.. /ut supposing in our e+ample at the time / filed the demurrer to evidence, he said, Iin the event the demurrer to evidence is granted and the order of dismissal is reversed, reserved the right to present my evidence.J Q. (ill this reservation allow him to present his evidence' A. Ao. Hou cannot reserve the right to present evidence in the event the order of dismissal is reversed on the appeal. RENE NOTE%K DEM&RRER TO E-!DENCE X it is presented after the plaintiff has rested his case MOT!ON TO D!%M!%% X presented before a responsive pleading ,answer. is

X the ground is based on insufficiency of evidence T)O 9!ND% OF DEM&RRER TO E-!DENCE C!-! CA%E% -. defendant need not as3 for leave of court 1. if the court find& the plaintiff& evidence in&ufficient , it will grant the demurrer by dismissing the complaint. %he )udgment of dismissal is appealable by the plaintiff. f the plaintiff appeals and )udgment is reversed by the appellate court, it will decide the case on the basis of the plaintiff"s evidence with the consequence that the defendant already loses his right to present evidence. Ao res )udicata in dismissal due to demurrer. 2. if court denie& de(urrer, defendant will present his evidence.

made by the defendant X it may be based on any of those enumerated in $ule -7 CR!M!NA CA%E% -. leave of court is necessary so that the accused could present his evidence if the demurrer is denied. 1* if the court find& the pro&ecution& evidence in&ufficient, it will grant the demurrer by rendering )udgment acquitting the accused. ?udgment of acquittal is not appeallable! double )eopardy sets in.

2. if court denie& the de(urrer ,a. if demurrer was with leave of court, accused may present his evidence! ,b. if demurrer was without leave of court, accused can no longer present his evidence and submits the case for decision based on the prosecution"s evidence.

Rule 6?K *ud03ent on t;e Pleadin0s %his rule presupposes that the answer of the defendant does not tender any issue. /efore that, the answer against the material allegations in the complaint. EIa31le: # vs. /. %his is an action for recovery of sum of money. %he complaint alleges in substance that # e+tended a loan to / as evidence by a promissory note signed by /. # copy of that promissory note is attached to complaint as #nne+ I#J. / has not paid the loan notwithstanding demand on him to do so, the period for the payment thereof having already become due. Q. (hat is now the prayer of #' A. %hat a )udgment be rendered against / to pay the amount of promissory note. Q. (hat is the answer of /' A. / denies all the allegations in the complaint. Q. (hat is his ,/. prayer now' A. %hat the complaint of # be dismissed. Q. s there an issue tendered by the answer of /' A. Under the rule on denial, was there a specific denial of the allegations in the complaint' Aone. (hy' /ecause for a specific denial, to be specific, the rule require the defendant to do any of the following: -. specify the matters he denies! 1. allege the facts in support of his denial. f the allegation is made up of two or more facts, part of which he admits, part of which he denies, the rule requires him, specify so much of the allegation that he admits as true and deny the rest. 2. if he is not in a position to state whether he admits or denies the allegations, he is required to state that he has no 3nowledge sufficient to form a belief as to the truth of the allegation in the complaint. %his 3ind of denial is the effect of the specific denial. %his 3ind of denial is the effect of the specific denial. Q. Fid / complied' A. Ao. %his is a general denial. Q. (hat is the effect of a general denial' A. #n admission of all the allegations. Since the promissory note is an actionable document because that is the basis of the action of #,V

Q. (hat is the effect of failure of / to deny under oath the genuineness and due e+ecution of this document' A. Ee is deemed to have admitted the genuineness of the note. So, he now admits for his failure to deny under oath the promissory note. So, there is nothing to be proven by # here, everything is already admitted. n this case, # may now file a motion that a )udgment be rendered on the basis of only what is alleged in the complaint. Q. (ill the court receive evidence either for # or / before )udgment can be rendered' A. Ao more. %here is no reception anymore. %his is how the )udgment on the pleading is rendered. %here is one limitation, however, with respect to )udgment of the pleading, where damages, which are not liquidated are alleged and attorneys fees are also as3ed to be paid, but there is no proof of this amount of the unliquidated damages. Q. Can there be a )udgment including damages and attorneys fees done in which case if the plaintiff wants a )udgment include attorneys fees and damages he must produce evidence' A. (e have a rule with respect to attorneys fees that, not every litigant who prevails in the case is entitled to attorneys fees, because to do so would be to ma3e pre)udice on the right of #. Bor attorneys fees to be awarded, the basis thereof must be stated in the decision. n other words, the decision must always state attorneys fees awarded the basis thereof. n the absence of that )ustification, no award of attorneys fees can be rendered unless the attorneys fees is considered as liquidated damages. #gain, in the case of unliquidated damages, you have to prove the amount thereof. n the absence thereof, you cannot render a )udgment of the pleadings on damages. RENE NOTE%K );at <ases not a11li<a/leK -. nullity of marriage 1. annulment of marriage 2. legal separation < 9aterial facts of the complaint shall always be proved. Rule 6CK %u33ary *ud03ents Q. (hat is the <on<e1t o: su33ary =ud03ent' A. # summary )udgment is one, which is rendered by the court on motion of a party, either of the plaintiff or the defendant where there is actually no genuine issue between the parties. n this case, a )udgment is rendered on the basis of evidence which is not receive in the manner that evidence is received under $ule 2> ,%rial. $emember that we too3 up in $ule 2>, a plaintiff must present his evidence, the defendant must assert his evidence, thereafter, the court will decide the case. %he reception of evidence is governed by Sec. 2= of $ule -22,Presentation of Cvidence.. n a summary )udgment, when a )udgment is rendered, there is evidence received but it is evidence, which is not formally offered in evidence. Q. (ho is entitled to a summary )udgment' A. Cither the plaintiff or the defendant. !n the ca&e of the plaintiff, the defendant who has a counterclaim, the plaintiff who has a right to a declaratory relief may file a motion for summary )udgment. (hen' #fter an answer to his claim has been served on him. EIa31le: # vs. / ,Bor Sum of 9oney. %he allegations in the complaint are substantially as follows: # e+tended a loan to /. / signed a promissory note to evidence the loan. %he period for payment of the loan has already e+pired and demands notwithstanding, / failed to pay the loan. Q. (hat is the prayer now of #' A. %hat )udgment be rendered ordering / to pay him the amount of loan.

Q. (hat is the answer of /' A. / denies the allegations in the complaint that he obtained money from #! that he signed the promissory note, #nne+ I#J. %hat the demand was made. Q. (hat is his ,/. defense' A. f there was any loan e+tended to me ,/., he already paid the loan. Brom the face of the pleadings, there are issues: -. Fid he ,#. e+tend the loan' 1. Fid he ,/. sign the promissory note' 2. Fid he ,/. pay if there was a loan' Under $ule 2>, a trial should be held during which # and / are to prove their respective sides of the issues. /ut the truth however is this: %hat # indeed gave a loan to /. %hat / indeed signed the promissory note. %hat / did not pay the loan. Q. (hat is the remedy available to #, so that even without a formal presentation in evidence by # and /, a )udgment may now be rendered in favor of #' A. Under $ule 28, this is the remedy available to #V Let us say # ta3es the deposition of G under $ule 12. Q. (hat did G say in his depo&ition' I was as3ed by # to go to / and collect from him the amount covered in the promissory.J / replied to me, I%ell # that will pay him after have sold the tobacco leaves e+pect to harvest from my land.J went bac3 to / on the date he specified. / said, I cannot pay # because was not able to harvest any tobacco leaf. (hy did not harvest' /ecause did not plantZJ %his is the deposition. # sent a reAue&t for ad(i&&ion to /. %o /, ,defendant. @reetingsZ Hou are hereby requested to admit the truth of the following statements: %hat G went to you to demand in my name that you pay the promissory note! %hat you told him that you will pay me after you shall have sold the tobacco leaves you e+pect to harvest from your farm! and %hat he went bac3 to you on the specified date and you told him that you cannot pay me because you have not planted any tobacco in your field %hat you do not have any receipt showing that you paid any amount.

-. 1. 2. =.

Q. (hat do we learn about the request' A. %hat / did not send # within the time mentioned in the request any denial under oath of the matters referred to in the request. # now e+ecuted an affidavit* Q. (hat is the content of the affidavit' A. %he matters related to the law, the failure of / to pay, e+ecution by / of the promissory note, the fact that G went to / to demand payment and the answers of / to the demands of G. Q. (hat do you notice now' A. # now has in his hands the deposition of G, the request for admission, the affidavit of #. Q. (hat does # now do with these papers' A. Ee will attach them now to a motion in which he prays for a summary )udgment. Q. (hat does # do with this motion to which are attached these documents' A. Ee will file them and serve a copy thereof on / at least ten ,->. days before the hearing of the motion.

t means to say, that a motion for summary )udgment being litigated must be set for hearing strictly in accordance with $ule -8. Aote that under $ule -8 ,9otions., a motion should be heard not later than -> days after it is filed. %his $ule 28 is an e+ception to the $ule -8. (hy' /ecause you cannot hear the motion for summary )udgment within -> days from its filing. (hy' /ecause between the filing and the hearing, a period of not less than -> days must first elapsed to allow the defendant to file his opposition if there is any to the motion. Q. (hat shall / do after he have been served' A. f he ,/. so desires, he may also file an opposition to the motion for summary )udgment. Li3e #, he may also support his opposition with his sworn affidavit, deposition, or other documents. Q. (hat will / do with the opposition' A. Aaturally he must file it with the court and serve on # a copy later on. &n the appointed day of hearing, which is not earlier than -> days following the filing thereofV Q. (hat shall the court do' A. %he court will now hear the motion. Q. Eow will the court proceed to hear the motion' A. %his is what the court will do: t will e+amine the complaint, the answer, the motion for summary )udgment and the documents attached thereto, the opposition if any and the documents attached thereto. %he court will e+amine both and if the court find from the documents, the pleadings and the documents attached to the pleadings and motions and oppositions, the court finds that e+cept to the amount of damages the plaintiff is entitled as a matter of law to a )udgment because the issues raised are not substantial but they are merely sham, then the court will render a )udgment in favor of the plaintiff. /ut if the court e+amined the pleadings, documents attached to the motions and oppositions and finds that they are disputed and therefore cannot render a )udgment on the call of the motion, then the court will, in addition to e+amining the records shall determine what are the facts that are not substantially disputed, separate them and determine the facts which are not disputed, thereafter the court will conduct a trial on the matters that are disputed and thereafter render the )udgment. See now why it is summary. /ecause there is no reception of evidence if the court finds from the pleadings that a )udgment can properly be rendered in favor of the plaintiff. Q. (hat now would be the basis of the )udgment' A. &nly the pleadings and the documents attached to the motion and the documents attached to the opposition if there is any. Q. Fid you notice in our e+ample whether these documents attached to the motion or to the opposition were personally offered' A. Ao, they were not formally offered. %hey are merely attached. Q. (hat do we learn about the Ioffer of e+hibitsJ' A. Ao evidence shall be considered unless the offer is made and the purpose of the offer is specified. Eere there was no purpose, here the purpose was not specified, but they were introduced. %hat is how summary )udgment wor3s. n our case, it was the plaintiff alone who filed it. Q. (hen will # file his motion for summary )udgment' A. #fter / has served his answer on #. Q. Cannot / also file a motion for summary )udgment' A. Hes, the rule says, Iat any time.J Q. Foes that ,Iat any timeJ. mean that even before / has served his answer on #, he can now file a motion for summary )udgment' A. Hes. %his is the distinction between a motion for summary )udgment on the part of the plaintiff and the motion for summary )udgment on the part of the defendant.

!n the ca&e of the plaintiff, he cannot file the motion for summary )udgment until he has been served the answer. #nd this is for obvious reason, how can # determine whether there are issues generally raised if there is no answer which have been filed. ,ut in the ca&e of the defendant, noZ Ee does not have to file the answer, because on the basis only of the complaint, a summary )udgment can be effected. # sub)ect for a summary )udgment on the part of the plaintiff is not limited to the claim he has against / ,defendant.. t may also include a claim arising from a right involving a declaratory relief. Summary )udgment for claimant. A party &ee1ing to recover upon a clai(, counterclai( or cro&&3clai( or to o+tain a declaratory relief (ay any ti(e after the pleading and an&:er thereto ha& +een &erved, (oved :ith &upporting affidavit, depo&ition&, ad(i&&ion& for &u((ary ?udg(ent& in hi& favor upon all or any party thereto* Q. Eow does this rule that a summary )udgment may be obtained in case of a counterclaim or a cross<claim arise' A. n our e+ample for instance, in this action for money, / has a counterclaim against #. Q. Can / file a motion for summary )udgment on this counterclaim' A. Hes. Q. (hen' A. #fter # has served on / his answer to the counterclaim, then / can move a summary )udgment on the counterclaim. Let us suppose that / has a cross<claim against C. Q. Can / file a motion for summary )udgment on the cross<claim against C' A. Hes, after C has served on / his answer to the cross<claim. Q. (hat will be the procedure' A. %he same procedure that may be adopted by # if he files a motion for summary )udgment against /. %he right to file a motion for summary )udgment belongs both to the plaintiff and the defendant. %he only difference being that, in the case of the plaintiff, he can file a motion only after he has been served with the answer to his claim. n the case of the defendant, he can file his motion for summary )udgment at any time even before he serve his answer. # counterclaimant, a cross<claimant can li3ewise file a motion for summary )udgment with respect to the counterclaim, with respect to the cross<claim at anytime after an answer thereto has been served on him. RENE NOTE%K X Summary ?udgment is especially applicable to special civil action for declaratory relief. X Proper only in actions -. to recover a debt 1. for a liquidated sum of money 2. for declaratory relief %&MMAR$ *&D"MENT X based on the pleadings, depositions, admissions and affidavits X available to both plaintiff and defendant X there is no genuine issue between the parties, i.e. there may be issues but these are irrelevant X -><day notice required X may be interlocutory or on the merits *&D"MENT ON T'E P EAD!N"% X based solely on the pleadings X generally available only on the plaintiff, unless the defendant presents a counterclaim. X there is no issue or there is an admission of the material allegations. X 2<day notice required X on the merits *&D"EMENT B$ DEFA& T FRule @8 X based on the complaint and evidence, if presentation is required X available to plaintiff X no issues as no answer is filed by the defending party. X 2<day notice rule applies X on the merits

Rule 67K *ud03ents# Final Orders and Entry T;ereo: %e<tion 1. A ?udg(ent or final order deter(ining the (erit& of the ca&e &hall +e in :riting per&onally and directly prepared +y the ?udge, &tating clearly and di&tinctly, the fact& and the la: on :hich it i& +a&ed, &igned +y hi( and filed :ith the cler1 of court. Section - of $ule 27 provides that the court must render a )udgment. %he rule requires that the )udge himself must personally prepare the )udgment. Q. Foes this mean that the rule requires the )udge to be a typist or stenographer' A. Ao. (hy' %he requirement that the )udge must personally prepare the )udgment simply says that the )udge must be the one to ascertain the facts that are established by the evidence. %he )udge for instance, cannot commission the cler3 of court to study records of the case, evaluate the evidence and then write the decision. %he rule requires the court to e+amine the records and evaluate the evidence, come up with the conclusion and thereafter ma3e the decision. %he mechanical act of writing a decision can be delegated to a third person. So, this is how it is done. %he )udge e+amines the evidence hereafter arrives at a conclusion. Q. So what does he ,)udge. do' A. Ee now calls on his secretary or his stenographer and dictate to the stenographer. %he stenographer thus writes the decision. %hereafter the )udge signs it. Q. s this a decision that must be personally prepared by the )udge' A. Hes, because the rule does not require he ,)udge. would be the typist or stenographer, otherwise he would not have devoted so many years of his life studying law only to become a typist or a stenographer. %he rule further requires that the )udge must ma3e in his decision the complete findings of fact. Q. (hat is meant by this ,co(plete finding& of fact. ; A. # complete finding of fact presupposes that the court has studied the evidence and found out what the facts that have been established in by the evidence. What the la: reAuire& hi( to do i& to (a1e a finding of fact&* The rule doe& not reAuire hi( to (a1e a conclu&ion of fact&. Bor instance, the issue is whether # is the owner of the land in question. %he court now assesses the evidence of # consisting of the testimonies of G, H and T. Cvidence of / consisting of the testimonies of C, F and C. C+hibits of # are C+hibits I#J, I/J and ICJ. C+hibits of / are C+hibits I-J, I1J and I2J. %his is what the court wrote in the decisionV I#fter going over the evidence presented by # and /, the court finds that # is the owner of the land. (herefore, )udgment is rendered declaring # the owner of the land and ordering / to surrender its possession to #. %he court further orders / to pay # in damages in the amount of P-,>>>,>>>.>-.J Q. s that a findings of fact' A. Ao. %hat is a conclusion brought on the evidence. Q. (hat would have been the findings of fact here' A. %he court should have stated in the decision the basis of its findings that # is the owner. Q. n this e+ample, is there anything said in the decision, which supports the conclusion of the court' A. %here"s nothing. So that when / for instance, appeals from the )udgment, what will be the basis of his assigned error when there is nothing in the decision for which an error may have occurred. %his is what the court should have done to support its conclusion that # is the owner of the land. Bor instance, it will say, Ithe evidence shows that this land originally belonged to G, the father of #. %his land is covered by a Certificate of %itle in the name of G. ,e+hibit I#J., G paid the ta+es of this land. ,C+hibit I/J. # has been in possession of this land until he died -6;>. #fter the death of G, #, his son, too3 possession of the land. So, from this, you can infer why # is the owner. %hose statements after the findings of fact. %hose are supposed to be stated. A ?udg(ent &hould +e in :riting, dated and &igned +y the ?udge. Unless it is in writing and signed by the )udge and dated, it is not a )udgment at all.

Q. Supposing the court promulgated a )udgment in open court, is that a valid )udgment' A. Ao. (hy' /ecause a )udgment is supposed to be in writing and duly promulgated. #s long as the )udgment, though signed by the )udge is not promulgated, it is no )udgment V Q. (hen is )udgment deemed promulgated' A. # )udgment is deemed promulgated on the day the )udge gives his )udgment or decision to the cler3 of court. !t !& the filing of the ?udge :ith the cler1 of court that con&titute& the pro(ulgation thereof . n our e+ample, the court render )udgment in favor of #, already signed, but 3ept his )udgment on his chamber. Q. s this a )udgment within the meaning of $ule 27' A. Ao. (hy' /ecause it has not been delivered to the cler3 of court. Supposing the )udge delivers this to the cler3 of court, Fec. -, -66;. Q. (hen is the )udgment deemed to have been promulgated' A. &n this day, Fec. -, -66;. t"s the delivery of the )udgment to the cler3 of court that constitutes its promulgation. Q. (hat are the 1arts o: t;e =ud03ent' A. Hou have the following: -. opinion of the court! 1. dispositive portion of the )udgment! 2. date of )udgment! and =. promulgation Q. (hat is meant by the opinion of the court' A. %he opinion of the court consists of the findings of fact of the court. ts findings of facts would be the basis of dispositive portion of the )udgment. Bor instance, #. vs. /. %he court rendered a decision. %he first part of the )udgment is the discussion of the court of the evidence. Supposing, from its discussion the court concludes that # is the owner of the land. Q. (hat now is the )udgment of the court here' A. t is that part of )udgment or decision which ad)udicates the rights of the parties. t says hereV I(EC$CB&$C, the court hereby renders )udgment declaring the owner of the land.J %his is the )udgment. %his is the ad)udication of the issues of the parties. Q. s it possible that there be a contradiction between the opinion of the court and the )udgment of the court' A. Hes, it is possible. Bor instance, in our e+ample here, the discussion and the opinion points to this conclusion that # is the owner of the land. /ut the dispositive portion says, I(herefore, the court hereby declares / the owner of the land and dismisses the complaint.J Hou will notice that there is a discrepancy between the opinion of the court and the dispositive portion. (hereas the opinion of the court the discussion of the court, # is the owner, and in the dispositive portion, he is not the owner, it is /. %his reminds ?udge Laggui of an incident where the counsel for the accused appeared for preliminary investigation in the case of theft of large cattle. %he owner of the cow supposedly stolen engaged a private counsel. %he private counsel appeared for a preliminary investigation. /ecause there was no prosecutor representing the state, the counsel for the accused moved that the private counsel be disqualified on the theory that private counsel cannot appear for the state unless the public prosecutor has authori*ed him to do so. Since the public prosecutor was not in court and there was no authority of the private counsel to represent the state he has brought to present the evidences of the state. #fter arguments, the court ruled the motion to disqualify the private counsel is denied. Eowever, the counsel for the private party is required to first secure the authority of the fiscal before he can proceed. ,Aotice that the opinion varies with the dispositive portion. %he dispositive portion should prevail.

Q. (hat"s the <on<e1t o: several =ud03ents' A. n the case of several )udgments, there are two or more defendants and the liability that they have with respect to the obligation is )oint. n case li3e this, ,)oint. a )udgment may be rendered against one or some of them in the meantime, the case against the others may be held in abeyance and thereafter, another )udgment may be rendered. EIa31leK # is the creditor of / and C. %he liability of / and C is )oint. Let us say, they argued a promissory note in favor of # for P8>>,>>>. Let us assume that # prosecute his case against / only because in the meantime C although sued and inspite his answer in that in the meantime, in the )urisdiction of the court. So the court tries the case with respect to / only. Q. Can this be done' A. Hes. Q. n the meantime that this case against / is being heard, what becomes of his case in so far as # and C are concerned' A. ts suspended. So this case by # against / can proceed to finality. So the court can tender a )udgment at here. (hen C is bac3 in the Philippines, the court may now hear the case against C and another )udgment may now be rendered. Since the liability is )oint, the )udgment that may be rendered here will only cover the liability of / to the e+tent of P18>, >>>. So the court rendered a )udgment against / in favor of #. the )udgment will be limited only to P18>,>>>.>>, it will not affect the other P18>,>>>.>> which pertains to C. so when the court renders its )udgment with respect to C, the court will limit its )udgment to the amount of P18>,>>>.> corresponding to the liability of C. Q. So what do you notice here' A. %here are two )udgments. &ne with respect to # and / and the other with respect to # and C. So we call these )udgments here several )udgments. %his applies only where the liability of the defendant is )oint and severable. f the liability is solidary, this cannot be done. So if the obligation of / and C is solidary. Q. Can you have this case' A. Ao. Hou render a )udgment only one. Q. Eow about se1arate =ud03ent, what is the difference between a separate )udgment and a several )udgment' A. EIa31le: %he causes of action of # are -, 1, 2. So there are three causes of action against /. / has several defenses. Let"s say, permissive counterclaim against #. Q. (hat can be done in the trial of this case' A. %he court may conduct a trial with respect to these first two causes of action holding in abeyance the hearing on the third cause of action. #fter the court has heard all these ,two causes. causes of action including counterclaims that # had been raised with respect to these two causes of action. %hen the court will render a )udgment on these two causes of action holding in abeyance the hearing on the third cause of action. %hereafter, the court will hear this third cause of action. So you will see that there is already a )udgment on the first two causes of action. %hen the court will render a )udgment on this third cause of action. %he court will also hear separately the permissive counterclaim and thereafter render a )udgment thereof. Q. So how many )udgments now do you have' A. %here are three ,2.. So you have separate )udgments. Q. (hat do you consider as the difference between separate )udgments and several )udgments' A. n &eparate ?udg(ent&, what is several are the causes of action or claims or counterclaims. n the case of &everal ?udg(ent&, what are several are the number of defendants.

%everal *ud03ents F%e<. ? Rule 678 !n an action again&t &everal defendant&, the court (ay, :hen a &everal ?udg(ent i& a pro&per, render ?udg(ent again&t one or (ore of the(, leaving the action to proceed again&t the other& . %e1arate *ud03ents F%e<. C Rule 678 When (ore than one clai( for relief i& pre&ented in an action, the court, at any &tage, upon deter(ination of the i&&ue& (aterial to a particular clai( and all counterclai(& ari&ing out of the tran&action or occurrence :hich i& the &u+?ect (atter of the clai(, (ay render a &eparate ?udg(ent di&po&ing of &uch clai(* The ?udg(ent &hall ter(inate the action :ith re&pect to the clai( di&po&ed of and the action &hall proceed a& to the re(aining clai(&* !n ca&e a &eparate ?udg(ent i& rendered, the court (ay order it& enforce(ent until the rendition of a &u+&eAuent ?udg(ent& and (ay pre&cri+e &uch condition& a& (ay +e nece&&ary to &ecure the +enefit thereof to the party in :ho&e favor the ?udg(ent i& rendered* Q. n this case of separate )udgments, for instance, after the )udgment in the first two causes of action has become final, may it be e+ecuted or may be the sub)ect of an appeal' A. Aot yet, because the court may defer the enforcement thereof to await the result of the hearing of the other cause of action. %his is what is meant by separate )udgment. %e<. 7 Rule 67 When a ?udg(ent i& rendered again&t t:o or (ore per&on& &ued a& an entity :ithout ?uridical per&onality, the ?udg(ent &hall &et out their individual or proper na(e&, if 1no:n. %his Sec. 7 $ule 27 refers to a case when the )udgment involves an entity which has not )uridical personality. Hou remember the rule that entities without )uridical personalities may be sued but when the answer is filed, the names of the persons ma3ing up that entity without )uridical personality must be stated. %his is now what is required when the )udgment is rendered with respect to group of people who will not have separate )uridical personality. So here, if G, H and T are sued as an entity but they do not have a separate )uridical personality, then the )udgment against them will set out the names of the parties ma3ing up this entity. So, if the entity is sued as G, H and T. 9ar3eting, the )udgment against G, H and T. 9ar3eting, the names of the individual persons who made that namely G, H and T will be set up in the answer. RENE NOTE%K Requisites o: A *ud03ent -. t should be in writing, personally and directly prepared by the )udge 1. 9ust state clearly and distinctly the facts and the law on which it is based 2. t should contain a dispositive part and it should be signed by the )udge and filed with the cler3 of court. Pro3ul0ation P %he process by which a decision is published, officially announced, made 3nown to public or delivered to the cler3 of court for filing, coupled with notice to the parties of their counsel. X # )udgment based on a compromise otherwise 3nown as 9udicial co1pro1ise has the force of law and is conclusive between parties. Aot appealable. X %he power to amend the )udgment is inherent to the court before )udgment becomes final and e+ecutory. &nce a )udgment has attained finality ,e+piration of the period to appeal., no further amendment or correction can be made by the court e+cept for clerical error or mista3es. X #ttac3 of )udgment may be direct or collateral Direct Attac. a. before finality -. motion for new trial or reconsideration

b.

1. appeal after finality -. relief from )udgment, $ule 2; 1. annulment of )udgment, $ule =:

Rule 64K New Trial or Re<onsideration %his presupposes that a )udgment has already been rendered either for the plaintiff against the defendant or for the defendant against the plaintiff. #ny of them can file a motion for reconsideration. Q. (ithin what period the motion for new trial or a motion for reconsideration may be filed' A. #t any time before the )udgment has become final. #fter the )udgment has become final, the remedy is no longer a motion for new trial, it may be another remedy already such as petition for relief under $ule 2; but certainly, not a motion for new trial. T;ere are only two 0rounds :or 3otion :or new trial: -. <raud, Accident, 0i&ta1e or ECcu&a+le negligence ,FAME., which resulted in the )udgment against the movant! 1. Ne:ly di&covered evidence /NDE.. Cvidence which the movant could not have presented during the trial and which if presented will probably alter the result of the cast. EIa31le: # vs. / %he )udgment was rendered against /. Q. (hat was the reason why a )udgment was rendered against /' A. /ecause of B#9C. So this B#9C resulted in a )udgment, which is pre)udicial to his interest. Ee now wants that this )udgment against him ,/. is set aside and that a new trial be held. /ecause after a )udgment, he discovered evidence which could either be testimonial or documentary and which evidence he could not have presented during the trial because even if he e+erted efforts to procure it, he could not procure it. %his evidence if presented will probably alter the result of the case. So there are the only two ,1. grounds. ProcedureV nowV Q. (hat are the requirements so that / must comply with' A. &f course, he must have to file a motion for reconsideration stating therein the ground,s.. Acco(panying the (otion (u&t +e hi& affidavit of (erit* Q. &n what facts may this affidavit of merit may be filed' A. Let us say, with respect to the ground, for instance, the ground is B#9C, then, the affidavit of merit consists of facts constituting all the fame. f the ground is newly discovered evidence, the motion must be accompanied by the statement of the person with whose testimony the newly discovered evidence is based. Let"s say, the newly discovered evidence is the document or a copy of the document must be attached to it. All the ground& for the (otion for ne: trial (u&t +e alleged in the (otion. (hy' #ny ground already available at the time the motion is filed but not alleged therein is deemed waived. Q. (hat now will happen with this motion filed by /' A. %his is a litigated motion and therefore should be set for hearing strictly in accordance with $ule -;. ,(ith respect to the affidavit of merit, in case it is the defendant who filed a motion for new trial, he should accompany his motion with a statement of a fact constituting his defense. f it is the plaintiff for instance, who filed, the affidavit of merit shall state the fact constituting his cause of action.. So, the motion now is set for hearing in accordance with $ule -8. So, the court will resolve the motion whether to grant it or to deny it. %he motion may if it was established that there were B#9C that resulted in the rendition of )udgment against / in this e+ample, then the motion will be granted. f the basis is newly discovered evidence and the court finds that the newly discovered evidence, then the court will grant, otherwise the court will deny. Q. (hat is the effect of the grant of the motion for new trial' A. %he )udgment already rendered is set aside, as if no )udgment at all was rendered. n this e+ample, if the motion for new trial of / is granted, the )udgment already rendered against him is set aside.

Q. (hat now is the effect of the order granting the motion for new trial on the evidence already received' A. n this case, the evidence of the party consisted of the testimonies of G, H and T, and e+hibits #, / and C. Q. (hat now becomes the evidence' A. f the motion for new trial is based on B#9C, the rule says, Hthe evidence affected +y the <A0E :ill +e &et a&ide.J So if the evidence that is affected by this fraud is that coming from G, this will be set aside, only there, testimonies of H and T and e+hibits #, / and C will remain. So the court will conduct a trial. %he court may render another )udgment after conducting the new trial. n deciding this case now, Q. (hat evidence may the court ta3e into account' A. %he testimonies of H and T and e+hibits #, / and C. t will disregard the testimony of G. So, if another witness will testify and say C, then his testimony will also be ta3en into account. Q. Eow about these testimonies affected by /' A. f they are not affected by B#9C, they will be ta3en into account. f there was another witness who testified, it will be ta3en into account. So the court will render a )udgment based on these evidence remaining. %his is if the ground is B#9C. Aewly discovered evidence, that"s the basis, let"s say, the only evidence consisting of the so<called newly discovered evidence is e+hibit I J for instance and B testimony. Q. n deciding the case, what evidence should be ta3en into account' A. #ll the evidence previously presented by #, all the evidence previously presented by / including e+hibit I J and testimony of B. Aothing is discovered because they are not affected by these newly discovered evidence. So, in the e+ample the witness who already testified do not have to be recalled anymore. %heir testimonies will be considered. f there are additional witnesses, their testimonies will be considered. %his is how the motion for new trial is conducted. Q. Eow many motions for new trial may be filed' A. %he general rule is, a party can file only one motion for new trial. Q. s there an e+ception to this rule, meaning that more than one motion for new trial may be filed' A. Hes. (hen the ground of the second motion for new trial was a ground not e+isting at the time the first motion for new trial was filed. Bor instance, the motion for new trial is filed on the basis of B#9C. (hile this motion is pending, defendant< movant / found evidence, which qualifies as newly discovered evidence. Q. Can / now file another motion for new trial based now or newly discovered evidence' A. Hes, because at that time the first motion was filed, this second ground was not yet in e+istence. Q. s there such a thing as Hpartial ne: trialJ' A. Hes. # new trial does not have to cover the entire case. Supposing there are three ,2. issues in the case. Q. 9ay a new trial be held only with respect to one of the issues' A. Hes. So, the new trial will be limited to a trial of that only issue. %he )udgment on the second and third issues will no longer be disturbed. Q. f there are two or more parties in one separate case, may a partial motion for new trial be granted' A. Hes. Supposing the defendants / and C, the plaintiff being #. Q. 9ay a partial new trial be conducted only with respect to / and only with respect to C' A. Hes, because each of these defendants has his own right. So, a new trial is conducted with respect to / only, then the new trial will be limited between # and /. t will not include C.

f the new trial involves only C, then the case will only be between # and C. t will not include /. Q. (hat is the distinction between a motion for new trial and a motion for reconsideration' A. n a motion for new trial, the grounds are those we already specified. %he 0rounds :or a 3otion :or re<onsideration are different. %hey are: -. when the )udgment has awarded damages which are e+cessive! 1. when the )udgment is contrary to law! 2. when the )udgment is contrary to the evidence. With re&pect to the reception of evidence, in the case of a motion for reconsideration, there is no reception of evidence. n the case of a motion for trial, there is a reception of evidence. So these two differ. %hey, however, share a common point and that is, they can be filed only before the )udgment has become final. Q. (hy is it, in the case of a (otion for recon&ideration, there is no trial anymore, all that the court does is to set aside the )udgment and amend it' A. $emember the ground&: -. ECce&&ive Da(age P all that the court does is to review the evidence and find out whether the damages are e+cessive or not. 1. )udg(ent i& contrary to la: P all that the court does is to review the law on that matter. 2. )udg(ent i& contrary to the evidence P all that the court does is to review the evidence. %hat"s why there is no need of trial. RENE NOTE%K X Braud must be e+trinsic or collateral not intrinsic. X Borgotten evidence is not a ground for new trial. Requisites :or newly,dis<overed eviden<e a. must have been discovered after trial b. could not have been discovered and produced at the trial c. if presented would alter the result of the action &therwise, it is called forgotten evidence X # motion suspends or tolls the running of the reglamentary period for appeal e+cept when the same is pro<forma. PRO,FORMA MOT!ON , when it does not comply with $ule -8 and $ule 2:, e.g. it does not point out specifically the findings or conclusions of the )udgment as are contrary to law, ma3ing e+press reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions, ans is merely intended to delay the proceedings or if there is no affidavit of merit. Rule 6D K Relie: Fro3 *ud03ents# Orders# or Ot;er Pro<eedin0s 'etition for relief fro( ?udg(ent, this assumes that the )udgment has already become final. #nd the matter of fact that the )udgment or final order has already been entered. Hou 3now that once a )udgment has become final, li3e in this case VVVVV. Let"s say, you receive the )udgment in favor of #. Fec. -, -66;. Ee has until Fec. -7, -66; within which to do any of the following: -. 9otion for new trial! 1. 9otion for reconsideration. f he does not, one of these days until Fec. -7, -66;, as of Fec. -:, -66;, the court can no longer alter its )udgment. %he only thing that the court can do after a )udgment has become final is to e+ecute it under $ule 26.

&f course, there are certain things that a court may do with respect to a )udgment that has already become final, but not with respect to the merits thereof. Ao matter how the )udgment is erroneous. So the only thing that can be done after the )udgment has become final is to correct the clerical error or in a proper case, may clarify the )udgment. %hese are the only things it can do. So, we said, that beginning Fec. -:, -66;, in our e+ample, # can now e+ecute this )udgment. Let us say that the )udgment in favor of # declared # the owner of the land. &rdered / to vacate the lot. Commanded / to pay damages of P-9. %his is the )udgment. /eginning Fec. -:, -66;, # can now e+ecute this )udgment under $ule 26. Ao matter how erroneous this )udgment is, there is nothing that can be done but to e+ecute it. Eowever, under $ule 26, the law recogni*es the possibility that / may have lost the case by reason of matters not imputable to him. Bor instance, the )udgment was rendered against him by reason of B#9C. %hen the rule recogni*es this. %he inequity that may result to be, if this )udgment procured under that circumstances will be made. So under $ule 2;, the law gives / the opportunity to be relieved from his )udgment. %hat"s why $ule 2; spea3s of Petition for $elief. So, under $ule 2;, if / files the petition, he will as3 that he will be relieved from this )udgment. %hat means to say that he as3ed that this )udgment be set aside. %his is the concept of Petition for $elief of ?udgment %here is another matter covered by a petition for review and this is a situation where a loosing party was prevented from ta3ing an appeal therefrom. n our e+ample, the )udgment was rendered against /. #fter trial, there was no B#9C which gave rise to the )udgment. / lost. Aevertheless, he is entitled to appeal, for e+ample, he has until Fec. -7, -66; within which to file his notice of appeal. /ut he was prevented from filing the appeal by reason of B#9C. So there are two t;in0s t;at <an /e t;e su/=e<t o: 1etition :or relie:. -. # )udgment rendered by reason of B#9C or a proceeding attended by B#9C! or 1. # deprivation of a party of the right to appeal by reason of B#9C. Q. n what court should a petition for relief be filed' Let"s assume that this case between # and / was filed in the $%C /ranch - of 9anila with Civil CaseY12=8. Q. n what court and in what case should / file his petition for review. A. Ee should file his petition for relief in the $%C of 9anila /ranch - and in the same case ,Civil Case Y12=8.. t shows that a petition for relief is a continuation in effect of the case wherein the )udgment was rendered. So if the case was filed in the 9%C, then this petition for relief must be filed in the 9%C in the same case. %here is an amendment of the old $ule 2; in the present $ule 2;. Under the old rule, a )udgment rendered by an inferior court ,9%C for instance. and which a party thereto desires to file a petition for relief, the petition for relief must be filed with $%C. So, in our e+ample for instance, in -668, a case was filed against / in the 9%C, Civil CaseY12=8, / now wants to file a petition for relief from the )udgment rendered. Q. (here will he file the case' A. Bile it in the $%C. So the case will be now / vs. #. Thi& i& not &o no:Z %he court which rendered the )udgment is the court before the petition for relief should be filed.

Period within which a petition of relief must be filed wit;in 7B days from the time the petitioner learned of the )udgment of the proceedings and in no event /eyond siI F78 3ont;s :ro3 entry o: =ud03ent. Q. s this period e+tendible' A. Ao, it is not eCtendi+le. So, if you file a petition on the 7-st day following your 3nowledge of the )udgment, that petition is already filed out of time. Q. (hy cannot the period be e+tended' A. /ecause $ule 2; is an act of grace on the part of the state in favor of a party. Consequently, the party who desires to avail of this benefit should do so sub)ect to the conditions thereof. /ut there can be case where this period may be e+tended. n one case, the defendant after engaging a lawyer never heard anymore from the lawyer. So, he did not 3now the status of the case. %he only time he had learned of the status of the case was when he received a writ of e+ecution against him. Q. So, what did he do' A. Ee tried to investigate. Q. (hat did he find' A. %he fact that his own lawyer connived with the plaintiffs for his defeat. # vs /, engaged #tty. C. #tty. C connived with #. /ased on these facts, / now filed a petition for relief long after the )udgment against him has become final. %he court allowed the petition for relief to be given course. Ee was a victim of a fraud committed by his very own counsel. Q. s the court truly bound to give due course to a petition for relief' A. Ao. Let us see whyVV #fter / for instance has filed his petition for relief, the court will first e+amine the petition to determine whether it is sufficient in form and substance. f it is not, then the court will dismiss it. f the court finds that the petition was sufficient in form and in substance, it will give it due course, meaning, it agrees to hear it. /ut if he denies due course, it does not want to hear the petition. Let us assume in this e+ample that the court gave due course to the petition of /. Q. (hat would the court do in this case' A. t will now issue an order directing # to file a comment on the petition. Q. Eow would # 3now that a petition was filed against him by /' A. ,Fid you notice in our discussion whether / furnish # a copy of his petition. Ee did not serve the petition to #.. . the court after giving due course to the petition of /, issued an order commanding # to file his comment. #ccompanied in this order is a copy of the petition of /. n other words, it is not /, it is the court that serves on # a copy of the petition. &f course the court will grant # a period of time within which to file his comment. n the absence of any period, the period shall not be less than -8 days from service of the order. Q. s it mandatory for # to file a comment or opposition on the petition' A. Ao. (hy' f # files a comment or opposition as if he does not file the comment or opposition, but after the period of filing thereof has e+pired, the court will now set the date for the hearing of the petition. Q. (hat do you notice here' A. (hether or not there is a comment or opposition, the court will set the petition for hearing to determine whether said petition is meritorious or is not meritorious.

So, in our e+ample, / must present evidence in support of his petition. #, if he so desire, may present evidence in opposition, thereafter the court will resolve the petition. Q. (hat are the possibilities' A. -. %he court may deny the petition. So it says Ithere is no B#9C that resulted into a )udgment against /.J 1. %he court found that there is B#9C which resulted in the )udgment and in the case, the court will grant the petition. Q. (hat now is the effect of the grant of the petition on the )udgment already rendered' A. %he )udgment previously rendered is set aside. So, there"s no longer any )udgment to spea3 of. Q. (hat follows after that' A. %he rule says, Ithereafter, the court shall hear the case as if a timely motion for new trial are granted.J %he court will now hear the case anew as if a motion for new trial was granted. So, the court will receive evidence addressed during the hearing so that it may be considered thereafter the court will render a )udgment. %his case will be the second )udgment. ?udgment now will be whatever )udgment. t may happen that under the second )udgment may be in favor of / now or may still be in favor of #. %here is such a thing as an in)unction that the court may issue while the petition for relief is pending. n our e+ample, the )udgment has already become final. # already filed a motion for e+ecution. n the meantime / filed a petition for relief. Q. (hat is the available remedy to / so that pending the termination of this hearing of the petition for relief, # will not succeed in having that )udgment he e+ecuted' A. / may file a motion for issuance of an in)unction to restrain the e+ecution of the )udgment. Bor the purpose however of protesting also the right of #, / is required to post an in)unction bond. So, before the court restrains the sheriff from enforcing his )udgment, the court may require / to post a bond in favor of #. Q. Bor what is this bond responsible' A. n case damages where suffered by # as a result of the issuance of the in)unction and after hearing the petition, the petition was denied or after hearing the case, the motion for new trial having been granted, the )udgment is nevertheless in favor of #, then whatever damages # may have suffered by reason of the issuance of the writ of in)unction, may now be answered by the bond / posted. So that if / does not pay him damages awarded to #, then # can go after the bond. Petition :or Relie: t is available only when the other remedies against a )udgment are no longer available. So, if the motion for reconsideration is still available, or if a motion for new trial is still available: Q. Can you avail a petition for relief' A. Ao, (hy' /ecause you can still avail of this other remedies. So, this is the last resort that a loosing party can avail of to set aside an unfavorable )udgment. Let"s see the other aspect of a petition for relief. t is said, it involves also the failure of a party to appeal because he was so prevented by B#9C. So, in our e+ample, / files a petition to be relieve from the fact that he was not able to file the appeal. n our e+ample, / failed to file the appeal. %he )udgment has become final. Ee wants now that he be allowed to appeal. Q. (hat is the remedy' A. Bile a petition for relief. Q. (hat is the prayer for that petition for relief' A. %hat he be allowed to appeal. Q. (hat could be the reason that would )ustify the grant of his petition' A. %he )ustification was, he was prevented from appealing because of the B#9C. So the procedure to be followed by / would be the same as he would have followed if the petition was to set aside the )udgment by reason of B#9C. So, the petition to be relieved from failure to appeal is granted.

Q. %hen what is the relief that the court would grant' A. %hen the court will order the appeal to be given due course and that therefore, the court where the petition was filed and which rendered the )udgment appealed from will elevate the records tot the appellate court. So in our e+ample, the )udgment was rendered by the $%C /r. - 9anila and petition for relief prayed that the appeal of / from the )udgment be allowed. %hen when the petition is granted, the $%C of 9anila /r. - will give due course to the appeal of /. So, the court will now elevate to the appellate court the entire records. RENE NOTE%K NE) TR!A MRECON%!DERAT!ON X must be filed within the appeal period. ?udgment not yet final. X # legal right. X B#9C X ?udgment on final order N Two 'earin0s ,a. hearing to determine the )udgment be set aside ,b. if yes, a hearing on the merits of the case Rule 6@K EIe<ution# %atis:a<tion and E::e<t o: *ud03ents Q. (hat is the concept of $ule 26' A. EIa31le: %he )udgment commanded / to do these things: -. vacate the land!and 1. pay # P-9. %his )udgment became final on Fec. -, -66;. Q. Can this )udgment now be altered on Fec. 1, -66;' A. Ao more, that cannot be altered anymore. &f course this is sub)ect to $ule 2;. Ao matter how erroneous this )udgment is, it can no longer be set aside. #ll that is to be done now is to e+ecute it. 9eaning to implement it. (hen we say, Iall that is to be done is to implement that )udgment, to e+ecute it.J (e mean to say that / should now be required to vacate the land and pay P-9 to #. Q. Eow will this command of the court be carried out' A. %hat is carried out in accordance with $ule 26. Cvery step that finally leads to the accomplishment or the e+ecution of its )udgment is provided for in $ule 26. %he sheriff is the officer entrusted by the rules to e+ecute this. n carrying out the )udgment, the sheriff must follow strictly $ule 26. %his is the concept of $ule 26 ,C+ecution.. %he sheriff cannot e+ecute this e+cept in the manner $ule 26 provides. Q. (hat are the matters to be ta3en up under $ule 26' Q. (hat 3inds of )udgment or order can be e+ecuted' A. %he rule said, Ionly a final )udgment or order can be the sub)ect of e+ecution.J %his means to say that, Iin a )udgment, if an order has not yet become final, it cannot be e+ecuted.J Q. (hat is meant by final )udgment' /y final order' A. ?ustice $egalado points out in his boo3 the concepts in which a final order or )udgment is considered final, considered in the sense with respect to the appealability of the )udgment or order. Binal with respect to the appealability of the )udgment or order. RE !EF FROM *&D"MENT X ?udgment is final within 7> days after petitioner learns of the )udgment to be set aside and within 7 months after such )udgment is entered. X 9ore on equity ,Fiscretionary. X B#9C only X $elief from )udgmentOorder on other proceeding.

%his is how it is distinguishedV Q. Brom the point of view of appealability and from the point of view of enforceabilityVV what is a final order' A* Aro1 t-e point of vie6 of enforcea"ilit%, a final order or a final )udgment is one which can already be enforced because the period for an appeal therefrom is already without an appeal having been ta3en. So in our e+ample therefore, if a )udgment was received by # on Fec. -, -66; and by / by Fec. 1, -66;, # has only until Fec. -7, -66; and / has only until Fec. -:, -66; within which to file a notice of appeal, a motion for reconsideration or a motion for new trial. /ut they have not done this up to this day. %hen we say that this )udgment is final from the point of view of enforceability. (hy' /ecause effective Fec. -;, -66;, the prevailing party, # in our e+ample, can already enforce this. %his is the meaning of a final order or )udgment from the point of view of enforceability. Aro1 t-e point of vie6 of appeala"ilit%O. Let us say, # vs. /. / filed a motion to dismiss. %he motion to dismiss was denied. Q. s this order of denial a final order from the point of view of appealability A. Ao. %his is not a final order from the point of view of appealability. (hy' #n interlocutory order is not appealable. %his is the general rule. Hou cannot appeal from an interlocutory order because by its very nature, it can be set aside at any time. t is always within the control of the court as oppose to a final order. Let us seeV. Suppose the motion to dismiss was granted and therefore the complaint is dismissed. Borm the point of view of appealability Q. s this order granting the petition appealable' A. Hes, (hy' /ec. the order finally disposes the matters involved in the case. Q. (hat ma3es an order interlocutory. (hat ma3es an order final from the point of view of appeallability' A. !n the ca&e of interlocutory order, after its )udgment, there is still something to be done with respect to the merits of the case. So, the order does not put an end to a case. n our e+ample, the order denying the motion to dismiss is an interlocutory order. (hy' /ecause after the order has been issued, there is still something to be done with respect to the merits of the case. Bor instance, / will file the answer. %hereafter, pre<trial and then )udgment. %his is the essence of an interlocutory order. t does not put an end to a case. %here is something else to be done after its issuance. Let us ta3e the case of order of dismissal granting the motion to dismiss. Q. (hat is the effect' A. (e said that the complaint is dismissed. Q. s there anything else to be done in the case after the complaint is already dismissed' A. Ao more. %here is nothing else to be done on the merits of the case. %hat is why it can now be a sub)ect of the appeal. So, this is the difference between a final order from the point of view of appeallability and from the point of view of enforceability. What :e are tal1ing a+out in Rule 9$ i& a final order fro( the point of vie: of enforcea+ility . EIa31leK # vs. /. %he )udgment has already become final in the $%C. %his )udgment because final on Fec. -, -66;. &ur assumption is, there was no appeal from this )udgment. So, it became final Fec. -, -66;. Q. # wants a writ of e+ecution to be issued. (ithin what period can # file a motion for the issuance of a writ of e+ecution' A. Ee has five FC8 years from finality of )udgment which is equivalent to entry of )udgment within which to do so. So, he ,#. has up to Fec. -, 1>>2 within which to e+ecute this )udgment by mere motion.

Let us suppose that Fec. -, 1>>2 is the last day of the filing period. %his )udgment was not e+ecuted by motion within his five ,8. years. Q. Fec. 1, 1>>2, can this )udgment now against / be enforced by motion' A. Ao more. Q. s there a remedy by which # can still enforce this )udgment after Fec. -, 1>>2' A. Hes, by action. EIa31le: (ithin this five<year period from Fec. -, -66; to Fec. -, 1>>2, all that # does to secure this writ of e+ecution is to file a motion on the same case Civil Case Y12=8 $%C 9anila /r. -. So, # will file this motion for e+ecution in the same court. Fec. -, 1>>2, this )udgment can no longer be enforced by motion. t can now be enforced by action. Q. (hat does this mean' A. Let us assume that the land is located in Tambales. # is a resident Sulu. / is a resident of /atanes. Starting Fec. -, 1>>2, # can file this action. Q. (ithin what period can # file his action' A. Ee has a period ending five ,8. years from Fec. 1, 1>>2 or Fec. 1, 1>>2 within which to file the action. Q. (here will the action be filed' A. Sulu or /atanes. Q. (hy not Tambales' A* ,ecau&e an action to revive a ?udg(ent i& a per&onal action* !t i& not a real action* Thi& +eing a per&onal action, it :ill +e governed +y Rule =, the venue could +e the re&idence of the plaintiff or the re&idence of the defendant at the option of the plaintiff* # now file an action against / for revival of )udgment in the $%C of Sulu or /atanes at the option of #. Q. (hat do you notice' A. # separate action. So this )udgment rendered in Civil Case Y12=8 can no longer be enforced by mere motion. Hou can enforce it if you can procure a )udgment in this $%C of Sulu or /atanes. Q. f you were # here, what would you allege in your complaint' A. Hour allegation would be thisV %hat you received a )udgment in your favor in Civil Case Y 12=8. %hat the )udgment was not e+ecuted by motion within five ,8. years from its finality of )udgment. Q. (hat is now your prayer' A. Hou now pray that the )udgment rendered in that case be revived. Q. (hat do you associate revival' Q. Fo you revive a dead man' A. Ao. Q. (hat do you do with it' A. Hou resurrect him if you can. Q. (ho then is revived' A. Ee who is unconscious. Q. (hy do we call this action to enforce the )udgment rendered in the civil case, an action to revive' A. /ecause after the 8<year period during which the )udgment was not enforced that )udgment in a sense fell into a coma. Q. (hat do you do'

A. $evive so it can be enforced. Q. (ithin what period should an action to revive be filed' A. %he rule says, Hit (u&t +e filed +efore the action i& +arred.J Q. (here do you find the rule to apply whether the action is barred or not' A. Civil code provisions state the periods during which actions may be filed. n certain actions, there are periods fi+ed. So, in our e+ample, the action to revive the )udgment should be filed within -> years from the day the )udgment in Civil Case Y12=8 has become final or when it was entered. &ur assumption here is, the )udgment became final Fec. -, -66;. Bor the purpose of filing the action for revival, you have -> years from Fec. -, -66;. n effect therefore, # has a period of five years from the e+piration of the original 8 years within which to file the action for revival. n this e+ample, the five year period ended Fec. -, 1>>2. Hou now can file the action within five years again, Fec -, 1>>2. Let us assume that the )udgment for revival is granted. Q. Can you now e+ecute the )udgment of revival' A. Hes. Q. (ithin what period' A. /y motion also within 8 years from entry of )udgment in the revival action. Q. Hou did not e+ecute the )udgment in that revived action within the 8<year period from its entry. Can you now e+ecute it' A. Hes. Q. Eow' A. /y motion again. So you can revive the revived )udgment if it was not e+ecuted within the 8<year period. (e are tal3ing of a )udgment, which can be enforced or e+ecuted only after it has become final and that it can be e+ecuted in the court where the )udgment was rendered. Let"s ta3e the second possibilityVV # vs. / $%C of 9anila, Civil Case Y12=8. / appealed to C#. C# rendered a )udgment affirming the $%C )udgment of the C# became final Fec. -, -66;. Hou are # who would want the )udgment of C# be e+ecuted. Q. (here will you file the motion for e+ecution' A. Eere are the possibilitiesV.. %his case is still with the C# but the )udgment already became final Fec. -, -66;. /ut the records are still there. Hou now want that )udgment in C# affirming the )udgment of $%C e+ecuted. Q. f you were #, in what court may you now file the motion for e+ecution' A. Hou can file in the $%C. Q. /ut the records of the case are not yet in the $%C, in what case then will you now file the motion in the $%C' A. %he re(edyVV # will secure a certified copy of the C# )udgment, he will now get a copy of entry of )udgment duly certified by the C#. Q. (hat will # do with these two' A. Ee will now attach them to the motion for e+ecution. %his motion for e+ecution is now accompanied by these two certified copies so that although the records are still in the C#, the $%C can now act on the motion.

Q. Can the $%C now enforce this )udgment of C# although the records are still there' A. Hes. Bile in the $%C a motion for e+ecution. #ttached to that motion, certified copy of: -. C# )udgment! and 1. Cntry of )udgment &f course the (otion for eCecution filed in the RTC &hould +e heard in accordance :ith Rule #5. %hat means to say that / must be notified. (hy' /ecause this is a litigated motion. Q. 9ay not # file in the C# the motion for e+ecution while the records are still with the C#' A. Hes, # can file with the C# the motion for e+ecution. Q. (ill the C# issue the writ' A. Ao. Q. (hat will it ,C#. issue' A. t will merely issue an order directing the trial court, the $%C in our e+ample, to issue the writ of e+ecution. Aow, you distinguish between the order directing the issuance of a writ of e+ecution and the writ of e+ecution itself. n this e+ample, what is issued by the C# is the resolution directing the trial court to issue the writ. (hat $%C issues is the writ itself. Supposing these records are already turned over to the $%C and that"s already final. Q. 9ay # file still with the C# a motion for e+ecution' ,%he records are already in the $%C.. 9ay the C# nevertheless issue an order directing the $%C to issue the writ considering the records are already in the $%C, no longer with the C#' A. ?ustice $egalado, a recogni*ed writer in $emedial Law opines that the C# may still issue the order directing the $%C to issue the writ although the records are already with the $%C. XThi& i& not a decided ca&e* That i& only the vie: of 0r* Regalado* DonEt +e (i&led +y thi& co((ent on thi& a& you (ay find in hi& +oo1 you can opine other:i&e and +e &u&tained +y the SC* So far we have been tal3ing of e+ecution of )udgments. Q. 9ay a )udgment or order, which has not yet become final be the sub)ect of e+ecution' A. Hes, but then this is the e+ception. EIa31leK # vs. / , # receive the )udgment favorable to him on Fec. -, -66:! / received the )udgment on Aov. 1;, -66:. So # has until Fec. -7, -66:. / has Fec. -2, -66: within which to do any of the following: -. 9otion for reconsideration! 1. 9otion for new trial! or 2. Aotice of appeal. %his is what happensV &n Fec. --, -66:, / filed a notice of appeal. Q. (hat is the effect of this notice of appeal filed by / in so far as he is concerned' A. nsofar as / is concerned, the court can no longer touch the )udgment. t cannot modify anymore the )udgment insofar as / is concerned. Q. /ut can the court still modify this )udgment insofar as # is concerned after Fec. --' A. Hes, because # has until Fec. -7 within which to do any of the above<stated. n other words, the appeal here of / does not affect the rights of # up to Fec. -7. So, if # files a motion for reconsideration on this )udgment let"s say on Fec. -8 or four ,=. days after the appeal of / has been filed. Q. Can the court still reconsider this )udgment insofar as # is concerned' A. Hes, but it can no longer change the )udgment insofar as / is concerned. &n Fec. -8, -66:, # file a motion for e+ecution.

Q. Can # still file his motion for e+ecution considering that the )udgment is not yet final insofar as # is concerned because this will become final only as to him on Fec. -7' A. Hes, he can still file. Loo3V s this )udgment already final insofar as # is concerned' Aot yet. nsofar as / is concerned, this is an appeal to the )udgment, which is not yet final, also as to him. Q. Can this )udgment nevertheless be e+ecuted' A. Hes. 9eaningV. Can the court rule on this motion of # for e+ecution is filed, the court has not yet lost )urisdiction of the case insofar as # is concerned. Supposing the records however, were elevated to the C# on Fec. 1>, -66:. Q. Can the court now rule on this motion for e+ecution on Fec. 1-' A. Ao more. (hy' %he records are no longer with the court. Q. (hat would be the )ustification for the court to issue an e+ecution against / while the case is pending appeal' A. %he rule says simply that the court may issue e+ecution for a special reason to be stated in a special order. Q. Fo you find any enumeration in the rules particularly $ule 26 on what constitutes special reason which )ustifies the issuance of the writ of e+ecution pending appeal' A. Aone. %he court then will determine whether there is or there is no special reason for the issuance of a writ pending the appeal. , t is the court that determines on a case<to<case basis.. Aow if the court issues a writ of e+ecution pending appeal, the law requires that the order must state the special reason why the writ of e+ecution was issued. n the absence of the statement in the order of what constitutes a special reason, there will be a violation by the trial court of this $ule 26. Q. (hat is a special reason' A. %he rule does not say so. So this is a matter that is left to the discretion of the court to determine. # )udgment is rendered against the defendant / to pay a sum of money. / is already on the verge of ban3ruptcy. (hile the case was pending, the period for appeal has not yet e+pired, he started disposing his properties. Cvidently, to place them beyond the reach of the plaintiff # who obtained a )udgment in his favor. Q. Should # file a motion for e+ecution based on this ground' A. %he imminent ban3ruptcy of / and the fact that he was disposing his properties with evident intention of depriving # of the benefits of the )udgment may be considered a specified reason. (hy' /ecause if you wait until the )udgment become final, there will be nothing left already on the assets of / which can be levied upon to satisfy the )udgment. Q. (ill this be a good reason' A. t"s up to the court. f it thin3s that it is a good reason to e+ecute the )udgment is affirmed on appeal, and the )udgment become final, the plaintiff is already assured of payment. Q. Supposing the )udgment ordered the defendant to deliver # a quantity of perishable goods, let"s say meat for instance, what will happen to these perishable goods if you still wait until the )udgment become final to e+ecute it. A. /y that time, they may have already been spoiled. Q. So, may it now be a special reason that because of the nature of the goods, the e+ecution of a )udgment is proper to avoid these goods being lost' A. (hether the reason is good or not, special or otherwise, it is the court that determines. Q. s it only in the trial court that the motion for e+ecution pending appeal may be filed' A. Ao. (hen a case is pending in the appellate court, the prevailing party may also file therein a motion for e+ecution. So, in our e+ample, the case has been appealed by / to the C#. So the case is pending now in the C#. Q. Can # file in the C# a motion for e+ecution of the )udgment pending resolution of the case by C#' A. Hes, a motion can be filed by # in C#. Q. (hat is the lifetime of a writ of e+ecution'

A. 8 years Q. (hat is a writ' A. # writ is a command of the court addressed to a proper officer normally the sheriff commanding him to e+ecute the )udgment. EIa31leK &n motion of #, the court issued an order directing that a writ be issued for the e+ecution. Q. (ho carries this ,writ. into effect' A %he cler3 of court. Q. (hat will the cler3 of court do' A. %he cler3 of court will issue in the name of the court the so<called Iwrit of e+ecution.J So, the cler3 of court issues this writ. Q. %o whom is this writ directed' #. %o the sheriff. Q. (hat does this writ command the sheriff do' A. %he rule says, the writ must recite the dispositive portion of the decision and thereafter command the sheriff to implement it. n our e+ample, the )udgment ordered / to deliver the land to #. %o pay # so much moneyV Q. (hat will the writ say' A. I(hereas on ?an. 1, -66;, a )udgment was rendered by this court the dispositive portion which read, , the dispositive portion of the )udgment is quoted.. (hereas this )udgment has become final on this date ,put the date. hence the court in its order dated so directed that a writ be issued. (herefore, you are commanded to e+ecute the foregoing )udgment. ,%here is another directive thereV. of the properties of / you are commanded to ma3e up the sum of so much to pay the amount ad)udged in the decision.J Q. s it addressed to /' A. Ao. t is addressed to the court personnel. Q. (hat is a lifetime of a writ of e+ecution' A. Under the old Rule 9$, a writ has only a lifetime of 7> days counted from the day the sheriff received it. %his means to say that if the )udgment is not e+ecuted within that 7><day period, that writ can no longer be enforced after the 7> th day. Q. (hat then was the result under the old $ule 26' A. f the writ was not e+ecuted within the 7><day period, it automatically lost its force beginning the 7- st day. %herefore, any service of the writ after the 7>th day would be already be an invalid service. Consequently, the party who prevailed and who wants the )udgment e+ecuted must again file a motion for the issuance of another writ of e+ecution. So, under the old rule, there could be as many writs of e+ecution issued within the five<year period for as long as the writ was not implemented within the 7><day period, another writ can be issued such that by the end of the 8 th year, all the writs have not been implemented, there can be no more writ to be issued thereafter. (hy' /ecause you now have to file an action to revive the )udgment. Q. (hat is the modification now' A. Under the ne6 rule, we now have a longer lifetime of a writ of e+ecution. %he lifetime corresponds to the period within which a )udgment may be e+ecuted by mere motion. t means to say further that during this five<year period, no other writ of e+ecution is required to be issued. %he sheriff can enforce that within this five<year period for as long as the )udgment is not satisfied within the 8<year period. %here are several 3inds of )udgments that may be the sub)ect of e+ecution. (e have a )udgment for instance which calls for a )udgment involving special one. Q. (here lies the difference'

A. # )udgment commanding specific acts to be done may involve any of the following: -. payment of money 1. delivery of property 2. e+ecution of deed conveyance %hese are among the )udgments calling for specific acts. %hese are not the only acts involve in a )udgment. ,Let us )ust ta3e them for illustrative purposes.. #nd we could have a )udgment called special )udgment secured by # against / provided that / should tear down a concrete fence with / erected on a lot belonging to #. So, this 3ind of )udgment is not any of this )udgment for specific acts. So, there may be a )udgment commanding the loosing party to turn over the prevailing party the piece of land! there may be a )udgment commanding a party to e+ecute a deed of conveyance. %his is the final )udgment that ?udge Laggui would li3e to discuss to usV EIa31leK Supposing in this e+ample, # vs. /, the court rendered )udgment the dispositive portion of which commanded the following: -. # is the declared owner of the lot in question covered by %C% Ao. 12=8 $egistry of Feeds Province of $i*al. 1. / is ordered to e+ecute a deed of transfer of this lot in favor of #. 2. %he $egistry of Feeds, Province of $i*al is so ordered to cancel the title and issue another in the name of #. Q. Eow will this )udgment be carried out' Let us suppose in our e+ample, / refused to comply with this order, commanding him to e+ecute a deed of transfer in favor of #. Q. (hat is the remedy under this rule' A. %he remedy is thisV %he court will commission a third person to e+ecute the deed in favor of #. Q. (hat is the effect of this deed e+ecuted not by / but by C' A. %he rule says, the deed e+ecuted by this third person C is )ust as good as if it were /. So that when #, the prevailing party, presents to the $egistrar of Feeds, Province of $i*al, this deed signed by C ,not by /., the $egistrar of Feeds will register that and cancel the title of /. %here"s another remedy, if / does not e+ecute the deed. Q. (hat can the court do' A. %he court will simply say, Ithe $egistrar of Feeds, Province of $i*al is ordered to cancel the title Ao. 12=8 in the name of / and issue another in the name of #. !n the ca&e of a &pecial ?udg(entV Q. Eow does this differ from a )udgment involving specific acts. A. %he difference lies in this fact. %hat in the case of ?udg(ent involving &pecific act&, the writ of e+ecution issued to the sheriff is not accompanied by a copy of )udgment. /ut in the case of a &pecial ?udg(ent, the writ of e+ecution addressed to the sheriff is accompanied with a certified copy of the )udgment. n the enforcement of this writ of e+ecution, involving special )udgment, Q. (ho will e+ecute the )udgment' s it the sheriff' A. Ao. t is the party. n our e+ample, defendant here. (hy' /ecause he must obey the )udgment. 9eaniing since he was commanded to tear down that concrete fence, / must do it himself. Q. Can he ,/. order the sheriff to do it' A. Ao. Ee himself must do it. /ut he might say, I cannot do it.J /ahala 3a sa sarili moZ %ear it down. / says, I will not.J Q. (hat is the remedy' A Feclare him in contempt of court. So he does not want to tear it down, arrest himZ Send him to )ail. Q. (ill you release him'

A. Ao. Q. (hen will you release him' A. (hen he has obeyed tearing down. f he does not tear it down, he will rot in )ail. RENE NOTE%: X# (rit of C+ecution to be valid, must conform strictly to the decision or )udgment which gives it life. t cannot vary the terms of the )udgment it see3s to enforce. "eneral Rule: Court cannot refuse e+ecution &N E%%K F&CN!D8 -. C+ecution is UA?US% or 9P&SS /LC 1. Cquitable grounds li3e a CE#A@C A S %U#% &A 2. ?udgment A&D#%CF by parties =. C+ecution is en)oined 8. ?udgment has become F&$9#A% XQuas;al o: writ 1ro1er w;enK -. mprovidently issued 1. Fefective in substance 2. ssued against the wrong party =. ?udgment already satisfied 8. issued without authority NRe3edies o: t;e osin0 Party -.Petition for relief ,$ule 2;. or 1. Firect or Collateral #ttac3 against )udgment %&PER%EDEA% BOND , one filed by a petitioner and approved by the court before the )udgment becomes final and e+ecutory and conditioned upon the performance of the )udgment appealed from in case it be affirmed wholly or in part. X Supersedeas bond guarantees satisfaction of the )udgment in case of affirmance on appeal, not other things li3e damage to property pending the appeal. X %he court may, in its discretion, order an e+ecution before the e+piration of the time within which to appeal provided. -. %here is a motion for e+ecution filed by the winning party 1. %here is a notice of said motion to the adverse party! and 2. %here are good reasons stated in a special order after due hearing. "ENERA R& EK an order of e+ecution is not appealable otherwise there would be no end to the litigation between the parties. E+CEPT!ON%K -. (hen the terms of the )udgment are not very clear! 1. (hen the order of e+ecution varies with the tenor of the )udgment X # revived )udgment is a new )udgment thus another 8O-><year period to e+ecute and revive is given the party. Rule 6@ %e<. ?4K E::e<ts o: *ud03ent rendered /y a P;ili11ine Court The effect of a ?udg(ent or final order rendered +y a court of the 'hilippine&, having ?uri&diction to pronounce the ?udg(ent or final order, (ay +e a& follo:&: a. !n ca&e of a ?udg(ent or final order again&t a &pecified thing, or in re&pect to the pro+ate of a :ill, or again&t the ad(ini&tration of the e&tate of a decea&ed per&on, or &tatu& of a particular per&on or hi& relation&hip to another, the ?udg(ent or final order i& conclu&ive upon the title to the thing, the :ill of the ad(ini&tration, or to the condition, &tatu& or relation&hip of the per&on, ho:ever, the pro+ate of a :ill granting a letter of ad(ini&tration &hall only +e pri(a facie evidence of the death of the te&tator or inte&tate* +. !n other ca&e&, the ?udg(ent or final order i&, :ith re&pect to the (atter directly ad?udged or a& to any other (atter that could have +een rai&ed in relation thereto, conclu&ive +et:een the partie& and their &ucce&&or& in

intere&t of title &u+&eAuent to the co((ence(ent of the action or &pecial proceeding, litigating for the &a(e thing and under the &a(e title and in the &a(e capacity* c. !n any other litigation +et:een the &a(e partie& or their &ucce&&or& in intere&t, that only i& dee(ed to have +een ad?udged in a for(er ?udg(ent or final order :hich appear& upon it& face to have +een &o ad?udged, or :hich :a& actually and nece&&arily included therein or nece&&ary thereto. Hou will note that Sec. =: of $ule 26 groups into three ,2. the actions covered by the section. %he first section covers: cases involving title to specific property! cases involving probate of a will! cases involving the administration of the estate of the decedent! cases involving the political, legal and personal condition or status of a person! and cases involving the relation of a person to another.

-. 1. 2. =. 8.

Q. (hat does the rule say with respect to the )udgment that may be rendered in these cases' A. %he rule says ,-. the )udgment is with respect to the specific property, conclusive on the title to the property! ,1. the )udgment is conclusive on the probate of the will! ,2. the )udgment is conclusive to the administration of the estate! ,=. the )udgment is conclusive on the personal, political or legal condition of a person! and ,8. the )udgment is conclusive on the relation of a person to another. %here is only one e+ception to this rule that )udgment is not conclusive, and that is when it comes to the probate of a will or the administration of the estate. %he )udgment here is merely prima facie evidence that the testator or the person whose estate is under administration, is dead. t can be proven that he is alive. EIa31leK # filed an application for registration of title to a lot. &nly / opposed. #fter the trial, )udgment was rendered confirming the title of #. %he )udgment became final. %he L$# issued the decree of registration pursuant thereto, a corresponding certificate of title &C% Y-12=. %his title now is in the name of #. Let us assume that this )udgment became final on -6:;. n -66;, C now files a case against # for recovery of this lot. C said, I am the ownerJ. # said, IAo, am the owner.J Q. (hat is the issue' A. I(ho is the owner'J Furing the trial, # now the defendant, presented in evidence the )udgment of the court in that $egistration case, the certificate of title issued in that case, and the decision, C+hibits I#J, I/J and ICJ respectively. # says, I offer your honor C+hibits I#J, I/J and ICJ to prove that am the registered owner.J Court: I(hat does / says'J C: I ob)ect on the ground that was not a party to the case. %he parties thereto being only # and /. %herefore, am not bound by the )udgment.J Court: I&b)ection overruled.J C+hibits I#J, I/J and ICJ are admitted. Q. s the ruling of the court correct' A. Hes. (hy' /ecause under Sec. =: ,a. $ule 26, Ithe ?udg(ent in that regi&tration ca&e i& pertaining to a& it doe& to a &pecific property i& conclu&ive on the title*D So, this being a proceeding in res, the )udgment binds not only # and / but the whole world including C who was not a party. %hat means to say that C cannot be declared the owner of that land. (hy' /ecause the ownership was already decided with finality in that case. f C has any claim over this lot, he should have filed his claim during the registration proceeding. Ee should have intervened. Ee did not. %hen all claims over this land that were not presented were deemed e+tinguished when the )udgment was rendered. %his what is meant by conclusiveness of title. &f course, this does not mean to say that C may not be able to recover this lot. AoZ Ee may recover, but in another cause of action. Supposing that he can show that the ownership of the land later on pass from # to him, then he can recover. /ut if he simply says, I am the owner.J &n his own right deriving his title from #, that title of # cannot be challenge anymore in any proceeding. %his is what is meant by conclusiveness of the )udgment in a case involving title to specific property. Pro/ate o: )ill %he rule says, a ?udg(ent in a pro+ate ca&e i& conclu&ive a& to the pro+ate. Q (hat is meant by this' A. EIa31le:

Eere is the will of ?. Eere now is # who filed a petition for the probate of the will. %he court admitted the will in probate. %he )udgment becomes final on Fec. -, -666. ,Fon"t forget that what is decided in a probate case is not the merits or validity of the dispositions in the will.. (hat is decided in the probate of the will is merely the question of whether or not the will was e+ecuted in accordance with the formalities required by law. Hou 3now that under the Aew Civil Code, there are certain formalities that must be followed by the testator so that the will will not be valid. So for instance, the law says, Ithe will must be signed by the testator at the end thereof and on every page on the left side! each page if the will consists of more than one page be numbered and that the will must be attested by three attesting witnesses! they must be ac3nowledged by the testator and the attesting witnesses before a notary public.J %hese are among the many formalities that the testator must have to follow, so that the will he e+ecutes shall be valid. Eere, the will was admitted for probate. %his means to say that the will was validly e+ecuted as to the form. %his means to say therefore that his will was signed by the testator. %his is the meaning. /ut, as to whether the dispositions in the will are valid or not, that is not decided. So, in the will, the testator said, I have all these properties described as follows to my Y1 for services renderedVJ Q. (ill the court decide that in the probate' A. Ao, because that was into the intrinsic validity. %his is not decided. #fter his will was admitted on probate, # now was sued involving this will now. / now says that this will was a forgery because the signature was affi+ed by G without the 3nowledge of %. Q. Can the question of forgery of this will be raised later on' A. Ao more. /ecause the )udgment in the probate proceeding is conclusive that this will was validly e+ecuted. %his means therefore that the testator signed the will. /ut supposingly, the truth is, as contended by /, that the will was signed by G' Aever mind. %he law says, Ithe will was signed by %.J ,even if it was actually signed by G. Aever mindZ. Under Sec. =: $ule 26, I signed itZZZJ (hether he did actually or not, no longer mattersZZZ %his is the meaning. Eowever, there is a qualification here, and i. C., the admission of the will in probate is merely prima facie evidence that % died. Q. So, can it later be proven that % is still alive' A. Hes. (hy' /ecause the presumption is that % is dead is rebutted by his appearance. A ?udg(ent involving the political, legal or per&onal condition of a per&on, or hi& relation to another i& conclu&ive a& to &uch per&onal condition, legal or political condition, &tatu& or relation* EIa31leK # sues / for compulsory recognition as a natural son of /. / denied the claim of # that he is his son. So the issue is: s # the son or not of /' #fter trial, the court said, IJ/ is the father of #.J Hears later, / died succeeded by his several children. Since / has an estate, # sued the heirs of /. # alleged that he is the natural son of /. /ut the heirs of / alleged that # is not a son of /. Q. Can the relationship of # as a natural son be litigated anew' A. Ao more. # is the son of /. %his question cannot be litigated again. %here is logic hereV Supposing the heirs of / if allowed to prove that # is not the son of /, they may now introduce evidence that # is the son of C and the court believes that C is the father of #. Q. Eow many fathers now does # have' A. %wo. %his is the evil sought to be avoided by this rule. Hou cannot place the status of a person in a state of uncertainty because if he ,#. is now the son of /, tomorrow he will be the son of C, now, where will this end' So there can be as many fathers as can be provenV %his is not allowed. %his is what is meant by the conclusiveness by the )udgment in a case involving the relation of a person. Q. (hat do we learn from this' A. %he )udgment in any of these cases mentioned, in Sec. =: ,a. $ule 26 is binding, conclusive and cannot be altered. %e<. ?4 F/8 Rule 6@

!n other ca&e&, that :hich ha& +een ad?udged in a ca&e or any (atter that could have +een rai&ed in relation to that (atter that ha& +een ad?udged i& conclu&ive +et:een or a(ong the partie& and their &ucce&&or& in intere&t +y title &u+&eAuent to the co((ence(ent of the action or proceeding litigating for the &a(e thing under the &a(e capacity under the &a(e title and in the &a(e capacity* Q. (hat is meant by this' A. t simply means that where an issue has already been decided in one case, that issue cannot be litigated again. (hy' /ecause that )udgment toward this issues which has been raised and decided is already conclusive and can never be changed anymore insofar as the same parties or their successors in interests are involved. %his is the so<called rule involvin0 res =udi<ata. %hat which have been decided in another case involving the same sub)ect matter, involving the same causes of action. EIa31leK f you 3ill a cow or a carabao and you want to eat the flesh, what do you do' Hou s3in the carabao or the cow. Can you s3in the same animal twice' Hou can s3in it only once. Hou can litigate an issue only once. Hou cannot litigate again for the same issue. #nd if a litigation is brought involving the same issue, the )udgment rendered in the first case may now be pleaded in the second case. Re& ?udicata i& a ground for (otion to di&(i&&*

EIa31leK # vs. / for reindivicacion. (hat is the issue' # says, I am the owner.J / says, I am the owner.J So, the issue is: I(ho is the owner'J %rialV # presents evidence to prove his ownership. / presents his evidence to prove his ownership. ?udgment: I# is the owner.J %he )udgment became final on Fec. ->, -66=. n -668, / now or if he ,/. is dead, the heirs of /, file a case against # or if # is not alive, #"s heirs. So, it"s either heirs of / against # or Eeirs of / against heirs of #. Q. (hat is the nature of the action' A. $eindivicacion P (hy' /"s heirs wants to recover. #"s heirs wants to recover. /"s heirs said I(e are the owners.J #"s heirs said, I(e are the owners.J ssue: (ho are the owners' Q. (hat did you notice here' A. n both cases, the parties are the same. # vs. / or heirs of / vs. heirs of #. Q. (hy are the parties the same when # and / are dead and the parties litigating are )ust their respective heirs' A. /ecause their heirs merely stepped into the shoes of # or / respectively. %he sub)ect matter is the same P the land. %he cause of action is the same. ssue: same P ownership. Q. Can this be decided in this case' A. Ao more. %he )udgment rendered in the first case on the issue of ownership is binding on all the parties in the second case. Q. f these were the situation, what is the remedy available to # or the heirs of #, in order that this second case will not be tried anymore on the merits' A. (hat the defendant # or heirs of # can do is to file a motion to dismiss under $ule -7 on the ground or res )udicata. %his is a very simple form of res )udicata. Q. (hat are the other rules with respect to res )udicata' A. Eere are the rulesV The effect& of re& ?udicata cannot +e avoided or evaded &i(ply +y changing the nature of the &u+&eAuent cau&e of action* EIa31leK Hou will note that this case between # and /, the issue is: (ho is the owner of the land' %hat )udgment was rendered in favor of #. So, he was declared the owner. %he )udgment became final. / now sued # for recovery of damages representing the value of this lot, let"s say P-9.

Can this suit for recovery of damages be maintained by /' Loo3V Q. (hat is the sub)ect matter of the first case' A. # lot. Q. (hat is the sub)ect matter of the second case' A. 9oney. ,So, they are not the sameZ. Q. Lot and moneyV is that so' A. Ao. (hy' /ecause the money represents the value of the lot. Q. (hat is the basis now of the claim of / or the heirs of / in recovery of P-9' A. %heir ownership of the land, because if they were not the owner, heOthey would not recover. Q. /ut was not this question of ownership already decided' A. Hes. t was decided. Q. (hat is the cause of action in the first' A. &wnership. # says, I am the owner.J / says, I am the owner.J Q. (hat is the cause of action in the second case' A. %heir claim of ownership. So, you have here, identity of parties, identity of causes of action, identity of sub)ect matter, then you have here res )udicata. Q. (hat does this e+ample illustrate' A. %hat the effects of res )udicata cannot be avoided by simply changing the nature of the action. Q. (hat is the nature of the action in the first case' A. $eivindicacion. Q. (hat is the nature now of the second action' A. $ecovery of money. %here was a mere change in the nature of action, but both actions are founded in the same facts. #nother ruleR The fact that the partie& in the &u+&eAuent ca&e (ay not +e eCactly +e the &a(e a& the partie& in the prior ca&e doe& not affect the application of the rule of re& ?udicata* So long a& the partie& in the &u+&eAuent ca&e repre&ent& &u+&tantially the &a(e intere&t a& repre&ented in the prior ca&e. EIa31le: n the first case the defendant was only /. n the second case, / and S are now the main plaintiffs. (hy S' /ecause S is the wife of /. / and S now filed an action to recover the value of the land. Aaturally # filed a motion to dismiss on the ground of res )udicata. /ut / and S argued that the rule on res )udicata does not apply. (hy' /ecause the parties in the first case and the parties in the second case are not the same. So, they argued that in the first case, the parties thereof are #, as plaintiff and /, as defendant. n the second case, the parties are / and S as plaintiffs and # as defendant. S was never a party. So there is no identity. Q. s the contention of the plaintiffs / and S, correct' A. Ao. (hy' /ecause S being merely a spouse was not an indispensable or even a necessary party in the first case. f she were sued then, she could have been sued merely as a nominal party. (ith her addition as a plaintiff in the subsequent case, that will not strengthen the case of the husband because with or without the wife impleaded in the first case, the )udgment will have been applied equally to S. Eere is an illustration of what we said earlier that in the subsequent case, there is or there are parties who were not parties in the prior case, will not affect the application of the rule on res )udicata, the additional parties, in our e+ample, were not indispensable parties in the prior case. The third part of Sec* =% /c. Rule 9$ pre&uppo&e& that there :a& a prior ca&e +et:een partie& and that ?udg(ent in the prior ca&e i& invo1ed in a &u+&eAuent ca&e +et:een the &a(e partie&. EIa31leK

# vs. / in Civil Case Y -12=. # )udgment was rendered in that case. Subsequent to that, there is another case between # and / or between / and #. Under this set of cases, that )udgment rendered in the first case is introduced as evidence in the second case. /ut with the introduction in evidence of the )udgment in the first case, will not be a res )udicata in the second case. (hy' /ecause under this rule ,Sec. =: ,c. $ule 26., only tho&e (atter& that have +een decided in that prior ca&e i& dee(ed re& ?udicata in the &econd ca&e. %herefore, there is still a part of the case in the second case, which can now be decided. Can no longer be decided in the second case. %hat is why, the rule says, Ithe other cases involving the same parties,J that has been ad)udged in a prior case which appear on its face to have been directly ad)udged or this could have been necessarily included therein. EIa31le: # vs. / for forcible entry. %he issue is, I(ho has the right of possession of the land'J Let us say that the )udgment was in favor of #. So, # was declared the lawful possessor. %he court having found that # had been in possession of the land for 1> years continuously until / e)ected him therefrom. Q. (hat do you recall about forcible entry' A. %he only issue in forcible entry in , involving possession. So, what is settled in the forcible entry case is the question of possession. %he question of ownership is not decided in forcible entry. #lthough you will recall that in /P -16 as now included in $ule :> that, in a forcible entry case, the question of ownership may be decided. /ut the decision is only for the purpose of determining who is the lawful possessor. So, the law says, I(hen the question of ownership is raised and the question of possession cannot be decided without deciding the question of ownership, then the question of ownership may be decided. /ut only for this purpose. %o allow the 9unicipal %rial Court to determine who is the lawful possessor. /ut then the findings of the 9%C as to who is the owner is not final. t is only good in that case. %he question of ownership can again be litigated. #fter the )udgment in favor of # has become final, / sued #, this time for reivindicacion. So / says, I am the owner.J Q. So, what is the issue here' A. &wnership. %his is what # did. Ee filed a motion to dismiss this second case. (hat is his basis' Ee now argued that the )udgment in the forcible entry case is already res )udicata. Since the question of possession has already been decided in that forcible entry case, this action for reindivicacion can no longer be litigated. %his is his ,#. contention. Q. s the contention of # correct' A. Ao. Under the par. C of Sec. =: $ule 26, the rule says, I n other cases involving the same parties that is deemed decided in the prior case which appears on its face to have been directly ad)udged. Q. (hat was ad)udged in a forcible entry' A. &nly the question of possession the question of ownership here can still be decided. Q. /ut can there be now a dispute as to the question of possession, so that if the question of possession can still be disputed, / can prove that # was not in possession of the lot' A. Ao more. (hy' /ecause the question of possession was already settled in the forcible entry case. So in the reindivicacion, the question of possession is res )udicata. %hat cannot be litigated anymore. t is already res )udicata. Q. So, what do you notice here' A. Par ,c. of Sec. =: of $ule 26 involves partial res )udicata. %hat is what is meant by par ,c. of Sec. =: $ule 26. %e<. ?D Rule 6@K E::e<t o: *ud03ent rendered /y a Forei0n Court The effect of a ?udg(ent or final order of a tri+unal of a foreign country, having ?uri&diction to render the ?udg(ent or final order i& a& follo:&: /a. !n a ca&e of ?udg(ent or final order upon a &pecific thing, the ?udg(ent or final order i& conclu&ive upon the title of the thingB and /+. !n ca&e of a ?udg(ent or final order again&t a per&on, the ?udg(ent or final order i& pre&u(ptive evidence of a right a& +et:een the partie& and their &ucce&&or& in intere&t +y a &u+&eAuent title* !n either ca&e, the ?udg(ent or final order (ay +e repelled +y evidence of a :ant of ?uri&diction, :ant of notice to the party, collu&ion, fraud or clear (i&ta1e of la: or fact* # )udgment rendered by a foreign court cannot be enforced in the Philippines e+cept by action.

f a foreign )udgment rendered in an action involving title to specific property, or the action in connection which a )udgment may have been rendered is a personal action. EIa31leK # vs. / involving specific property or personal action. %his case was filed in the US#. Let"s say that the )udgment was rendered in any case in favor of #. So, in the case of specific property, he is declared the owner. n the case of personal action, / was ordered to pay # money. %he trouble was, although this )udgment has already became final in the US#, it was not enforced or e+ecuted in US#. # and / came to the Philippines. # now files a motion in court for the e+ecution of that )udgment in US#. Q. Can that be done' A. Ao. it cannot be done. &ur courts do not enforce foreign )udgment. Q. (hat is the remedy available to # so that he can enforce this )udgment' A. Ee must file an action in the Philippine courts for the enforcement of that )udgment. Ee ,#. now files in the Philippines, $%C of 9anila for the enforcement of an action involving title or he will now file an action to enforce his )udgment. Q. (hat is the effect of this )udgment of the US court on the title on that property' (hat is the effect of this )udgment of the US court with respect to his money' A. %he rule says, I n the case of title to specific property, that )udgment is conclusive on the title to that property. n the case of personal )udgment, that )udgment is merely a presumptive evidence that # has a claim against /. %hat is why under the last paragraph, the rule says, I n any case, / may repel the )udgment by proof of lac3 of )urisdiction of the US court to render the )udgment. Lac3 of notice a clear mista3e of fact or of law committed by US court. S. (hat is strange here is thisV n the case of title to specific property, the law says, Ithe )udgment of the US court is conclusive to the title. /ut in the last part, a party against whom the )udgment is sought to be enforced in the Philippines can still question the )udgment because it says here, Iin either case,J meaning, whether the )udgment involves title to specific property or whether the )udgment involves personal action, Ithe )udgment or final order may be repelled by evidence of a want of )urisdiction, want of notice to the party, collusion, fraud or clear mista3e of law or fact.J (hereas under par ,a., the )udgment of US court insofar as title to the property is concerned is final! yet under the last paragraph, Iit can be repelled by proof of want of )urisdiction, lac3 of notice, fraud, collusion, clear mista3e of fact or of law. Q. (hat is strange here' A. Binal, but it can be repelled. (ith respect to the second case, the action for money, well, since this is merely a presumptive evidence of right of # against /, the right can be contested by showing lac3 of )urisdiction of the court, lac3 of notice, fraud, collusion, clear mista3e of law or fact. So that is something strange about thisV Boreign ?udgment: #siabest Limited vs. C# @.$. A&. -1;;>2 Sept. 18, -66; ,167 SC$# 826 A11eals Rule ?BK A11eal :ro3 MTC to RTC A vs. B -. 9%C ,$ule =>. Mode o: A11eal Aotice of #ppeal within the 9%C A11ellate Court $%C ,Ao trial denovo. Period o: A11eal (ithin -8 days from notice of )udgment and on proper case within 2> days. (here the case in inferior court involves a special proceeding or one which involves multiple appeal is 2> days a record on Questions Raised -. SB 1. &L 2. &BUL

1. $%C C+ercise of: a. &riginal ). # vs. / for specific performance ,# won: / appeal. issues raised on appeal

Aotice of #ppeal Biled with the same $%C that rendered )udgment ,question of law and question of fact or question or fact only..

C# ,-8O2>.

ssue raised on appeal b. #ppellate ?urisdiction C+. # vs. / 9%C! ?udgment was #ppealed to $%C

Petition for $eview on Certiorari ,$ule =8. ,question law only. C#: Petition for $eview

SC

appeal being required. A./. (hen there is a motion for reconsideration of the )udgment of $%C, the appeal period is counted from the receipt of the appellant of same ,-8 or 2> days. the order denying the motion for reconsideration. Same ,-8 or 2> days.

C# ,$egardless of the nature of the question raised.

Same ,-8 or 2> days.

Let us first ta3e the case of a )udgment of the 9%C. So, if the case is one between # and / and / appeals from the )udgment. Q. (hat would be his mode of appeal' ,9ode of #ppeal. A. Aotice of #ppeal Q. %o what court must he direct the appeal' ,Period of #ppeal. A. $%C -8O2> days Q. (ithin what period must he file the appeal' ,Period of #ppeal. A. %here is only one mode of appeal from a )udgment of an inferior court and that is notice of appeal. Q. (ith what court is this notice of appeal be filed' A. 9%C Q. (hat is the appellate court' A. &nly the corresponding $%C. %here can be no direct appeal from the 9%C to any court other than the corresponding $%C. So, / here cannot appeal directly to the C#. Ee cannot appeal directly to the SC. f he wants to go to the SC, he can go there, but not by appeal. %he period of appeal i& a& a rule #5 day& fro( notice of ?udg(ent. #nd on a proper case 2> days. (here the case in the inferior court involves a multiple appeal, the period of appeal is 2> days, a record on appeal being required. So, this case now of # and / in the $%C. Q. Eow will this case of / be resolved by the $%C' (ill there be a trial de novo when this case is before the $%C' A. Ao, there is no trial de novo. (hy' /ecause the $%C now will decide the appeal of / solely on the basis of the records of the case, the evidence presents as forwarded by the cler3 of court of the 9%C to the cler3 of court of the $%C. Q. (hat is needed for / here to perfect his appeal' A. (ithin the period for the ta3ing of an appeal, -8 days or in a proper case 2> days. / should also pay the appellate doc3et fee.

So, there are two things as an appellant here must do. <ile the notice on appeal on ti(e, and pay the appellate doc1et fee on ti(e* Q. (hat now is the duty of the cler3 of court of the 9%C upon the filing of the notice of appeal and payment of the appellate doc3et fee' A. Ee will now e+amine the records of the case preparatory to the elevation of the appropriate $%C and certify to the correctness of the records, certify to the completeness of the records. Q. (hat is the duty of the cler3 of court with respect to this certificate issued' A. Ee must furnish the parties: # and / with that certificates. %he records of the case are now with the $%C cler3 of court. Q. (hat now is the duty imposed by the rules on the cler3 of court' A. Upon receipt of the records, the cler3 of court of the $%C will now send a notice to both # and / informing them of the fact that, records are already there. Bor what' So that / , the appellant, may now file his memorandum on appeal. So it"s the duty of appellant / to file his memorandum on appeal within -8 days from notice or from within such period that appellate court may grant. Q. (hat is the effect of the failure of / to file the appellants brief, his memorandum' A. %hat could be a cause for the dismissal of the appeal of /. %he appellee, that is # here may also file the so<called #ppellees brief, but in case li3e this, the brief is called memorandum. So, # may also file his apellee"s memorandum within -8 days from receipt of the appellant"s brief or memorandum. Q. Supposing the apellee # does not file the apellee"s brief or memorandum, can the court decide the case' A. Hes. (hy' /ecause anyway the memorandum of the appellant / is already there. Q. (hat now will the $%C do on the case' A. %he court will now decide the case on the basis only of the records and the evidence forwarded by the inferior court to the $%C. Q. (ill not the court then hear # and / and receive their evidence' A. %he general rule is: A&Z %he court will only decide on the basis of what was presented in the lower court. ,Let us assume that # is the appellantV. %he appeal may have been the result of the following: # for instance appealed from an order disposing the case without trial. Let say / filed a motion t dismiss on the ground that the complaint does not state the cause of action. %he appellate court, $%C, will have the power to affirm the order or reverse the order. Let us suppose that the motion to dismiss was based on lac3 of )urisdiction. So, the 9%C, here dismissed the complaint of # on the basis of the motion to dismiss filed by /. ,$eason: %he 9%C has no )urisdiction.. Let us say that the $%C agrees with the finding of the 9%C that it has no )urisdiction. Q. (hat will be the action of the $%C on appeal' A. t will affirm the order of the court or it can order a hearing to be held as if this case was filed directly with the $%C. !llustration: %his is an action filed by # against / for reivindicacion in the 9%C. %he value of the property is P8>,>>> and this property is outside 9etro 9anila. So, / now files a motion to dismiss on the ground of lac3 of )urisdiction. So, the court dismissed it because the 9%C has )urisdiction over ,reivindicacion. cases only when the value of the property outside 9etro 9anila does not e+ceed P1>,>>>. Eere, since the value e+ceeds P1>,>>> it ,9%C. has no )urisdiction. So, the basis for the motion to dismiss by / is proper. # now appeals. %he $%C affirms the order. n fact the $%C says, Ithe 9%C has no )urisdiction. Since the $%C has )urisdiction over reinividicacion involving this amount, the court will try the case if this case was originally filed with the $%C.J Let us assume that in this e+ample, the court found that, contrary to the holding of the 9%C, the 9%C has no )urisdiction. Q. (hat will the $%C now do' A. t will return the case to the 9%C for further proceedings. So, in our e+ample for instance, the motion to dismiss that the court has no )urisdiction but the $%C found that the 9%C has )urisdiction, the $%C will not try the case. t will return the case to the 9%C for further proceedings.

Let us ta3e the second situation. %here was a trial between # and / in the 9%C. %he court ,9%C. has no )urisdiction. Ao )urisdiction notwithstanding, the court rendered now a )udgment in favor of #. So / appealed. %he court found that indeed the 9%C have no )urisdiction. Q. (hat will be the remedy available to the $%C' A. Li3e the first case, it will try the case. t will not dismiss. So there are the effects of appeal in the 9%C. %his is what is mentioned in Sec. ; $ule =>. %e<. D Rule ?B Appeal fro( order& di&(i&&ing ca&e :ithout trialB lac1 of ?uri&diction* G !f an appeal i& ta1en fro( an order of the lo:er court di&(i&&ing the ca&e :ithout a trial on the (erit&, the Regional Trial Court (ay affir( or rever&e it, a& the ca&e (ay +e* !n ca&e of affir(ance and the ground of di&(i&&al i& lac1 of ?uri&diction over the &u+?ect (atter, the Regional Trial Court, if it ha& ?uri&diction thereover, &hall try the ca&e on the (erit& a& if the ca&e :a& originally filed :ith it* !n ca&e of rever&al, the ca&e &hall +e re(anded for further proceeding&* !f the ca&e :a& tried on the (erit& +y the lo:er court, :ithout ?uri&diction over the &u+?ect (atter, the Regional Trial Court on appeal &hall not di&(i&& the ca&e if it ha& original ?uri&diction thereof, +ut &hall decide the ca&e in accordance :ith the preceding &ection, :ithout pre?udice to the ad(i&&ion of a(ended pleading& and additional evidence in the intere&t of ?u&tice* /n. Let us ta3e the case of $%C. %he )udgment of the $%C can be rendered in the e+ercise of its &$ @ A#L ?U$ SF C% &A or in the e+ercise of its #PPCLL#%C ?U$ SF C% &A. %he distinction is important because the modes of appeals are not the same. Let us assume that the $%C decided a case. # vs. / in the e+ercise of its original )urisdiction. Let us say that # won the case. / now wants to appeal. Q. (hat would be the mode of appeal of /' A. t would be a simple notice of appeal filed with the same $%C that rendered the )udgment. #ppellate courtV. C# @o:ever, if the only issue raised by / on appeal is question of law, then the mode of appeal is no longer a notice of appeal but under $ule =8 in which the case, the appellate court would no longer be the C# but the SC. et (e &tre&&V with respect to the )udgment of the $%C rendered in the e+ercise of its original )urisdiction, the mode of appeal may be a simple notice of appeal or a petition of certiorari depending on the question that is raised. f the question raised on appeal is only a question of fact, or a question of fact and law at the same time, the mode of appeal is a simple notice of appeal filed with the $%C, the appellate court is the C#. (here the appeal involves only a question of law, the mode of appeal is a petition for review or certiorari under $ule =8 and the appellate court is the SC. %he period is the same, -8 or 2> days. Q. Eow about the )udgment of the $%C rendered in the e+ercise of its appellate )urisdiction' A. Bor instance, this ,# vs. /. was )udgment of the 9%C which the court ruled upon on appeal and this )udgment of the $%C affirming, modifying or reversing the 9%C )udgment is in turned appealed. (hat would the be mode of appeal' A. %he mode of appeal is a petition for review ,$ =1.. Q. (hat would be the appellate court' A. $egardless of the nature of the question raised on appeal. %he question raised on appeal may be a question of fact, it may only be a question of law, or it can be a question of fact and law at the same time. t is the C# that has )urisdiction. Period of #ppealV %he same. /ut when there is a motion for reconsideration of the )udgment of the $%C, the appeal period is counted from receipt by appellant of the order denying the motion for reconsideration. #ppeal from )udgment of SC<#ppellate Court is @odZ 9ode of #ppeal<Period of #ppeal<CternallyZ ,?o3e only. (hy' Q. s there an appeal from the )udgment of SC' A. Ao more that"s why the only appellate court would be @od, the mode of appeal is prayer. ,Borget thatZ. RENE NOTE%K

X failure to file appellants brief cause for dismissal of appeal X failure to file appellee"s brief, court can still decide appeal based on appellant"s brief X %he )udgment on appeal of the $%C is immediately e+ecutory, without pre)udice to a further appeal that may be ta3en therefrom. X %he Summary $ules no longer apply when the cases is on appeal. N Residual 1ower o: t;e <ourt 1rior to t;e trans3ittal o: t;e ori0inal re<ord or re<ord on a11eal : -. to issue orders of the preservation of the rights which do not involve matters litigated by appeal! 1. to approve compromise prior to the transmittal of the record! 2. permit appeal by an indigent! =. order e+ecution pending appeal under $ule 26 Sec.1 ,motion for e+ecution was filed before the e+piration of the period to appeal. ORD!NAR$ APPEA X 9atter of right X #ll the records are elevated from the court of origin X Aotice of record on appeal is filed with the record of origin N >f lo6er court dis1issed t-e case 6it-out trial on 1erits@ < $%C may: ,a. #ffirm! or ,b. $everses, in which case, it shall remand the case for further proceedings. N >f dis1issal is due to lac. of 9urisdiction over t-e su"9ect 1atter@ < $%C may: ,a. #ffrim: if $%C has )urisdiction, shall try the case on the merits as if the case was originally filed with it, or ,b. $everse, in which case, it remand the case for further proceedings. N >f t-e case 6as tried on t-e 1erits "% t-e lo6er court 6it-out 9urisdiction over t-e su"9ect 1atter : < $%C shall dismiss the case, if it has original )urisdiction, but shall decide the case, and shall admit amended pleadings or additional evidence. Rule ?1K A11eal :ro3 Re0ional Trial Courts X );at <annot /e a11ealed' Clue: ,)E PA!D. -. ( %E&U% P$C?UF CC P &rder dismissing an action without pre)udice 1. CGCCU% &A P &rder of C+ecution 2. PCAF A@ P ?udgments or final orders for or against one or more of several parties or in separate claims while the main case is pending =. #PPC#L P &rders disallowing or dismissing an #ppeal 8. A%C$L&CU%&$H orders 7. FCA #LS P &rders denying P.9.S. ,Petition for relief, 9otion for new trial or reconsideration and motion to Set aside a )udgment, by consent, confession or compromise on the ground of fraud, mista3e, duress or any ground vitiating consent.. N Re1ed% in cases 6-ere appeal is not allo6ed: < Special civil action of certiorari or prohibition if there is lac3 of )urisdiction or grave abuse of discretion or mandamus if there is no performance of duty. X # )udgment based only on compromise is not appealable and is immediately e+ecutory. Rule ?5 K"rounds :or Outri0;t Dis3issal -. petition was filed out of time 1. required fees were not paid PET!T!ON FOR RE-!E) X Fiscretionary X Ao records are elevated unless the court decrees it X Biled with the C#

2. copies of the petition were not served on the adverse party < no proof of service =. failure to comply with the proper form for the petition 8. petition patently without merit 7. prosecuted manifestly for delay :. the questions raised are unsubstantial

Ordinary A11eal Fa11eal /y writ o: error8 X Case is decided by the $%C in its original )urisdiction #ppealed to the C# X Bile a notice of appeal or a record on appeal with the court of origin ,$%C. and give a copy to the adverse party. X (ithin -8 days from the notice of the )udgment for notice of appeal and within 2> days for records on appeal O %he period for filing is interrupted by a timely motion for reconsideration or new trial.

Petition :or review FRule ?58 X Case is decided by the 9%C. #ppealed to the $%C. Petition for review with the C#. X Bile a verified petition for review with the C# O Pay the doc3et and lawful fees, and P8>> as deposits for costs with the C# O Burnish $%C and adverse party copy of such ,$=1.. (ithin -8 days from notice of the decision to be reviewed or form the denial of a 9$ or new trial.

Petition :or review on <ertiorari Rule ?C X %he case raises only a question of law. X Bile a verified petition for review on certiorari with the SC ,$=8. O Pay doc3et and lawful fees and P8>> for costs O Submit proof of service of a copy to the lower court and adverse party. X (ithin -8 days from notice of the )udgment or order of denial of the 9$ or new trial.

Rule ?5K Petition :or Review :ro3 t;e Re0ional Trial Courts to t;e Court o: A11eals X Aailure to co1pl% 6it- t-e re7uire1ents on for1 suc- as: -. certification against forum shopping 1. non<payment of doc3et, lawful fees and 2. deposit for costs and =. failure to show proof of service of the same petition to the adverse party are grounds for dis1issal. X &utright dismissal allowed P Petition for review is not a matter of right but discretionary on the part of the C#. t may only give due course to the petition if it shows on its face that the lower court has committed an error of fact andOor law. X #C% &AS &A %EC PC% % &A Court may -. require respondent to file comment < -> days 1. dismiss the petition if it finds that: a. it is patently without merit b. prosecuted manifestly for delay c. the questions raised are unsubstantial X t is merely discretionary on the C# to order the elevation of the records. %his is because until the petition is given due course, the trial court may still issue a warrant of e+ecution pending appeal and in some cases such as e)ectment and those of Summary Prcedure, the )udgments are immediately e+ecutory. t is only when the C# deems it necessary that the Cler3 of the $%C will be ordered to elevate the records of the case. %ee Ta/le Rule ?6K APPEA % FROM T'E CTA AND Q&A%! *&D!C!A A"ENC!E% TO T'E APPEA % CO&RT OF

%e<. 1 Rule ?6 Sec. - of $ule =2, the different quasi<)udicial bodies which decisions are sub)ect to appeal to the Court of #ppeals are enumerated under. %o this list, you add two other bodies whose decisions are appellate to the Court of #ppeals: -. the order& of the o(+ud&(an i& ad(ini&trative di&cipline ca&e& n case of <a+ian v&* De&ierto, the court declared unconstitutional the provision of the law creating the office of the ombudsman which empowered the SC to review )udgment of the ombudsman iA administrative<disciplinary cases. So, under this decision, )udgment or orders of the ombudsman in administrative<disciplinary proceedings, are reviewable by the C#. Babian vs. Fesierto @. $. Y-16:=1 Sept -7, -66; 1. N RC /National a+or Relation& Co((i&&ion. ?udgment of AL$C are not appealable to the SC but to the C#. /efore the decision in Saint 0artin <uneral @o(e& v&* N RC, the )udgment of AL$C were reviewable be certiorari before the SC. n this case, ,Saint 9artin Buneral Eomes vs. AL$C. @.$. Y -2>;77, Sept -7, -66; 168 SC$# =6=, SC held that there is no law which authori*es appeals from )udgment of the AL$C to the SC. n this case, the SC traced the legislative history of the AL$C and it came into the conclusion that no one of the laws relative the AL$C provided for an appeal from )udgment of the AL$C to the SC. &f course you will notice that under Sec. 1 of $ule =2, )udgments of the Labor Law of the Philippines are not covered by $ule =2. /ut under this decision now, Saint 9artin case, the decision of the AL$C are now covered by the $ule =2. C+cept for some differences, the procedure of an appeal from )udgment of the quasi<)udicial bodies are practically the same as the procedure for the disposition of an appeal from the )udgment of the $%C in the e+ercise of its appellate )urisdiction. %hey are practically the same. (ith this difference only. /oth are reviewable by petition for review. EIa31le: # vs. / in SCC / lost the case in the SCC. / now wants to appeal from the )udgment of the SCC. Q. (hat is the mode of appeal' A. Petition for $eview Q. Period' A. %he same. %he period is within -8 days from receipt of the copy of the award, )udgment or order of the SCC. n case, however, the )udgment of a quasi<)udicial body requires it to be published in order that a )udgment may be valid, the -8 days period is counted from the last day of publication. n case there is a motion for reconsideration of the )udgment, order or award of the SCC, the -8<day period is counted from the receipt of the resolution denying the motion for reconsideration. Contents of Petition, Focuments to be attached theretoV leave this to you, so we can moveV %<o1e o: %e<. 1 Rule ?6 -. #ppeals from )udgment or final orders of the court of %a+ #ppeals! 1. #ppeals form awards, )udgments, final orders or resolution of or authori*ed by any quasi<)udicial agency in the e+ercise of the quasi<)udicial functions. ist o: A0en<ies -. Civil Service Commission 1. Central /oard of #ssessment #ppeals 2. Securities and C+change Commission =. &ffice of the President 8. Land $egistration #uthority 7. Social Security Commission :. Civil #eronautics /oard ;. /ureau of Patents, %rademar3s and %echnology %ransfer 6. Aational Clectrification #dministration ->. Cnergy $egulatory /oard

--. -1. -2. -=. -8. -7. -:. -;. -6. 1>. 1-. 11.

A%C Fepartment of #grarian $eform under $. #. Ao. 778: @overnment nsurance System Cmployees Compensation Commission #gricultural nventions /oard nsurance Commission Philippine #tomic Cnergy Commission /oard of nvestment Construction #rbitrators #uthori*ed by Law Aational Labor $elations Commission ,Saint 9artin Buneral Eomes vs. AL$C. &mbudsman ,Babian vs. Fesierto. Doluntary #rbitrators

Action of t-e CA on t-e petitionV t may dismiss outrightly the petition on the ground for instance that ,-. the motion was filed out of time! ,1. the required fees were not paid! ,2. copies of the petition were not served by the adverse party, etc. %he court may find that petition is not meritorious at all or the court may find that the petition was filed merely for purposes of delay, or the court may find the issues raised in the petition are too insubstantial to require further proceedings. &n the other hand, the court may find it proper to direct the respondent to file a comment with -> days from notice. So if the court gives the respondent time to comment that means to say that the court may grant to determine whether to give due course or not, to this petition. Let us say now that the comments have been filed Q. (hat now will the action of the court thereafter' A. %he court may then give due course to the petition or deny due course. Q. (hen will the court give due course here' A. f from the pleading, the comment on the petition itself if there is a prima facie showing that the body whose )udgment is sub)ect of petition may have committed an error. %his error is of fact or of law. Q. s it enough that the error was committed either of fact or of law' A. Ao. #n error that may warrant a reversal of the )udgment, order or award appeals from or which may warrant at least a modification of the )udgment appeals. Q. f the court gives due course, how will the C# decide now the case' A. #t its option, it may now require the quasi<)udicial body, SCC in our e+ample, elevate to the C# the records of the case. Let us assume that the records have been elevated to the appellate court. Q. (ill the case now be submitted for decision' A. Aot yet. C# may require the parties to submit their memorandum within a given period of time. Upon the filing of the memorandum or the e+piration of the period of the filing thereof, the case may now be submitted for decision. ,%hat"s how simple it isZ. Q. (hat is the difference between the effect of an appeal from a )udgment rendered by a quasi<)udicial body on the e+ecution of the )udgment appealed from the effect of an appeal in an ordinary case from the )udgment of C# where the )udgment is that of a $%C' A. n the case of a )udgment of the quasi<)udicial body, the appeal therefore does not stay the e+ecution of the )udgment. t is immediately e+ecutory. @o:ever, this is sub)ect to an e+ception where the appeal from the )udgment of the SCC or any quasi<)udicial body for that matter stay the e+ecution when the C# itself orders the stay of an e+ecution. &n the other hand, a )udgment of the $%C appealed from cannot be e+ecuted during the pendency of the appeal, that is the general rule. n other words, an appeal from a )udgment of the $%C to the C# is stayed. Q. s there a case however, where a )udgment is that of a $%C and yet an appeal therefore does not stay the e+ecution' A. Hes. %hat is when the )udgment rendered by the $%C involves a case which is decided under the rules on summary procedure in which case, the appeal therefore does not stay the e+ecution of the )udgment. EIa31le:

%he $%C affirmed the )udgment of the inferior court in a forcible entry case, which ordered the defendant to vacate the premises. %he $%C affirmed the )udgment. %he defendant / filed a petition for review under $ule =1 ,petition for $eview from the $%C to SC.. Q. 9ay this )udgment against him be enforced notwithstanding his appeal therefore in C#' A. Hes. t"s the only e+ception. RENE NOTE%K "rounds :or Outri0;t Dis3issal -. Petition filed out of time 1. $equired fees were not paid 2. Copies of the petition were not served on the adverse party =. Contents of appeal does not follow the prescribed form "rounds :or Dis3issal F&1on 3otion8 -. Patently without merit 1. Prosecuted manifestly foe delay 2. Suestions raised are unsubstantial to require consideration PROCED&RE !N T'E CO&RT OF APPEA % R& E ??K Ordinary A11ealed Cases Ti3e to File a. appellant"s brief < =8 days from notice of cler3 of court b. appellee"s brief < =8 days from receipt of appellant"s brief c. appellant"s reply brief < 1> days from receipt of appellee"s brief X Bailure to file appellant"s brief on time is a ground for dismissal of the appeal. X f a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the appellant brief, as the same would be unnecessary should the motion be granted. X %he failure of the appellant to ma3e specific assignment for errors in his brief or page references to the record as required in this section is a ground for dismissal for his appeal. Rule ?CK A11eal /y Certiorari to t;e %u1re3e Court X #ppeals to the Supreme Court can be ta3en from a )udgment or final order for resolution of the C#, the Sandiganbayan, the $%C or such other court as may be authori*ed by law and only by a verified petition for review on certiorari on questions of law eCcept in appeals from )udgments of the $%C in criminal cases wherein the penalty imposed is life imprisonment, or reclusion perpetua which shall be elevated by ordinary appeal, or wherein the death penalty is imposed which is sub)ect to automatic review. Q&E%T!ON% OF A) X doubt of controversy as to what the law is on ceratin facts X if the appellate court can determine the issue raised without reviewing or evaluating the evidence X can involve questions of interpretation of the law with respect to the ceratin set of facts Q&E%T!ON% OF FACT X doubt or difference arises as to the truth or falsehood of facts, or as to probative value of the evidence presented X the determination involves evaluation or review of evidence X qeury invites the calibration of the whole evidence considering mainly the credibility of witnesses, e+istence and relevancy of specific surrounding circumstances and relation to each other and the whole probabilities of the situation

X #s a 0eneral rule, the findings of fact of the C# are final and conclusive and cannot be reviewed on appeal to the SC. EI<e1tions to Con<lusiveness o: Fa<tsK -. (hen the finding is grounded entirely on speculations, surmise of con)ecture!

1. (hen inference made is manifestly absurd, mista3en or impossible! 2. (hen the )udgment is premised on a misrepresentation of facts! =. (hen there is grave abuse of discretion in the appreciation of facts! 8. (hen the findings of facts are conflicting! 7. (hen the C# in ma3ing its findings went beyond the issues of the case and the same is contrary to both the admissions of appellants and appellees! :. (hen the findings of fact of the C# are at variance with those of the trial court, the SC has to review the evidence in order to arrive at the correct findings based on the record! ;. (hen the findings of fact are conclusions without citation of specific evidence on which they are based! 6. (hen the facts set forth in the petition as well as in the petitioner"s main and reply briefs are not disputed by the respondents! ->. %he findings of fact of the C# is premised on the supposed evidence and is contradicted by the evidence on record! --. (hen certain material facts and circumstances have been overloo3ed by the trial court which, if ta3en into account, would alter the result of the case in that they would entitle the accused to acquittal. N Certiorari under Rule ?C vs. <ertiorari under Rule 7C Fs1e<ial <ivil a<tion8 CERT!ORAR! &NDER R& E ?C X petition is based on questions of law t is a mode of appeal X involves the review of the )udgment award or final order on the merits X must be made within the reglementary period X stays the )udgment or order appealed from CERT!ORAR! &NDER R& E 7C X petition raises the issue as to whether the lower court acted without )urisdiction or in e+cess of )urisdiction or with grave abuse of discretion Special civil action X directed against an interlocutory order of the court or where there is no appeal or any other plain, speedy or adequate remedy X filed not later than 7> days from notice of )udgment, order of resolution appealed from X unless a writ of preliminary in)unction or temporary restraining order is issued does not stay the challenged proceeding X the parties are the aggrieved party against the lower court or quasi<)udicial agency and the prevailing parties X 9otion for reconsideration or for new trial is required X Bile a motion for reconsideration or new trial is filed, the period shall not only be interrupted /ut anot;er 7B days s;all /e 0iven to t;e 1etitioner ,SC #dmin. 9atter >>1<>2. X court e+ercises original )urisdiction

X the petitioner and the respondent are the original parties to the action, and the lower court or quasi< )udicial agency is not impleaded X 9otion for reconsideration is not required

X the court is in the e+ercise of its appellate )urisdiction and the power of review Rule ?7KOri0inal Cases F!n t;e CA8

Under /P /lg. -16, the C# has original )urisdiction to issue writ of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and au+iliary writs or processes, whether or not they are in aid of its appellate )urisdiction, and it has e+ecutive original )urisdictions over actions for annulment of )udgments of $egional %rial Courts. T;e <ourt a<quires =urisdi<tionK ,-. &ver petitioner by filing of the petition ,1. &ver the respondent by the service on the latter of the order or resolution indicating the courts initial action on the petition and A&% by the service on him of the petition. Pro<edural Outline ,original cases in the Court of #ppeals. -. Biling of the petition 1. &rder to acquire )urisdiction over respondents &$ &utright dismissal for failure to comply to requirements also form and payment of doc3et and other legal fees. 2. $equire respondents to file C&99CA% within -> days from A&% CC

=. Court may require the filing of a $CPLH or such other pleadings as it may deem necessary 8. Fetermination of B#C%U#L SSUCS < the court may delegate the reception of evidence on such issues to any of its members. Rule ?4K Annul3ent o: *ud03ent or Final Orders and Resolutions ,#nnulment of ?udgments rendered by the $%C and #nnulment of ?udgment rendered by the nferior Court. Q. (hen may a )udgment of the $%C be the sub)ect of a petition for annulment in the C#' A. f a )udgment has already become final and the loosing party lost the right to file a petition for review or lost any other remedy against this )udgment without his fault then he may file a petition for annulment of this )udgment. %his means to say that if the party against whom the )udgment was rendered lost the right to file a petition for relief or lost any other remedy which could have been available to him because of his fault, then he cannot avail of this $ule =:. EIa31leK n the $%C, the parties were # and /. # )udgment was rendered against /. %his )udgment became final. Q. (ell, what did we learn under $ule 26' A. (hen a )udgment becomes final, there is nothing left to be done but to e+ecute it. Q. (hy did this )udgment become final' A. /ecause / failed to file a notice of appeal. /ecause / failed to file a motion for reconsideration: because / failed to file a motion for new trial! because / failed to file a petition for relief. The lo&t of any of the&e right& :a& not due to the fault of ,* !f the lo&t of any of the&e re(edie& :a& on account for the fault of ,, then , cannot file an action for annul(ent . Period within which / may now file an action for annulment in C#V %he period depends on the ground whether the ground is e+trinsic fraud or the ground is lac3 of )urisdiction. !f the ground i& fraud, he Eas four ,=. years from discovery of the fraud with which to file an action. !f it i& lac1 of ?uri&diction, at any time before the action is barred by laches or estoppel. %hese are the only periods. Q. (hat are the 0rounds' A. t"s either eCtrin&ic fraud or lac1 of ?uri&diction %hese are the only two ,1. grounds available to /. Q. (hat is an e+trinsic fraud as contradicting intrinsic fraud' A. Let"s illustrate each of themV EIa31leK Supposing during the trial, in the $%C, # submitted in evidence a forged document. C+hibit I#J. #nd on the basis of this forged document alone, the court rendered a )udgment in favor of #. Q. / files an action to annul this )udgment on the ground of e+trinsic fraud. s this ground ,forgery. an e+trinsic fraud' A. Ao, what then' ntrinsic fraud. Let"s reverse the situationV EIa31leK # and / received the notice of pre<trial setting the pre<trial for specific date. /efore the date of the pre<trial, # met / and said, I/, already filed a motion for postponement. %he court has already granted it. Hou do not have to appear anymore in the court for the pre<trial.J /elieving on the truthfulness of #, / did not appear for the pre<trial. &n the day of the pre<trial, however # appeared in court. /ecause of the absence of /, # now moves that he be allowed to present his evidence e+ parte. %hereafter, the court rendered )udgment. %he )udgment in favor of # became final. / now wants to file an action for annulment based on e+trinsic fraud. Q. (ith what e+trinsic fraud consist of' A. #ccording to him ,/., the misrepresentation of # that the pre<trial set on the scheduled date was cancelled.

Q. s it the contention of / here correct' A. Hes, it is correct. (hy' %hat 3ind of a fraud committed against him was committed outside the trial. (hereas, the fraud consisting in the introduction of evidence in court of that C+hibit I#J is an intrinsic fraud. Q. (hat is the difference' A. n the case of an intrinsic fraud, there is an opportunity for the adverse party to counteract that fraud. n this case, / could have presented on the fact that this document is a forgery. Ee did not. %hat is his ,/. fault. /ut in the case of the second misrepresentation, / would not have rebut it with contrary evidence because that was not committed outside the trial. %his is the concept of e+trinsic fraud. &f course the other ground is lac3 of )urisdiction. 'rocedure* f / is to file the petition. %he contents of the petition are stated in $ule =:, do not have to repeat, e+cept for this matter. The petition &hould +e acco(panied +y affidavit& of :itne&&e& of the party filing the petition . n our e+ample, the petition of / should be accompanied by affidavits of his witnesses. So, since he was the defendant in the trial below ,$%C., the affidavit of his witnesses must be those which would support his defense against the action of #. f it were # who filed his petition, his petition should be accompanied by affidavits of his witnesses on the cause of action of #. %he petition is now there in court ,C#.. Q. (hat now will be the action of C#, will it immediately give the due course or it can dismiss outright the petition' A. %here are two ,1. causes of action that C# may ta3e this case: -. immediately dismiss the petition. @round the petition in its ,C#. view is not impressed with merits. n other words, it is not meritorious. %hen the court can immediately dismiss it. 1. %he court finds the petition to be impressed with merits ,with prima facie merit.. Q. %hen what shall C# do' A. %hen it will give it due course. Eow' %he rule now says, Ithat this case will now be treated as if it were an ordinary case filed in the $%C.J %hat"s why the respondent in this case now, # will have to be summoned. Q. (hat will be required of / here' A. / will be required to file his answer and thereafter, trial shall proceed as if this were a case pending in the $%C. Q. (ill there be an actual trial in the C# or in short may the C# receive the evidence itself' A. %here are several options available to the C.#. regarding the Cvidence which it is required to receive. t may authori*e any of its members to receive the evidences. n other words, the members of the C# assigned to receive the evidence will act as if he were a )udge of $%C conducting a trial. %he C# may delegate the reception of the evidence to another )udge, an appropriate )udge. #ny )udge' Ao, ?udge of the $%C. So these are the options available to the C#. Q. (hat is the e+tent of the power of the $%C )udge to whom the reception of the evidence of the parties has been delegated by the C#' 9ay the $%C decide the case' A. Ao. (hy' /ecause the power delegated to him is the power to receive the evidence, not the power to decide the case. t will still be the C# that will render the )udgment. So after the reception of the evidence either by the C# itself or by a )udge of the $%C, the C# will now decide the case. %he decision may be dismissal of the petition. %his means to say that the grounds have not been proven. So the decision of the $%C stands. %he )udgment of the C# may be to grant the already e+pired decision. %his is what is meant by this suspension of prescriptive period ,Sec. ; $ule =:. %e<. 4 Rule ?4 FE::e<t o: *ud03ent8

A ?udg(ent of annul(ent &hall +e &et a&ide the Aue&tioned ?udg(ent or final order or re&olution and render the &a(e null and void, :ithout pre?udice to the original action +eing refilled in the proper court* @o:ever, :here the ?udg(ent or final order or re&olution& &et a&ide on the ground of eCtrin&ic fraud, the court (ay on (otion order trial to try the ca&e a& if a ti(ely (otion for ne: trial had +een granted therein* %e<. D Rule ?4 %us1ension o: Pres<ri1tive Period The pre&criptive period for the refilling of the afore&aid original action &hall +e dee(ed &u&pended fro( the filing of &uch original action until the finality of the ?udg(ent of annul(ent. Lo6ever, the pre&criptive period &hall not +e &u&pended :here the eCtrin&ic fraud i& attri+uta+le to the plaintiff in the original action* (e said that, where the )udgment is declared void, this action can be refilled. Eowever, where the ground, which serves as the basis of the C# in setting aside the )udgment of $%C was e+trinsic fraud, instead of having this case refilled, the trial may be declared to hear anew the case as if a motion for new trial was granted * EIa31leK %he )udgment of the $%C was set aside. %he ground was e+trinsic fraud. (e say that as a result of this )udgment, the plaintiff here, #, may re<file the case or instead of refilling the case, the C# may direct the $%C to continue hearing the case. t is as if there was a new trial granted. Eowever, if the basis of the C# in setting aside the )udgment of the $%C was lac3 of )urisdiction, obviously, the C# cannot direct the $%C to hear this case. t has to be re<filed. %he prescriptive period for the filing of the aforesaid original action shall be deemed suspended from the filing of said original action until the finality of )udgment of annulment. Eowever, the prescriptive period cannot be suspended where the e+trinsic fraud is attributable to the plaintiff in the original action. EIa31leK $%C<# vs. /. Let"s say that the cause of action that can be brought within four ,=. years from the happening. Let say this cause of action became the sub)ect of a complaint filed by # against / on ?anuary 1, -662. Q. (hat do you notice here' A. #t the time the action was filed, only one ,-. year of the prescriptive period remained. %his )udgment in favor of # became final on ?an. 2, -66=. this )udgment however, was rendered in favor of #. So, in the C# now, / filed an action for annulment on ?an. 8, -668. # )udgment annulling this decision of the $%C that was rendered by the C# and became final on ?an. 7, -66:. Since the e+trinsic fraud by # and # elected to re<file the case in the $%C. Ee filed this case # vs. / on ?an. :, -666. Q. Eas his action prescribe or did not prescribe' A. %he law saysV Since # was the one guilty of e+trinsic fraud, the period between the time he filed the original complaint ,?an. 1, -662. and the time )udgment became final ,)an. 7, -66:.. %he period between the first time the case was filed and time of the )udgment of C# ,?an. 7, -66:. became final, this was not suspended. So, if you add therefore the period from ?an. -, -66> to the time he filed the second action ,?an. :, -666., you have already a period of nine ,6. years. Ee only has four ,=. years. PrescribedZ f however, the ground of the annulment was not in )urisdiction, not fraud, for purposes of refilling the case, this period is suspended. %herefore, at the time this case was re<filed, the period may not have yet prescribed. ?anuary -, -66> # vs. / ?anuary 1, -662 %he cause of action arose on ?an. -, -66>. %he cause of action prescribes in four ,=. years from happening. # filed a complaint against / in $%C ,original complaint. ,at the time of filing, only one ,-. year left in the prescriptive period. ?anuary 2, -66= ?udgment in $%c became final. ?udgment in favor of #. ,/y reason of e+trinsic fraud committed by #. ?anuary 8, -668 / filed an action for annulment by reason of e+trinsic fraud committed by #. ?anuary 7, -66: %he )udgment of C# annulling the decision of the $%C became final ?anuary :, -666 Since the e+trinsic fraud was committed by #, he ,#. ,elected to. re<filed the case in the $%C, # vs. /. AoteX Aine ,6. years have elapsed. Aot suspended because e+trinsic fraud by #.

%he period from ?anuary 1, -662 ,first case was filed to. ?anuary 7, -66: ,C# decision became final. was not suspended because the e+trinsic fraud was committed by a ,plaintiff.. %herefore, from ?anuary -, -66> to ?anuary :, -666, the cause of action already prescribed. Aote that the cause of action in the above e+ample prescribes in four ,=. years.

RENE NOTE%K Rule ?4K );en to File 3 if failed to file :ithout fault -. notice of appeal 1. motion for reconsideration 2. motion for new trial =. petition for relief EItrinsi< Fraud < Braud committed outside the trial and not in the course of the trial X e+trinsic fraud shall A&% be a valid ground if: < it was availed of or could have been availed of in a: a. motion for new trial b. petition for relief E::e<t o: *ud03ent a. annulment based on lac3 of )urisdiction P original action may be refilled. b. based on e+trinsic fraud P trial court will try the case. ,as if a motion for new trial was granted. Rule ?DK Preli3inary Con:eren<e X Aot mandatory T;in0s taken u1K -. possibility of an amicable settlement 1. clarification of issues 2. formulation or stipulation of facts =. other matters which may aid in the prompt disposition of the case Rule ?@K Oral Ar0u3ent X Aot mandatory X %he oral argument shall be limited to such matters as the court may specify in its order or resolution. Rule CBK Dis3issal o: A11eal "rounds :or Dis3issal ,a. Bailure of the record on appeal to show on its face that the appeal was ta3en within the period fi+ed by these $ules! ,b. Bailure to file the notice of appeal or the record on appeal within the period prescribed by these $ules! ,c. Bailure of the appellant to pay the doc3et fee and other lawful fees as provided in Section 8 of $ule => and Section = of $ule =-! ,d. Unauthori*ed alterations, omissions or additions in the approved record on appeal as provided in Section = of $ule ==! ,e. Bailure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these $ules! ,f. #bsence of specific assignment of errors in the appellant"s brief, or of page references to the record as required in Section -2, paragraph ,a., ,c., ,d. and ,f. of $ule ==! ,g. Bailure of the appellant to ta3e the necessary steps for the correction or completion of the record within the time limited by the court in its order! ,h. Bailure of the appellant to appear at the preliminary conference under $ule =; or to comply with orders, circulars, or directives of the court without )ustifiable cause! and ,i. %he fact that the order or )udgment appealed from is not appealable. ,-a. X #n appeal erroneously ta3en to the Court of #ppeals shall not be transferred to the appropriate court but shall be dismissed outright.

X #n appeal will be withdrawn as a matter of right at anytime before the filing of the appellee"s brief. %hereafter, the withdrawal will be allowed in the discretion of the court. Rule C1K *ud03ent A <ase s;all /e dee3ed su/3itted :or =ud03entK #. >n ordinar% appeals < -. (here no hearing on the merits of the main case is held a. upon the filing of the last pleading, brief or memorandum! or b. e+piration of the period for filing 1. (here hearing on the merits of the main case is held a. upon its termination! b. upon the filing of the last pleading or memorandum! or c. e+piration of the period for filing ,* >n original action and petition for revie6 G -. (here no comment is filed a. upon the e+piration of the period to comment! 1. (here no hearing is held a. upon the filing of the last pleading! or b. e+piration of the period for filing! 2. (here hearing is held a. upon its termination! b. upon the filing of the last pleading or memorandum! or c. e+piration of the period for filing. Rule C5K Motion :or Re<onsideration X %he rules now prohibit a second motion for reconsideration. X %he pendency of a motion for reconsideration filed on time shall stay the e+ecution of the )udgment. X %he rules now require the service of the motion to the adverse party. Rule C6K New Trial Q. (hen may a motion for new trial in C# be filed' A. #t anytime after the appeal has been perfected up to the time the C# has not yet lost )urisdiction over the case. Q. (hat is the )urisdiction here' A. EIa31le: # vs. / in the $%C. Let"s say that / appealed to C#. / wants to file a motion for new trial. Q. (ithin what period must he file it' A. %he law says, Iat anytime after the appeal has been perfectedJ. Let us say that the appeal made was perfected on Fec. -, -66;, until then the court still retains )urisdiction. Let us say that a )udgment was rendered by the C# on Fec. -, -66;. Let us assume also that / received the copy of the decision on Fec. 2, he has a -8<day period therefrom within which to file a petition for certiorari in the SC. So, the last day for him to file would be Fec. -;, -66;. Q. (hen then can he file a motion for new trial' A. #t anytime between the date ,Fec. -, -66; to Fec. -;, -66;. before the court lost its )urisdiction. /ecause if there is no perfected petition for certiorari as of Fec. -;, -66;, the following day, the )udgment already becomes final. So, the court no longer has any )urisdiction. So, between these two dates ,Fec. - to Fec. -;.. %here is only one ground for a motion for new trial under $ule 82. %he motion for new trial in the C# can be based only on one ground that is ne:ly di&covered evidence. Cvidence which would not have been discovered while the case is pending before trial in $%C ,in our e+ample.. Cven with due

diligence, / in this e+ample, would not have presented that evidence and which if presented will probably alter the )udgment of C# already rendered. %his is in contrast with the ground of a motion for new trial under $ule 2:. %here are two grounds where a )udgment which has been rendered against a party because of B#9C that affected the substantial rights. %his is not available in the C#. Q. Eow will the C# here resolve this motion for new trial' A. t will conduct a hearing. Q. (ho may receive the evidence in this case' A. Unli3e a motion for new trial in a criminal case which can be conducted by a trial court, a (otion for ne: trial in a civil ca&e can +e heard only +y CA it&elf. %his is a distinction between the two. Q. (hen should this motion for new trial be resolved' A. (ithin 6> days from the date the motion for new trial is submitted for resolution. #ssuming now that the motion for new trial has been granted, what will be the ne+t proceeding' Unless the court otherwise directs, the procedure in the new trial shall be the same as that granted by the $%C. Eow $%C conducts a trial following the grant of a motion for new trial. RENE NOTE%K PROCED&RE OF T'E %&PREME CO&RT Rule C7K Ori0inal and A11eal Cases Ori0inal Cases Co0niSa/le -. Certiorari 1. Prohibition 2. 9andamus =. Suo warranto 8. Eabeas Corpus 7. Fisciplinary proceedings against members of the )udiciary and attorneys :. Cases affecting ambassadors, other public ministers and consuls X #n appeal to SC can only be ta3en by petition for review on certiorari, eCcept in criminal cases where the penalty imposed is death, reclu&ion perpetua, or life imprisonment. "rounds :or dis3issal o: a11eal /y %CK a. Bailure to ta3e appeal within the reglementary period! b. lac3 of merit in petition! c. failure to pay the requisite doc3et fee and other lawful fees to ma3e deposit for costs! d. failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition! e. failure to comply with any circular, directive or order of the SC without )ustifiable cause! f. error in choice or mode of appeal! g. case is not )ustifiable to SC. X Fiscretionary upon SC ,and C#. to call for preliminary conference similar to pre<trial. X"R: #ppeal to SC by notice of appeal shall be dismissed EI<e1tion: n criminal cases where the penalty imposed is life imprisonment, or when a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed ,Sec. 2, $ule -11.. X #ppeal by certiorari from $%C to SC submitting issues of fact may be referred to the C# for decision for appropriate action, without pre)udice to considerations on whether or not to give due course to the appeal as provided in $ule =1. PRO-!%!ONA REMED!E% Rule C4K Preli3inary Atta<;3ent X Provisional re3edies ,anciliaryOau+iliary. P writs and processes available during the pendency of the action may be resorted to by a litigant to reserve and protect rights and interests therein pending rendition, and for the purpose of ultimately effecting a final )udgment in the case. P$&D S &A#L P constituting temporary measures availed of during the pendency of the action.

#AC L #$H P incidents in and dependent on the result of the main action.

XPreli3inary Atta<;3ent a. available even if the recovery of personal property is only an incidental relief sought in the action! b. may be resorted to even if the personal property is in the custody of a third person! c. e+tends to all 3inds of property, real or personal or incorporeal! d. to recover possession of personal property un)ustly detained, presupposes that the same is being concealed, removed, or disposed of to prevent its being found or ta3en by the applicant! e. can still be resorted to even if the property is in cu&todia legi&, as long as the property belongs to the defendant, or is one in which he has proprietary interests, #AF with permission of the court. X"rounds a. recovery of specified amount of money and damages, e+cept moral or e+emplary, where party is about to depart from the Phils with the intent to defraud creditors! b. action for money or property embe**led or for willful violation of duty by public officers, officers of corp, agent or fiduciary! c. recovery of possession of property ,both real and personal. un)ustly detained, when the property is concealed or disposed of to prevent is being found or ta3en! d. action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof! e. action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors! f. action against party who is not a resident of the Phils and cannot be found therein upon who service by publication can be made. X PR!NC!P E OF PR!OR OR CONTEMPORAR$ *&R!%D!C!TON FPreli3inary Atta<;3ent8 < Cnforcement of writ of preliminary attachment must be made preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party! /U% the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non< resident of the Phils or the action is in rem or quasi in rem. X );en 1reli3inary atta<;3ent is dis<;ar0ed a. debtor posts a counterbond or ma3es requisite cash deposit P if attachment to be discharged is with respect to particular property, counterbond or deposit shall be equal to the value of the property as determined by the court! in all other cases, amount of counterbond should be equal to the amount fi+ed in the order of attachment. X CAS@ DE'-S!T -< C-UNTER,-ND S@A SECURE T@E 'AL0ENT -< ANL )UDG0ENT T@AT ATTAC@!NG 'ARTL 0AL REC-"ER /. applicant"s bond is insufficient or sureties fail to )ustify! <. attachment was improperly or irregularly issued! d. property attached is e+empt from e+ecution! e. )udgment is rendered against attaching party! :. attachment is e+cessive P discharge is with respect to the e+cess X #pplication for discharge may only be filed with the court where the action is pending and may be filed even before enforcement of the writ so long as there has been an order of attachment. X );en to a11ly :or da3a0es a0ainst t;e atta<;3ent /ond a. before trial! b. before appeal perfected! c. before )udgment becomes e+ecutory! d. in the appellate court for damages pending appeal, before )udgment becomes e+ecutory. X (hen )udgment becomes e+ecutory, sureties on counterbond to lift attachment are charged and can be held liable for the amount of )udgment and costs upon notice and summary hearing. %here is no need to first e+ecute )udgment against obligor before proceeding against sureties. X Clai3s :or da3a0es <annot /e su/=e<t o: inde1endent a<tion eI<e1tK a. when principal case is dismissed by the trial court for lac3 of )urisdiction without giving the claiming party opportunity to prove claim for damages! b. when damages sustained by a third person not a party to the action. Rule CDK Preli3inary !n=un<tion X Preliminary in)unction distinguished from Prohibition

Preli3inary !n=un<tion @enerally directed against party to the action but may be against any person Foes not involve the )urisdiction of the court

9ay be main action itself or )ust a provisional remedy in the main action X "rounds :or Preli3inary !n=un<tion a. plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts ,latter is preliminary mandatory in)unction.! b. the commission of acts or non<performance during pendency of litigation would probably wor3 in)ustice to the plainitiff! c. defendant is doing or about to do an act violating plaintiff"s rights respecting the sub)ect of the action and tending to render )udgment ineffectual. X !n=un<tion 3ay /e re:used or dissolved w;en: a. complaint is insufficient! b. defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable in)ury if in)unction granted or continued while plaintiff can be fully compensated! c. plaintiff"s bond is insufficient or defective. X Ao preliminary in)unction or %$& may be issued without posting of bond and notice to adverse party and hearing. X PR!NC!P E OF PR!OR OR CONTEMPORAR$ *&R!%D!CT!ON: (hen an application for a writ of preliminary in)unction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple<sala court, shall be raffled only after A&% CC to and A %EC P$CSCACC of the adverse party or the person to be en)oined. n any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint and the applicant"s affidavit and bond, upon the adverse party in the Phils! /U% the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non<resdent of the Phils. X di::eren<e wit; 1rin<i1le in 1reli3 atta<;3ent P in attachment, the principle applies only in the implementation of the writ, while in applications for in)unction or %$&, this principle applies before the raffle and issuance of the writs or %$&. X %$& good for only 1> days from service! 7> days for C#! until further orders from SC. X %$& can be issued eC parte only if matter of grave urgency and plaintiff will suffer grave in)ustice and irreparable in)ury. @ood for :1 hours from issuance, within which )udge must comply with service of summons, complaint, affidavit and bond, and hold summary hearing to determine whether the %$& should be e+tended for 1> days. n no case can %$& be longer than 1> days including :1 hours. Rule C@K Re<eivers;i1 X );en re<eiver 3ay /e a11ointedK a. party has an interest in the property or fund sub)ect of the action and such is in danger of being lost, removed or materially in)ured! b. action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially in)ured and that its value is probably insufficient to discharge the mortgage debt, &$ that the parties have stipulated in the contract of mortgage! c. after )udgment, to preserve the property during the pendency of the appeal, or to dispose of it, or aid in e+ecution when e+ecution has been returned unsatisfied or the )udgment debtor refuses to apply his property to satisfy )udgment, or to carry out the )udgment. d. when appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation. X );en re<eivers;i1 3ay /e deniedMli:tedK a. appointment sought is without sufficient cause! b. adverse party files sufficient bond for damages! c. applicant or receiver"s bond is insufficient.

Pro;i/ition Firected against a court, tribunal, or person e+ercising )udicial powers 9ay be on the ground that the court against whom the writ is sought acted without or in e+cess of )urisdiction #lways a main action

X /oth the applicant for receivership and the receiver appointed must file separate bonds. X n claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 1>, $ule 8:, whether it is damages against the applicant"s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver"s management ,in the latter case, no longer need to file a separate action.. Rule 7BK Re1levin X $eplevin a. available only where the principal relief sought in the action is the recovery of possession of personal property! b. can be sought only where the defendant is in the actual or constructive possession of the personal property involved. c. e+tends only to personal property capable of manual delivery! d. available to recover personal property even if the same is not being concealed, removed, or disposed of! e. cannot be availed of if property is in cu&todia legi&, as where it is under attachment, or was sei*ed under a search warrant or distrained for ta+ assessment. M Defendant entitled to return of property ta1en under :rit if: a. he seasonable posts redelivery bond b. plaintiff"s bond if insufficient or defective c. property is not delivered to plaintiff for any reason. ; replevin "ond is only intended to indemnify defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending trial of the action. %hus, surety not liable for payment of )udgment for damages rendered against plaintiff on a counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs which are unconnected with the defendant"s deprivation of possession by the plaint %1e<ial Civil A<tions Rule 75K !nter1leader Q. (hy are these called ISpecial Civil #ctionsJ' A. /ecause of their nature, there are special procedures to follow. %he first of this special civil action is the case of an interpleader. Q. (hat is the concept of an interpleader' A. EIa31leK # leased an apartment to /. So, pursuant to this agreement, / have been occupying this apartment paying the rentals. #fter the lease period has run, let"s say, si+ ,7. months, here now surfaces C. C said, I/ does not pay anymore the rentals to #, this apartment is mine. Pay to me.J / is in a dilemma. f he ,/. pays to # and it turns out later that C has a better right, he runs the ris3 of paying twice. f he pays to C, he runs the ris3s of paying again to # because C may not have the right. Q. f you were /, what is the remedy available to you, so that regardless of who is the party entitled to receive, you will be protected' A. Bile a suit for interpleader. / vs. # and C. (hy' So that # and C can fight it out in this case. So, / initiates the complaint against two ,1. people who do not want to go to court and litigate. So, this process of interpleader, # and C are compelled to fight each other. %hat is the concept of interpleader. %e<. 1 Rule 75 Whenever conflicting clai(& upon the &a(e &u+?ect (atter are or (ay +e (ade again&t a per&on :ho clai(& no intere&t :hatever i& the &u+?ect (atter, or an intere&t :hich in :hole and in part i& not di&puted +y the clai(ant&, he (ay +ring an action again&t the conflicting clai(ant& to co(pel the( to interplead and litigate their &everal clai(& a(ong the(&elve&* (e now have this complaint by / against # and C. Q. (hat is the prayer of / here'

A. %hat # and C be directed to interplead with each other. 9eaning, that # and C should fight it out and have this matter of who is entitled to the rental. #ctually, it is not / who is fighting # or C. t is # and C who are fighting each other. Q. /ut who initiated the fight between the two ,1.' A. /. Q. (hat now is the procedure to be followed by the court when this interpleader action was filed' A. #ctually, # and C will also be summoned under $ule -=. /ut with this difference, accompanying the summons is an order of the court. %e<. 5 Rule 75 Upon filing of the co(plaint, the court &hall i&&ue an order reAuiring the conflicting clai(ant& to interplead :ith one another* !f the intere&t& of ?u&tice &o reAuire, the court (ay direct in &uch order that the &u+?ect (atter +e paid or delivered to the court* So, the sheriff now serves on # and C the summons. %ogether with the summon is that order of the court directing # and C to interplead with one other. So, # will file his answer. Q. (ho will be furnished copy of the answer of #' A. # will furnish / and C. Q. C will file his answer. (ho will be furnished with the copy of the answer of C' A. # and /. Q. Fo you now see why this is a special civil action' A. n ordinary civil action, do the defendants furnish each other copies of their answers' Ao. /ut here, the defendants furnish each other. (hy' /ecause they are the ones litigfating. So, insofar as # is concerned, the plaintiff against him is C. nsofar as C is concerned, # is the plaintiff against him. Q. 9ay a motion to dismiss the action for interplead be filed by # and C' Can # and C avail of $ule -7, before they file their answer' ,co* remember under $ule -7, the motion to dismiss can be filed only before the answer has been filed. %his question is answered by this Sec. = $ule 71. A. %e<tion ? Rule 75 Within the ti(e of filing an an&:er, each clai(ant (ay file a (otion to di&(i&& on the ground of i(propriety of the interpleader or on other appropriate ground& &pecified in Rule #7* The period to file the an&:er &hall +e tolled and if the (otion i& denied, the (ovant (ay file hi& an&:er :ithin the re(aining period, +ut &hall not +e le&& than five /5. day& in any event, rec1oned fro( notice of denial* Q. (hat do you notice with respect to the ground of a motion to dismiss an interpleader action and a motion to dismiss in an ordinary civil action' A. n an ordinary civil action, the impropriety of the action is not a ground for a motion to dismiss. Under $ule 71, it is. So, the grounds for a motion to dismiss under $ule 71 are more encompassing than the ground of a motion to dismiss under $ule -7. Sec. 8 $ule 71 covers that situation already mentioned earlier. %e<. C Rule 75 Each clai(ant &hall file hi& an&:er &etting forth hi& clai( :ithin fifteen /#5. day& fro( &ervice of the &u((on& upon hi(, &erving a copy thereof upon each other conflicting clai(ant& :ho (ay file their reply thereto a& provided +y the&e Rule&* !f any clai(ant fail& to plead :ithin the ti(e herein fiCed, the court (ay, on (otion, declare hi( in default and thereafter render ?udg(ent +arring hi( fro( any clai( in re&pect to the &u+?ect (atter* The partie& in an interpleader action (ay file counterclai(&, cro&&3clai(&, third3party co(plaint& and re&pon&ive pleading& thereto, a& provided +y the&e Rule&* #fter # and C have been summoned, they will file their answer serving the plaintiff / and other defendants of the copy of the answer. n the answer of # and C, each will assert his right to the rental in this e+ample. Ee will give his reasons why the rental should be paid to him.

Q. 9ay any of them # and C file also a counterclaim, a cross<claim' A. Hes. %he parties in an interpleader action may file counterclaim, cross<claims, third<party complaints and responsive pleadings thereto as provided by these $ules. So, there is nothing special about this, e+cept with this provision where they have to furnish each other with copies of their pleadings. Q. (hat now is the disposition of the court with respect to these cases' A. #fter the pleadings of the conflicting claimants have been filed and pre<trial have been conducted in accordance with the rules, the court shall proceed to determine their respective rights and ad)udicate their counterclaims. t means to say following the pre<trial, trial proper will now proceed. #fter the court has conducted the pre<trial and received the evidence, the court will now determine who between # and C is entitled to this rental. #nd of course, will ad)udicate the counterclaims. %his is how $ule 71 wor3s. RENE NOTE%K !NTERP EADER -. an original action 1. presupposes that plaintiff has no interest in the sub)ect matter of the action or has interest therein in whole or in part which is not disputed by the other parties !NTER-ENT!ON -. ancillary action 1. proper in any of the four situations: persons having ,a. legal interest in the matter of litigation, or ,b. success of either of the parties, or ,c. an interest against both, or ,d. is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an offer thereof, ,$ule -6, Sec. -. 2. defendants are original parties to the pending suits

2. defendants are being sued precisely to interplead them Rule 76K De<laratory Relie:s and %i3ilar Re3edies

Q. (hat is the sub)ect matter of a declaratory relief' A. # person may be interested in a law, ,he may be affected by a law., he may be affected by an instrument. Ee may want to 3now what his rights are or what his obligations are, under a written instrument or a law. Q. Can you now bring an action in court to determine what his rights are, what his obligations are under the law or under a written document' A. EIa31le: # and / entered into an agreement. %here are certain provisions here, which confer on # certain rights and imposes him certain obligations. %here are also provisions here, which impose on / certain obligations and also certain rights. /ut in the case of #, these provisions are vague, he cannot quite comprehend it. #nd he ,#. fears that there may be a litigation arising out of it. Q. Can he now file an action in court against / for the purpose only of obtaining a declaration from the court on what his rights are, on what his obligations are, on what the rights of / are, or there is a law or ordinance, say regulating sale of liquor, # is a liquor distributor, this law affects him so he wants to 3now what his rights are, what his obligations are under this law, can he now file an action against the authorities to determine what his rights are or his obligations are under this ordinance' A. Hes. %hat is the concept of a declaratory relief. %a3e note that a court is supposed to determine actual controversies. #s a rule, a court is not required to give advisory opinions. t cannot settle abstract matters. t settles only actual conflicts. /ut under the law on declaratory relief, the court is actually called upon to render an opinion in a case involving these documents agreed upon. &f course, that can be done only before there has been a breach of the written document. Q. (hat is the situation contemplated by $ule 72' A. # person whose interest thereunder is a deed, a will, a contract or any other written instrument under a law, an ordinance, e+ecutive order, his rights under this law or instruments are affected. %he provisions of the written instrument or the law may be vague giving rise to uncertainties. So, the possibility of a suit arising out of this vagueness of this instrument or this doubtful character, the instrument, because if you will not determine this, there will be a suit that will arise.

Q. So, what is the idea behind the suit now that the party in this written instrument may file' A. %he idea here is to secure from the court a declaration as to the validity of the instrument or of the law. So, in the case then of the declaratory relief, the idea of the party filing the case is to 3now before there is a breach of the law on the agreement or written instrument, what his rights are, what his obligations are, under the contract or under the written agreement or under the instrument or under the law. So, in other words, he wants to 3now in advance what his rights are. So he goes to the court and in effect to as3 for an opinion. (e said that the court, does not as a matter of course render an opinion on abstract matters or hypothetical cases. /ut this is a sort of an e+ception to this. %hat is why, under this law the court may or may not agree to entertain an action for declaratory relief. t is being as3 merely to interpret an instrument or a law or it may be as3ed only to declare what would be the proper construction or interpretation of the law or of the written instrument. %here are however, &uit& that (ay +e +rought under the provi&ion& of the&e rule& on declaratory relief, :hich the court& cannot decline to entertain. %hese are the following actions: -. an action to quite title to a property or to remove a cloud over a property! 1. an action for the reformation of an instrument! 2. an action for consolidation of ownership where the sub)ect matter of the suit involves a contract of sale with right to repurchase. %hese three ,2. actions mentioned, when brought under the provisions on Feclaratory $eliefs cannot be dismissed by the court. t must have to entertain. /ut other cases of declaratory relief may be denied due course by the court. <or thi& declaratory relief rule& to apply, :hat (u&t +e e&ta+li&hed i& the concurrence of all the&e circu(&tance& : -. %here is an instrument! there is a will! there is a written contract or there is law 1. %his written instrument or this law affects the right of a person! 2. # person wants this law or this instrument to be interpreted, to be given a construction! =. #t the time the suit is brought, there must be a threatened suit that may arise out of it! and 8. %his controversy is )ustifiable. EIa31leK ,how this rule wor3s. Eere is a contract entered into between # and /. Let us assume that in our contract, that # underta3es to deliver supplies to /. # was supposed to load this supplies on a ship belonging to # for delivery to /. %his contract calls for a ten ,->. year period. &n the 6th year of the period, # #ssigns his rights under this contract to C. C now is the transferee. Pursuant to this contract of # and C now says to /, I/ beginning this ->th year, will now be the one to supply you the materials which # under the contract supposed to deliver to you.J Q. s / bound by this contract' A. Bor instance, #, C now delivers to / what # was supposed to deliver, and / refuses, may he ,/. be held liable' Q. (hat is the remedy here' A. / here may file an action for declaratory relief against C and #. Q. (hat will be the prayer now of / here' A. Ee will now pray that the court interpret this contract involved here and find out what his rights are, what his obligations are under this contract of C and #. Foes this contract bind him or it does not bind him' So, before there is any breach by # and / or C on this contract, then / can go to the court to declare what his rights are, what his obligations are, under this contract. EIa31leK Hou will notice that this case here illustrates that first part of the rule where a party filing the case is interested under a contract. %he other sub)ect matter of a rule on declaratory relief, is a law, an ordinance or an e+ecutive order which affects the rights of a person. %he municipality of G for instance which passed an ordinance on ta+es, on business establishments selling liquor. Eere is H, who is a license dealer of liquor. %his law, affects him, one way or the other. Ee doesn"t 3now what his

rights are, now he is supposed to pay, let"s say, ta+es which are much higher than the amount he is presently paying. /ut he is in doubt whether this is applicable to him or not applicable to him because of the vagueness of the law. Q. (hat is he allowed to do before there is any breach of this law by him' A. Ee can file an action against the municipality of G for declaration of whether this law is valid or not. %his is his main purpose. %o find out whether he is liable under this or he is not liable. %his is the sole purpose. Q. (ho will be the parties against whom, in our e+ample, #, which affected by that law or contract or ordinance' (ho will be the defendants' A. %he law says, Iall those persons whose rights are affected by this instrument must have to be made parties. #nd those who are not made parties are not affected by whatever )udgment may be rendered in a case. #lthough there is a decision cited in the boo3 of 9oran to the effect that when a necessary party is not impleaded, then a declaratory relief petition may be filed. (hy' /ecause the party who is necessary can always later on question an instrument or the law in a separate proceeding and so this declaratory relief will not put an end. Let us now assume that the petition for declaratory relief is filed. %he court refuses to give it due course. @round for instance, whatever )udgment the court may render will not put an end to the uncertainty that brought about the controversy. So, it will be useless. So, the court can decline. &n the other hand, the court may opt to consider it so it will hear the case. t is as if it were an ordinary civil case. Q. (hat will be the )udgment' A. t will simply be a declaration of whatever or not this law is valid or not. t will simply declare what rights of # has under the contract. (hat obligations he has. %hat is allZ Q. s there anything in the )udgment that can be e+ecuted' A. Ao. (hy' /ecause this is merely declaratory. t does not resolve an actual controversy. t merely declares, Ihere are the rights, here are the obligations.J t cannot be enforced by e+ecution because there is nothing to enforce. %he law says, Iif the petition was entertained by the court but while the case is pending in court, there is a violation of the agreement, or there is a violation of the law, there is a breach. Q. Can the petition for declaratory relief be maintained' A. Ao more. Let"s assume in this e+ample of # filing the action against the 9unicipality to contest the validity of the ta+ ordinance. (hen the case was pending, plaintiff # paid the ta+es. Q. Can this declaratory relief be continued' A. Ao more. t can no longer be continued. Q. (hat will happen then' A. %he court will now treat this as an ordinary civil action. So, it will now try the case and render a )udgment which can be enforced. So, in our e+ample here, if ta+payer paid the ta+es while the case is pending, there is already a breach of the law sought to be clarified. So, the court can no longer simply declare what are the rights and obligations. %he court will now resolve with finality the rights of the plaintiff and his obligations. #nd the )udgment there can be enforced by e+ecution. /ut in a case of validity or invalidity, there is nothing that it can be enforced. /ecause it is merely a statement, Ithis is your right, this is your obligation, etcVJ So, this in essence is the concept of Feclaratory $elief. Let"s go bac3 to the cases mentioned which can be filed under this provisionV on rules on declaratory relief namely: -. an action to quite title to property or to remove a cloud on a property! or 1. an action for reformation of an instrument! or 2. an action for consolidation of ownership. %hese cases cannot be declined to be entertained by the court. t must have to decide those cases. Since the sub)ect of the petition for declaratory relief is a written instrument or a law or an ordinance. Q. Can there be an action for declaratory relief to declare that a certain person is or is not a Bilipino citi*en' A. Ao. (hy' /ecause an action of this nature is not based on any document, it is not based on any written agreement.

n one case, in -6=- when war was about to brea3, G went to the office of the municipal treasurer of his town and registered himself as a Chinese citi*en. #fter the war, he now instituted an action for declaratory relief against the government. Q. (hat was his purpose here' A. %o serve a declaration that he is a Bilipino. n his petition he alleged that because of his fear, he registered himself as a Chinese citi*en. Aevertheless, his having registered himself as a Chinese notwithstanding, he always considered himself as a Bilipino. So that he now wants that he be declared a Bilipino citi*en. %he petition was dismissed outrightly. Q. Could the petition for declaratory relief be validly filed to secure a declaration that a person is a Bilipino citi*en' A. Birst, there is a written instrument, which is the basis of this petition. %he documents, which is the basis of this petition. %he documents, which he signed when he registered himself as a Bilipino does not constitute a written agreement. (hy' /ecause that was a unilateral act on his part. Ao one is interested in that document which he e+ecuted e+cept himself. So, there can possibly be no question of doubt arising from that unilateral act. n one case, the suit was filed by # against /. the )udgment was rendered against /. / now filed an action for declaratory relief based on this )udgment. n other words, he wanted to find out what his rights are under that )udgment. Q. s the remedy of a declaratory relief petition, proper in this case' A. Ao. (hy not' Birst, there are other remedies available to # to find out what his rights are. Bor instance, he could have filed a motion for clarificatory )udgment. f he was in doubt as to what his rights are, he could have filed a motion in court to clarify the )udgment. %here is another remedy. Ee could have appealed from the )udgment. n other words, thi& petition for declaratory relief i& availa+le only :hen there i& no other availa+le re(edy again&t a :ritten in&tru(ent or again&t a la:. So, when there are still available remedies, this cannot be resorted to. /ut of course, there is one compelling reason why this petition was dismissed and that is the rule on res )udicata. %hat has been already resolved with finality. t cannot be sub)ect of another litigation. RENE NOTE%K Requisites :or De<laratory Relie: -. )usticiable controversy 1. adverse claim between real parties in interest 2. sub)ect matter is a written instrument or a statute =. relief sought is merely a determination of the rights and duties 8. there must be no breach or violation of instrument or statute 7. no other available or sufficient remedy "RK Feclaratory relief is available /CB&$C there is actual breach or violation of an instrument or statute. EI<e1tionsK, declaratory relief (ay &till +e availed even if there i& +reach or violation !< : -. it concerns future application of the instrument or law 4@ome* vs. Palomar ,18 SC$# ;1:.5 or 1. not ob)ected to by the adverse party and the court has rendered )udgment after full blown trial 49atalin Coconut Producers ,-=2 SC$# -.5 Rule 7CK Certiorari# Pro;i/ition and Manda3us %here are two ,1. types of certiorari. &ne, as an appealed remedy from a final )udgment or order of for instance, the $%C <<<<<<<<<<<<<<<<<<<<<< )udgment and there is an appeal therefrom on a question of law, the remedy is certiorari under $ule =8, not a certiorari under $ule 78. %he )udgments of the Sandiganbayan may be appealed to the SC. %he appeal is by certiorari under $ule =8. %he )udgment of the C# may be appealed to the SC. %he remedy is certiorari under $ule =8. So, it is in this sense that in this ,$ule =8. certiorari is not the certiorari mentioned in $ule 78 because $ule 78 does not contemplate an appeal. %o better have an idea of what $ule 78 covers we may have this situation. EIa31leK # sued / in the 9%C for nullity of marriage. / here filed a motion to dismiss on the ground of lac3 of )urisdiction. %he motion is denied. Ee then said, Ao, the 9%C has )urisdiction.J

Q. Can you appeal if you were / from this order denying your motion to dismiss' A. Loo3 the order of dismissal is merely interlocutory. Lou cannot appeal fro( an interlocutory order. %his is clear in Sec. - ,c. of $ule =-. /ut definitely, the order of denial is wrong. So, if you do not correct this error, and you are /, you will go to a process of getting this case heard and decided by the 9%C. Hou could )ust imagine the waste of time, money and effort if the proceedings will continue until terminated. (hy' #ny )udgment rendered by the 9%C here will be void. Q. (hat is the remedy here if you cannot appeal' A. Under $ule 78, / may question the order denying the motion to dismiss. %he remedy could be a petition for certiorari. RENE NOTE%K X n a petition for certiorari, the court may order dismissal of the complaint because it is part of the incidental relief ,Aewswee3 vs. #C. Requisites o: CertiorariK -. there must be a controversy 1. the respondent is e+ercising )udicial or quasi<)udicial functions 2. the respondents acted without or in e+cess of its )urisdiction or acted with grave abuse of discretion =. there must be no other plain, speedy and adequate remedy Requisites o: Pro;i/itionK -. there must be a controversy 1. the respondent is e+ercising )udicial or quasi<)udicial or ministerial functions 2. the respondents acted without or in e+cess of its )urisdiction or acted with grave abuse of discretion =. there must be no other plain, speedy and adequate remedy Requisites o: Manda3usK -. there must be a clear legal right or duty 1. the act to be performed must be practical P within the powers of the respondent to perform such that if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated 2. respondent must be e+ercising a ministerial duty P a duty which is absolute and imperative and involves merely its e+ecution =. duty or act to be performed must be e+isting P correlative right will be denied if not performed by the respondents 8. no plain, speedy and adequate remedy in the ordinary course of law X # :rit of certiorari can never be issued by an $%C against an administrative agency because an administrative agency when e+ercising quasi<)udicial functions is considered as of the same ran3 as the $%C. @o:ever, a writ of prohibition may be issued by the $%C against administrative agencies only when what is sought to be prohibited is a ministerial function but not quasi<)udicial function. X %he )urisdiction of the Sandiganbayan over certiorari proceedings is only in aid of its appellate )urisdiction. "rounds :or Dis3issal o: PetitionK -. patently without merit 1. prosecuted manifestly for delay 2. questions raised are too unsubstantial to warrant further proceedings X #s a "ENERA R& E, a (otion for recon&ideration is an essential precondition for the filing of the petition for certiorari as a form of a plain, speedy, and adequate remedy. ts purpose is to give the court a quo the opportunity to correct itself. E+CEPT: -. if the assailed )udgmentOorder is a patent nullity 1. when there is e+treme urgency 2. if the issue has been raised and promptly passed upon by the court =. if the issue is purely a question<of<law 8. if for public purpose 7.if suggested by the court a quo "ENERA R& EK f after )udgment the petition for certiorari is availed of when appeal is plain, speedy and adequate remedy then the petition must fail for certiorari may not be resorted to as a substitute for appeal, in such a case appeal is deemed abandoned.

E+CEPT!ONK f after )udgment an appeal has been perfected, a petition for certiorari relating to certain incidents therein may prosper where the appeal does not appear to be the plain, speedy and adequate remedy. Eence, in this light, appeal and certiorari are remedies that does not e+clude each other. ,Lansang vs. C#, -;= SC$# SC$# 12>. X 9ere filing of petition for certiorari under this rule will not stay e+ecution of )udgment. Preliminary in)unction must be sought. (urpose of t-e 6rit. CERT!ORAR! X ntended as a corrective remedy X#nnul and modify a proceeding Fiscretionary act C+ercising )udicial and quasi<)udicial function PRO'!B!T!ON Prevent the commission or carrying out of an act Fiscretionary and ministerial act ?udicialOor non<)udicial function MANDAM&% ntended to compel performance of an act desired 9inisterial act ?udicial andOor non< )udicial function

Act soug-t to "e controlled. 5it- respect t-e respondent.

N !f a (otion for recon&ideration or ne: trial i& filed the period &hall not only +e interrupted +ut another 76 day& &hall +e given to the petitioner* ,SC #dmin. Cir. >>1<>2. Rule 77K Quo )arranto Quo )arranto P # proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or e+ercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said e+ercise of position, office or franchise * Nuo :arranto may also be used when an association acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. Q&O )ARRANTO Fesigned to try the right or title to the office, the right to the office itself is disputed Quo )arranto in Ele<toral Pro<eedin0 < %o contest the right of an electoral public officer to hold public office. < an electoral proceeding under the &mnibus Clections Code for the e+clusive purpose of impugning the election of a public officer on the ground of ineligibility or disqualification to hold the office < petition must be filed within -> days from the proclamation of the candidate < may be filed by any registered candidate for the same office and, who, even if the petition prospers, would not be entitled for that office. Rule 74K EI1ro1riation ; All propertie& (ay +e eCpropriated eI<e1tK -. 9oney 1. Choses in action M When i& eCpropriation proper; -. (hen the owner refuses to sell 1. (hen he agrees to sell but an agreement as to price cannot be reached MANDAM&% #pplicable only in cases where the right to the office is A&% in dispute Quo )arranto in Ele<toral Pro<eedin0 < prerogative writ by wOc the govt. can call upon any person to show by what title he holds a public office or e+ercises a public franchise < three grounds: usurpation, forfeiture, or illegal association < presupposes that the respondent is already actually holding office and action must be commenced within one year from cause of ouster or right of petitioner to hold office arose < the petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds.

NPur1ose o: Preli3inary De1osit under %e<. 5 -. provide damages if court finds plaintiff has no right to e+propriate 1. advance payment for )ust compensation X &nly an #AS(C$ is allowed under Sec. 2 $ule 7:, no other responsive pleadings are allowed N De<laration o: De:ault < %he defendant cannot be declared in default. Bailure to file an answer would result to the court"s )udgment on the right to e+propriate without pre)udice to the right to present evidence on )ust compensation. N );en is Title -ested in EI1ro1riationK < if per&onal property, upon payment of )ust compensation ,Sec. ->. < if real property, upon registration ,Sec. -2. %TA"E% !N E+PROR!AT!ON -. Fetermination of the authority of the plaintiff to e+ercise the power of eminent domain and the propriety of the e+ercise in the conte+t of the facts involved, and 1. Fetermination of ?US% C&9PCAS#% &A. X );en 3ay 1lainti:: enter into 1ossession o: 1ro1erty' -. Upon filing of complaint, serving notice to defendant and after depositing of assessed value of property for ta+ation purposes with authori*ed government depository ,Section 1. 1. Upon payment or tender of compensation fi+ed by the )udgment and payment of the costs by plaintiff ,Section ->. Rule 7DK Fore<losure o: Real Estate Mort0a0e NE::e<t in t;e En<u3/ran<er is not !31leaded a. his equity or right of redemption is not affected or barred by the )udgment of the court ,Sunlife nsurance vs. Fie*. b. his right is not affected because he is merely a necessary party not an indispensable party c. the remedy of the senior encumbrancer is to file an AFCPCAFCA% proceeding to foreclose the right to redeem by requiring the )unior encumbrancer to pay the amount stated in the order of e+ecution or to redeem the property in a specified time XRe3edy o: Mort0a0e a0ainst t;e Buyer o: t;e Mort0a0e Pro1ertyK < 9ortgagees can substitute or implead the buyer. ,Sec. -6 $ule 2. Eowever, thi& rule &hall not apply if: a. the property is covered by the %orrens System! b. buyer bought the property in good faith < %o prevent this, the mortgagee must annotate a notice of li& penden& in the certificate of title so that subsequent buyer,s. have notice. X !nstan<es w;ere Court <annot render De:i<ien<y *ud03ent -. $ecto law 1. Aon<resident mortgagor unless there is attachment 2. Sec. : $ule ;7 when mortgagor dies, the mortgagee must file his claim with the probate court =. %hird person owned the property mortgaged but not solidarily liable with the debtor *&D!C!A FOREC O%&RE $equires court intervention %here is only an equity of redemption #lternative remedy to personal action for the amount due to satisfy mortgage debt EQ&!T$ OF REDEMPT!ON < right of the defendant mortgagor to e+tinguish the mortgage and retain ownership of the property by paying the debt wOin 6><-1> days after the entry of the )udgment or even after the foreclosure sale but prior to confirmation E+TRA*&D!C!A FOREC O%&RE Ao court intervention necessary $ight of redemption e+ists Proper only when provided for in the contract R!"'T OF REDEMPT!ON < right of the debtor, his successor in interest or any )udicial creditor or )udgment creditor of said debtor or any person having alien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property wOin one year from the

< governed by $ule 7; *&D"MENT !f actual partition of property i& (ade

registration of the Sheriff"s certificate of foreclosure sale < governed by Secs. 16<2- of $ule 26 CONTENT% OF *&D"MENT %he )udgment shall state definitely: ,-. by metes and bounds and adequate description, ,1. the particular portion of the estate assigned to each party %he )udgment shall state: -. the fact of such payment, and 1. the assignment of the real estate to the party ma3ing the payment %he )udgment shall state: -. the name of the purchaser,s., and 1. a definite description of the parcels of the real estate sold to each purchaser EFFECT OF *&D"MENT %o vest in each party to the act, in severally the portion of the estate assigned to him. %o vest in the party ma3ing the payment the whole of the real estate free from any interest on the part of the other parties to the action %o vest the real estate in the purchaser,s. ma3ing the payment,s., free from the claims of the parties to the action.

!f the :hole property i& a&&igned to one of the partie& upon hi& paying to the other& the &u( or &u(& ordered +y the court !f the property i& &old and the &ale i& confir(ed +y the court

Two F58 !ssues in an A<tion :or Petition -. (hether or not a co<ownership e+ists 1. Eow to actually partition the property X %he appoint(ent of Co((i&&ioner& i& (andatory unless there is an e+tra<)udicial partition between the parties. Rule 4BK For<i/le Entry and &nlaw:ul Detainer T;ree F68 9inds o: A<tion :or Re<overy o: Possession ACC!ON !NTERD!CTA Xsummary action for the recovery of physical possession where the dispossession has not lasted for more than one year. Xe)ectment proceeding under $ule :>, either forcible entry or unlawful detainer X#ll cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the 9%C. ACC!ON P&B !C!ANA Xa plenary action for the recovery of the real right of possession has lasted for more than one year. ACC!ON RE!ND!-!CATOR!A Xan action for the recovery of ownership wOc necessarily includes the recovery of possession.

X$%C has )urisdiction if the value of the property e+ceeds P1>,>>> outside 9etro 9anila! P8>,>>> within 9etro 9anila. X9%C has )urisdiction if the value of the property does not e+ceed P1>,>>> P outside 9etro 9anila! P8>,>>> within 9etro 9anila

X$%C has )urisdiction if the value of the property e+ceeds P1>,>>> outside 9etro 9anila! P8>,>>> within 9etro 9anila, X9%C has )urisdiction if the value of the property does not e+ceed P1>,>>> P outside 9etro 9anila! P8>,>>> within 9etro 9anila

FORC!B E ENTR$ Xpossession of the land by the defendant is unlawful from the beginning as he acquires possession by Borce, ntimidation, Strategy, %hreat or Stealth ,B S%S. Xno previous demand for the defendant to vacate the premises is necessary Xthe plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant Xthe - year period is generally counted from the date of actual entry on the land

&N A)F& DETA!NER Xpossession is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract wO the plaintiff Xdemand is )urisdictional if the ground is: -. non<payment of rentals, or 1. failure to comply with lease of contract Xthe plaintiff need not have been in prior physical possession Xperiod is counted from the date of last demand or last letter of demand

Tenor o: De3andK a. Pay AND Dacate! or b. Comply with the condition of the lease AND Dacate X*ud03ent on E=e<t3ent Pro<eedin0 are !33ediately EIe<utory &nless t;e De:endantK ,-. perfects his appeal, ,1. files sufficient superseades bond to pay the rents, damages and costs occurring down to the time of )udgment appealed from! and ,2. deposits with the appellate court the amount of rent due from time to time under the contract or in the absence of a contract, the reasonable value of the use and occupation of the premises on or before the ->th day of each succeeding month or period. X Eowever the RTC (ay i&&ue a :rit of preli(inary (andatory in?unction to re&tore plaintiff in po&&e&&ion if the court i& &ati&fied that: -. defendant"s appeal is frivolous or dilatory, or 1. appeal of plaintiff is prima facie meritorious, upon motion of plaintiff within -> days from perfection of appeal. < f there is no formal contract between parties! there can still be unlawful detainer because e)ectment considers i(plied contract&* Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner: ,Peran vs. CB of Sorsogon. X%he doctrine of tolerance applies only if possession is lawful from the start. n short said doctrines applies only to unlawful detainer cases and not to forcible entry because: -. the violation of the right in forcible entry authori*es speedy redress! 1. if a forcible entry is allowed only after a number of years then it may well be that no action for forcible entry can really prescribe. ,9uno* vs. C#, 1-= SC$# 1-7. XQuestions to /e resolved in an a<tion :or :or<i/le entry are: First, who had actual possession over the piece of real property' %e<ond, was the possessor ousted therefrom within one year from the filing of the complaint by force, threat, strategy or stealth' T;ird, does the plaintiff as3 the restoration of possession' ,Fi*on vs. Concina. M The court can a:ard da(age& in e?ect(ent ca&e& provided the da(age& refer only to: a. the fair and reasonable value of the use and en)oyment of the property or the rent arising from the loss of possession! b. arrears! c. liquidated damages since they are already part of the contract Rule 41K CONTEMPT D!RECT CONTEMPT Xsummary in nature @$&UAFS: a. misbehavior in the presence of or near a court as to obstruct or interrupt the proceedings b. disrespect towards the court c. &ffensive personalities towards others. d. $efusal to be shown or to answer as witness or to subscribe an affidavit or deposition. !ND!RECT CONTEMPT Punished after being charged and hearing @$&UAFS: a. misbehavior of an officer of a court in the performance of his official duties or in his official transactions. b. Fisobedience of or resistance to a lawful writ, process, order, or )udgment. Unauthori*ed intrusion to any real property after being e)ected! c. #ny abuse or any unlawful interference wO the proceedings not constituting direct contempt d. #ny improper conduct tending to degrade the administration of )ustice. e. #ssuming to be an attorney or an officer of the court wOo authority. f. failure to obey a subpoena g. $escue, or attempted rescue, of a person or property in the custody of an officer. f committed against: a. $%C P fine not e+ceeding P2>,>>> or imprisonment not e+ceeding 7 months or both.

f committed against: a. $%C P fine not e+ceeding P1,>>> or imprisonment not e+ceeding ,->. days or both

b. 9%C P fine not e+ceeding P1>> or imprisonment not e+ceeding one ,-. day, or both.

b. 9%C P fine not e+ceeding P8,>>> or imprisonment not e+ceeding ,-. month or both

XRe3edies to C;allen0e Conte31t *ud03entsK Dire<t Conte31t < %he person ad)udged in direct contempt may avail himself of the remedies of certiorari or prohibition. %he e+ecution of the )udgment shall be suspended pending resolution of the petition, provided such person files a bond and conditioned that he will abide by and perform the )udgment should the petition be decided against him. !ndire<t Conte31t , %he person ad)udged for indirect contempt may appeal such )udgment or final order to the proper court as in criminal cases. %he e+ecution of the )udgment shall A&% be suspended until a bond is filed by the person ad)udged in contempt. <%he )udgment against a person ad)udged to be in contempt is immediately e+ecutory and can be stopped only by filing a bond.