Ateneo 2007 Civil Procedure

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ATENEO CENTRAL BAR OPERATIONS 2007
Remedial Law
SUMMER REVIEWER

Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.
Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan

CIVIL PROCEDURE

RULE 1
GENERAL PROVISIONS

Section 1. Title of the Rules

The Rules of Court are not penal statutes. They
cannot be given retroactive effect. They can,
however, be made applicable to cases pending at the
time of their passage and therefore are retroactive in
that sense.

Under the 1987 Constitution, the rule-making power
of the Supreme Court has the following limitations:

1. It must provide a simplified and inexpensive
procedure for the speedy disposition of
cases;
2. Uniform for all courts of the same grade; and
3. Shall not diminish, increase or modify
substantive rights (Art: VIII Section 5[5]).

Section 2. In what courts applicable

Section 3. Cases governed

ACTION CLAIM
An ordinary suit in a
court of justice.
A right possessed by one
against another.
One party prosecutes
another for the
enforcement or
protection of a right or
the prevention or redress
of a wrong.
The moment said claim is
filed before a court, the
claim is converted into an
action or suit.

APPLICABILITY:

1. Civil Action one by which a party sues another
for the enforcement or protection of a right or the
prevention or redress of a wrong.
2. Criminal Action one by which the Stake
prosecutes a person for an act or omission
punishable by law.
3. Special Proceedings remedy by which a party
seeks to establish a status, a right, or a particular
fact.

CLASSIFICATION OF ACTIONS

(A) As to nature
ORDINARY CIVIL
ACTION
SPECIAL CIVIL ACTION
Governed by ordinary
rules.
Also governed by ordinary
rules but SUBJECT to
specific rules prescribed
(Rules 62 to 71).
Formal demand of ones
legal rights in a court of
justice in the manner
prescribed by the court
for by the law.
Special features not found
in ordinary civil actions.

(B) As to object
ACTION IN
REM
ACTION IN
PERSONAM
ACTION QUASI
IN REM
Direct against
the thing itself.
Directed against
particular
persona
Directed against
particular
persons.
Jurisdiction over
the person of
the defendant is
NOT required.
Jurisdiction over
the person of
the defendant
IS required.
Jurisdiction over
the person of
the defendant is
NOT required
as long as
jurisdiction over
the res is
acquired.
A proceeding to
determine the
state or
condition of a
thing.
An action to
impose a
responsibility or
liability upon a
person directly.
A proceeding to
subject the
interest of a
named
defendant over
a particular
property to an
obligation or lien
burdening it.
Judgment is
binding on the
whole world.
Judgment is
binding only
upon parties
impleaded or
their
successors in
interest.
Judgment
binding upon
particular
persons.
Ex. Probate
proceeding;
cadastral
proceeding.
Ex. Action for
specific
performance;
action for
breach of
contract.
Ex. An action
for partition;
action to
foreclose real
estate
mortgage.

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The distinction is important in determining whether or
not jurisdiction over the persons of the defendant is
required.

(C) As to cause
REAL ACTION PERSONAL
ACTION
MIXED
ACTION
Ownership or
possession of
real property is
involved.
Personal
property is
sought to be
recovered or
where
damages for
breach of
contract are
sought.
Both real and
personal
properties are
involved.
Founded on
privity of real
estate.
Founded on
privity of
contract.
Founded on
both.
Filed in the
court where the
property or any
part thereof is
situated
Filed in the
court where the
plaintiff or any
of the
defendants
resides, at the
option of the
plaintiff
The rules on
venue of real
actions shall
govern.
Ex. Accion
reinvidicatoria
Ex. Action for a
sum of money.
Ex. Accion
publicana with
a claim for
damages

The distinction is significant in determining the venue
of an action.

(D)As to place of filing
LOCAL ACTION TRANSITORY ACTION
Must be brought in a
particular place
where the subject
property is located,
unless there is an
agreement to the
contrary (Section 4,
Rule 4).
Dependent on the place
where the party resides
regardless of where the
cause of action arose subjec
to Section 4, Rule 4.
Ex. Action to recover
real property.
Ex. Action to recover sum
of money

Section 4. In what cases not applicable

NOT APPLICABLE TO:
1. Election Cases;
2. Land registration/cadastral cases;
3. Naturalization;
4. Insolvency proceedings;
5. Other cases not provided in the Rules of Court.
The Rules of Court are applicable by analogy or in a
suppletory character and whenever practicable and
convenient.

Section 5. Commencement of action

A civil action is commencement by:

1. The FILING OF THE COMPLAINT (when an
additional defendant is impleaded in a later pleading,
the action is commenced with regard to him on the
date of the filing of such LATER PLEADING); and

Cabrera v. Tiano 8 SCRA 54 (1963)
Civil actions are deemed commenced from the
date of the filing and docketing of the complaint,
without taking into account the issuance and service
of summons

2. The PAYMENT OF DOCKET FEES (determined
not only in the amount of the claim but also by the
amount of damages).

NOTE: The amount of damages should be specified
not only in the body of pleading but also in the prayer.

The court may allow the payment of the deficient
docket fee within a reasonable period but not beyond
the applicable prescriptive or reglementary period.

An action can be commenced by filing the complaint
by registered mail. In which case, it is the date of
mailing that is considered as the date of filing and not
the date of the receipt thereof by the clerk of court.

Section 6. Construction

GENERAL RULE: Liberal construction

EXCEPTIONS:
1. reglementary periods;
2. rule on forum shopping.

RULE 2
CAUSE OF ACTION

Section 1. Ordinary Civil Actions, basis of

Section 2. Cause of action defined

CAUSE OF ACTION is the act or omission by
which a party violates the right of another.

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The essential requisite of a cause of action
1. LEGAL RIGHT of the plaintiff.
2. CORRELATIVE OBLIGATION of the
defendant to respect plaintiffs right; and
3. Act or omission of the defendant in
VIOLATION of the plaintiffs legal right.

RIGHT OF ACTION right of a person to bring and
prosecute action to obtain judgment.

The essential requisites of a right of action:
1. There must be a GOOD CAUSE;
2. Compliance with all the CONDITONS
PRECEDENT; and
3. Action, must be instituted by the
PROPER PARTY.

CAUSE OF ACTION RIGHT OF ACTION
Delict or wrongful act or
omission committed by
the defendant in violation
of the primary rights of
the plaintiff.
Remedial right or right to
relief granted by law to a
party to institute an action
against a person who has
committed a delict or
wrong against him.
The reason for the
action.
The remedy or means
afforded or the
consequent relief.
The formal statement of
the operative facts that
gives rise to remedial
right.
The remedial right given
to a person because of
the occurrence of the
alleged facts.
A matter of procedure
and depends on the
pleadings filed by the
parties.
A matter of right and
depends on substantive
law.
Not affected by
affirmative defenses
(fraud, prescription,
estoppel, etc.).
Affected by affirmative
defenses.

RELIEF REMEDY SUBJECT
MATTER
The redress,
protection,
award or
coercive
measure
which the
plaintiff prays
the court to
render in his
favor as
consequence
of the delict
committed by
the defendant.
The procedure
or appropriate
legal form of
relief of action
which may be
availed of by
the plaintiff as
the means to
obtain the
desired relief.
The thing
wrongful act,
contractor
property which is
directly involved
in the action,
concerning which
the wrong has
been done and
with respect to
which the
controversy has
arisen.

Section 3. One suit for a single cause of action

Section 4. Splitting a cause of action, effect of

SPLITTING OF CAUSE OF ACTION is the act of
dividing a single or indivisible cause of action into
several parts or claims and bringing several actions
thereon. It is NOT ALLOWED.

PURPOSE: To avoid multiplicity of suits and
unnecessary vexation and harassment of defendants.

Applies NOT only to complaints but also to
counterclaims and cross-claims.

Remedies against splitting a single cause of
action:

A. Motion to dismiss on the ground of:
1. Litis pendentia (Rule 16, Section 1 [e]); or
2. Res judicata (Rule 16, Section 1 [f]).

B. An answer alleging either as affirmative defense.
(Rule 16, Section 6)

GENERAL RULE: A contract embraces only one
cause of action even if it contains several
stipulations.

EXCEPTION: A contract to do several things at
several times is divisible, and judgment for a single
breach of a continuing contract is not a bar to a suit
for a subsequent breach. (e.g., promissory not
payable in several installments so long as there is no
acceleration clause)

Blossom & Co. v. Manila Gas Corp., 55 Phil.226
(1930)

DOCTRINE OF ANTICIPATORY BREACH

An UNQUALIFIED and POSITIVE REFUSAL to
perform a contract, though the performance thereof is
not yet due, may, if the renunciation goes into the
whole contract, be treated as a complete breach
which will entitle the injured party to bring his action
at once.

Section 5. Joinder of causes of action

Joinder of causes of action is purely permissive. The
plaintiff can always file separate actions for each
cause of action.

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REQUISITES FOR JOINDER OF CAUSES OF
ACTION:
1. The party joining the causes of action must
comply with the rules on joinder of parties.
2. The joinder shall not include special and
actions or actions governed by special rules.
3. Where the causes of action are between the
same parties but pertain to different venues
or jurisdiction is with the Regional Trial Court,
provided that:
a. One of the causes of action
falls within the jurisdiction of
the RTC; and
b. venue lies thereon.

4. Where the claims in the causes of action are
principally for recovery of money, the
aggregate amount claimed shall be the test
of jurisdiction. (Totality Rule)

NOTE: The following are the elements for a
joinder of parties (Section 5, Rule 3);
- A right to relief in respect to or arising out of the
same transaction or series of transaction and
- A common question of law

TOTALITY RULE UNDER BP129 [Section 33(1)]
Where there are several claims or causes of actions
between the same or different parties, embodied in
the same complaint, the amount of the demand shall
be the totality of the claims in all causes of action,
irrespective of whether the causes of action arose out
of the same or different transaction.

NOTE: We will follow the totality rule in BP 129
because it is elementary in statutory construction that
in case of conflict, substantive law prevails over
procedural laws.

SPLITTING OF A
CAUSE OF ACTION
JOINDER OF CAUSES
OF ACTION
There is a single cause
of action.
Contemplate several
causes of action.
PROHIBITED. It causes
multiplicity of suits and
double vexation on the
part of the defendant
ENCOURAGED. It
minimizes multiplicity of
suits and inconvenience
on the parties.

Section 6. Misjoinder of causes of action

Not a ground for dismissal of an action. A misjoined
case of action may be severed and proceeded with
separately.

There is no sanction against non-joinder of separate
causes of action since a plaintiff needs only a single
cause of action to maintain an action.

RULE 3
PARTIES TO CIVIL ACTIONS

Section 1. Who may be parties; plaintiff and
defendant

PARTIES TO A CIVIL ACTION
1. A natural person
2. A juridical person; or
3. An entity authorized by law.

PLAINTIFF one having an interest in the matter of
the action or in obtaining the relief demanded.

DEFENDANT - one claiming an interest in the
controversy or the subject thereof adverse to the
plaintiff.

The term defendant may include:
1. An unwilling plaintiff or one who should be joined
as plaintiff but refuses to give his consent
thereto (Section 10, Rule 3);
2. The original plaintiff becoming a defendant to
original defendants counterclaim; and
3. One necessary to a complete determination or
settlement of the questions involved therein:
Section 2. Parties in interest

REAL PARTY IN INTEREST the party who stands
to be benefited or injured by the judgment in the suit
or the party entitled to the avails of the suit.

INDISPENSABLE
PARTIES

NECESSARY PARTIES
Must be joined under any
and all conditions, their
presence being a sine
qua non for the exercise
of judicial power.
Should be joined
whenever possible, the
action can proceed even
in their absence.
No valid judgment if
indispensable party is not
joined.
The case may be
determined in court but
the judgment therein will
not resolve the entire
controversy if a
necessary party is not
joined.
They are those with such
an interest in the
They are those whose
presence is necessary to
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controversy that a final
would necessarily affect
their rights so that the
court cannot proceed
without their presence.
adjudicate the whole
controversy but whose
interests are so far
separable that a final
decree can be made in
their absence without
affecting them.

Tuason v. Bolanos 95 Phil 06 (1954)
Section 2, Rule 3 of the Rules of Court requires
that an action must be brought in the name but not
necessarily by the real party in interest. In fact, the
practice is for an attorney in fact to bring the action,
i.e., to file the complaint in the name of the plaintiff.

CLASSIFICATION OF PARTIES IN INTEREST:

1. Indispensable parties-those without whom
and final determination can be had of an
action (must be joined under all conditions).

2. Necessary (or proper) parties those who
are not indispensable but ought to be joined
as parties if complete relief is to be accorded
as to those already parties, of for a complete
determination or settlement of the claim
subject of the action (may or may not be
joined)

3. Representative parties those acting in
fiduciary capacity such as trustees, guardians,
executors, or administrators. The beneficiary
shall be included in the title of the case and
shall be deemed to be real part in interest.

4. Pro forma parties- those who are required to
be joined as co-parties in suits by or against
another party as may be provided by the
applicable substantive law or procedural rule
such as in the case of spouses under Section
4.

5. Quasi parties those in whose behalf a class
or representative suit is brought.

Section 3. Representative as parties

Section 4. Spouses as parties

Section 5. Minor or incompetent

Under the present rules, a suit may be brought by or
against a minor or incompetent but with the
assistance of his parents or his guardian. A person
NEED NOT be judicially declared incompetent, it
being sufficient that his incompetency be alleged in
the corresponding pleadings.

Section 6. Permissive joinder of parties

PERMISSIVE JOINDER - the rule on permissive
joinder of parties is that they can be joined in one
single complaint or may themselves maintain or be
sued in separate suits.

Requisites of permissive joinder of parties:
1. Right to relief arises out of the same
transaction or series of transactions;
2. There is a question of law or fact common to
all the plaintiffs or defendants; and
3. Such joinder is not otherwise prescribed by
the provisions of the rules on jurisdiction and
venue.

SERIES OF TRANSACTIONS transactions
connected with the same subject matter of the suit.

Section 7. Compulsory joinder of Indispensable
parties

Section 8. Necessary party

JOINT DEBTORS indispensable party in a suit
against him but necessary party in a suit against his
co-debtor.

Section 9. Non-joinder of necessary parties to be
pleaded

Duty of a pleader whenever a necessary party is
not joined or impleaded:
1. State the name of the necessary party, if
known; and
2. State why said necessary arty is omitted in
the pleading

Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the
omitted necessary party if jurisdiction over his person
may be obtained by ordering plaintiff to file an
amended complaint impleading the necessary party
therein as co-defendant.

NOTE: The failure to comply with the courts order to
include or join a necessary party without justifiable
cause shall be deemed a waiver of the claim against
such party.

Section 10. Unwilling co-plaintiff

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If the consent of any party who should be joined as
plaintiff can not be obtained, he may be made a
defendant and the reason therefore shall be stated in
the complaint.

Section 11. Misjoinder and non-joinder of parties

Neither misjoinder nor non-joinder of parties is a
ground for dismissal of the action

NOTE: Objections to defects in parties should be
made at the earliest opportunity, i.e., the moment
such defect becomes apparent, by a MOTION TO
STRIKE THE NAMES OF THE PARTIES impleaded.
Objections to misjoinder cannot be raised for the first
time on appeal.

The non joinder of an indispensable or a necessary
party is not by itself ipso facto a ground for the
dismissal of the action. The court should order the
joinder of such party and non compliance with the
said order would be a ground to the dismissal of the
action (Feria, 2001).

Section 12. Class suit

CLASS SUIT
An action where one or more may sue for the benefit
of all, implying that if the parties are numerous and it
is impracticable to bring them to court, one or more
may sue for their benefit.

NOTE: An action does not become a class suit
merely because it is designated as such in the
pleadings. Whether the suit is or is not a class suit
depends upon the attending facts.

REQUISITES OF A CLASS SUIT:
1. Subject matter of the controversy is one of
common or GENERAL INTEREST to many
persons;
2. The persons are so NUMEROUS that it is
impracticable to join them all as parties; and
3. Parties bringing the class suit are
SUFFICIENTLY NUMEROUS AND
REPRESENTATIVE of the class and can fully
protect the interests of all concerned;
4. The representative sues or defends for the
benefit of all.

NOTE: Any party in interest shall have the right to
intervene to protect his individual interest. (This is an
instance when a person may intervene as a matter of
right.)

CLASS SUIT PERMISSIVE JOINDER
OF PARTIES
There is one single
action pertaining to
numerous persons.
Community of interests.
There are multiple causes
of action separately
belonging to several
perons.

Section 13. Alternative Defendants

Where the plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any OR all
of them in the alternative, although a right to relief
against one may be inconsistent with a right to relief
against the other.

Section 14. Unknown identity or name of
defendant

REQUISITES:
1. There is a defendant
2. His identity or name is unknown;
3. Fictitious name may be used because of
ignorance of defendants true name an said
ignorance is alleged in the complaint;
4. Identifying description may be used; sued as
unknown owner, heir, devisee, or other
designation;
5. Amendment to the pleading when identify of true
name is discovered; and
6. Defendant is the defendant being sued, not a
mere additional defendant.

NOTE: Service of summons upon a defendant whose
identify is unknown may be made by publication in a
newspaper of general circulation in accordance with
Section 14of Rule 14. The action must however be
converted into an action in rem or quasi by attaching
the defendants property in the Philippines.

Section 15. Entity without juridical personality as
defendant

REQUISITES:
1. There are two or more persons not organized as
a juridical entity;
2. They enter into a transaction; and
3. A wrong or delict is committed against a third
person in the course of such transaction.

NOTE: Persons associated in an entity without
juridical personality may be sued under the name by
which they are generally or commonly known, but
they cannot sue under such name.

The service of summons may be effected upon all the
defendants by serving upon any of them, or upon the
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person in charge of the office or place of business
maintained under such name (Sec. 8, Rule 14).

INSTANCES WHERE SUBSTITUTION OF PARTIES
IS PROPER:

A.
Section 16. Death of party; duty of counsel
This provision applies where the claim is NOT
thereby extinguished as in cases involving property
and property rights such as:
1. Recovery of real and personal property against
the estate;
2. Enforcement of client on such properties and;
3. Recover for an injury to person or property by
reason of tort or delict committed by the
deceased.

In this case, the heirs will be substituted for the
deceased OR if no legal representative is named
then the court will order the opposing party to procure
the appointment of an executor or administrator for
the estate of the deceased.

In case of minor heirs, the court may appoint a guardian ad
litem for them.
The substitute defendant need not be summoned. The
ORDER OF SUBSTITUTION shall be served upon the
parties substituted for the court to acquire jurisdiction over
the substitute party.

B.
Section 17. Death or separation of a party who is
a public officer

REQUISITES:
1. Public officer is a PARTY TO AN ACTION in his
official capacity;
2. During the pendency of the action, he either
DIES, RESIGNS, OR OTHERWISE CEASES to
hold office;
3. It is satisfactorily shown to the court by any party,
within 30 days after the successor takes office,
the there is a SUBSTANTIAL NEED for
continuing or maintaining the action;
4. That the successor ADOPTS ORCONTINUES
OR THREATENS TO ADOPT OR CONTINUE
the action of his predecessor; and
5. The party or officer affected has been given
REASONABLE NOTICE of the application
therefore and accorded an opportunity to be
heard.

C.
Section 18. Incompetency or Incapacity

In case a party becomes incompetent or
incapacitated, the action survives and may be
continued by against the incompetent incapacitated
assisted by his legal guardian or guardian ad litem
who is his legal representative.

D.
Section 19. Transfer of Interest

NOTE: The transfer of interest that is obviously
referred to in this section is a transfer that occurs
during the pendency of the action. The transferor
would no longer be the real party in interest if the
transfer is made before the commencement of the
suit.

GENERAL RULE: The rule does not consider the
transferee an indispensable party. Hence, the action
may proceed without the need to implead him.

EXCEPTION: When the substitution by or joinder of
the transferee is ordered by court.

The case will be dismissed if the interest of plaintiff is
transferred to defendant UNLESS there are several
plaintiffs, in which case, the remaining plaintiffs can
processed with their own cause of action.

Section 20. Action on contractual money claims

REQUISITES
1. The action must primarily be for RECOVERY OF
MONEY, DEBT, OR INTEREST thereon;
2. The claim, subject of the action, AROSE FROM
CONTRACT, express or implied; and
3. Defendant dies BEFORE THE ENTRY OF
FINAL JUDGMENT in the court in which the
action was pending

NOTE: Under this section, the death of the defendant
will not result in the dismissal of the action. The
deceased shall be substituted by his legal
representatives in the manner provided for in Section
16 of Rule 3 and the action continues until the entry
of final judgment.

However, execution shall not issue in favor of the
winning party. It should be filed as a claim against the
estate of the decedent without need of proving the
claim.

Section 21. Indigent party

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Indigent one who has no money or property
sufficient and available for food, shelter, and basic
necessities. He need not be a pauper to entitle him to
litigate in forma pauperis

While the authority to litigate as an indigent party may
be granted upon an ex parte application and hearing,
it may be contested by the adverse party at any time
before judgment is rendered.

If one is authorized to litigate as an indigent, such
authority shall include:
1. An exemption from the payment of docket fees;
2. An exemption from the payment of transcript of
stenographic notes.

Section 22. Notice to the Solicitor General

RULE 4
VENUE OF ACTIONS

VENUE the place trial or geographical location in
which an action or proceeding should be brought.

VENUE JURISDICTION
Place where the action is
instituted.
Power of the court to
hear and decide a case.
Maybe waived Jurisdiction over the
subject matter over the
nature of the action is
conferred by law and
cannot be waived.
Procedural. Substantive.
May be changed by the
written agreement of the
parties.
Cannot be the subject of
the agreement of the
parties.

The rule on VENUE IS NOT APPLICABLE in
cases:
1. Where a specific rule or law provides otherwise
(i.e. an action for damages arising from libel); or
2. The parties have validly agreed in writing before
the filing of the action in the exclusive venue
thereof (Section 4).

REQUISITES FOR VENUE TO BE EXCLUSIVE:
1. A valid written agreement;
2. Executed by the parties before the filing of the
action; and
3. Exclusive nature of the venue.

Polytrade Corp. v. Banco 30 SCRA 187 (1969)
In 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 rules.

Examples of qualifying or restrictive words:
Only
Solely
Exclusively in this court

Section 1. Venue of real actions

The venue is the place where the real property or any
portion thereof is located.

If property is located at the boundaries of two places:
File case in either place at the option of the plaintiff.

If case involves two properties located in two different
places:
1. if the properties are the object of the same
transaction, file it in any of the two places;
2. If they are the subjects of two distinct
transactions, separate actions should be filed in
each place unless property joined.

Section 2. Venue of personal actions

Raymond v. Court of Appeals 166 SCRA 50 (1988)
RESIDENCE should be viewed or understood in
its popular sense, meaning the personal, actual, or
physical habitation of a person, actual residence or
place of abode.

VENUE OF PERSONAL ACTIONS:
1. Where the plaintiff or any of the principal
plaintiffs resides;
2. Were the defendant or any of the principal
defendants resides; or
3. In the case of a non-resident defendant, the
action may be brought in the place where he
may be found.
NOTE: ALL AT THE ELECTION OF THE
PLAINTIFF.

Means of waiving venue:
1. Failure to object via motion to dismiss;
2. Affirmative relief sought in the court where the
case is filed;
3. Voluntary submission to the court where the
case is filed; or
4. Laches.

Section 3. Venue of actions against non-residents

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1. NON-RESIDENT FOUND IN THE
PHILIPPINES-
a. for personal actions where the
plaintiff resides; and
b. for real actions where the property is
located.

2. NON-RESIDENT NOT FOUND IN THE
PHILIPPINES
An action may be filed only when the case
involves:
a. Personal status of plaintiff venue:
where plaintiff resides;
b. Any property of said defendant
located in the Philippines venue:
where the property or any portion
thereof is situated or found.

The Supreme Court has the power to order a change
of venue to prevent miscarriage of justice.

Dacoycoy v. IAC 195 SCRA 641 (1991)
The Court may not motu proprio dismiss a
complaint on the ground of improper venue. (). An
exception is provided in Section 4 of the Rule on
summary Procedure.

Section 4. When Rule not applicable

RULE 5
UNIFORM PROCEDURE IN TRIAL COURT

Section 1. Uniform Procedure

The procedure in the MTC shall be the dame as in
the RTC, except:
1. where a particular provision expressly or
impliedly applies only to either of said courts
or;
2. in civil cases governed by the Rule on
Summary Procedure

Section 2. Meaning of terms

RULES ON SUMMARY PROCEDURE
SUMMARY PROCEDURE IN CIVIL CASES

Filing of verified complaint
with the MTC

Court may dismiss the case
outright
Court may summon the
defendant

Within 10 days fromreceipt
of summons defendant
answers incorporating
compulsory counterclaims
or crossclaim& serves a
copy on plaintiff
If Defendant fails to answer
in 10 daysthe court motu
propio or on plaintiffs own
motion, may render
judgment based on facts
alleged in the complaint
without prejudice to RULE
9 Sec 3 (c)

Answer to counterclaimand
crossclaimwithin 10 days
Preliminary conference
within 30 days after last
answer is filed
If plaintiff fails to appear n
preliminary conference,
complaint may be dismissed.
Defendant entitle to decision
based on his counterclaim. All
crossclaimdismissed

Within 5 days after
conference, court issues
record of preliminary
conference

Within 10 days fromreceipt
of order submission by the
parties of affidavits and
position papers

If sole defendant fails to
appear, plaintiff entitled to
judgment based on
complaint and what is
proved therein
Rendition of judgment
within 30 days fromreceipt
of last affidavit or within 15
days after last clarificatory
paper

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PROHIBITED PLEADINGS / MOTIONS UNDER
THE RULE ON SUMMARY PROCEDURE
1. Motion to dismiss the complaint or to quash
the complaint or information except on the
ground of lack of jurisdiction over the subject
matter or failure to comply with prior
barangay conciliation (referral to the Lupon);
2. Motion for a bill of particulars;
3. Motion for a new trial or for reconsideration of
a judgment or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits, or any other paper;
6. Memorandum;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
8. Motion to declare defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third party complaints;
12. Interventions.

The filing of a prohibited pleading will not suspend
the period to file an answer or to appeal

Heirs of Olivas v. Flor 161 SCRA 393 (1988)
Although a motion to dismiss is a prohibited
pleading, its filing after the answer had already been
submitted does not constitute a pleading prohibited
by the summary rules. What the rules proscribe is a
motion to dismiss that would stop the running of the
period to file an answer and cause undue delay.

NOTE: While a motion to declare the defendant in
default is prohibited by the rules on summary
procedure, the plaintiff may nevertheless file a motion
to render judgment as may be warranted when the
defendant fails to file an answer.

The issuance of the pre-trial order is an important
part of the summary procedure because it is its
receipt by the parties that begins the ten0day period
to submit the affidavits and other evidence.

TRIAL PROCEDURE IN CIVIL CASES

No testimonial evidence is required nor cross
examination of witnesses allowed. All that is required
is that within (10) days from receipt by the parties of
the courts pre-trial order, they shall submit:
1. The affidavits of their witnesses; and
2. Other evidence on the factual issues set
forth in the pre-trial order, together with
their position papers setting forth the law
and the facts relied upon by them.

Judgments of inferior courts in cases governed by
summary procedure are applicable to the RTC.

The decision of the RTC (on appeal) in civil cases
under this rule, including ejectment cases, are
IMMEDIATELY EXECUTORY.

KATARUNGANG PAMBARANGAY LAW
(Title One, Book III, RA 7160)

No complaint petition, action, or proceeding involving
any matter within the authority of the lupon shall be
fired or instituted directly in court or any other
government office for adjudication UNLESS
1. There has been CONFRONTATION
BETWEEN THE PARTIES before the lupon
chairman or pangkat; and
2. That no conciliation or settlement has been
reached OR unless the settlement has been
repudiated by the parties thereto.

CASES NOT COVERED BY THE KATARUNGANG
PAMBARANGAY LAW (SUBSTANTIVE
EXCEPTIONS):
1. Where one party is the government or any
subdivision or instrumentality thereof;
2. Where one party is a public officer or
employee, and the disputer relates to the
performance of his official functions;
3. Offenses punishable by imprisonment
exceeding 1 year or a fine exceeding
P5,000.00;
4. Offenses where there is no private offended
party (i.e. genocide);
5. Where the dispute involves real properties
located indifferent cities or municipalities
UNLESS the parties thereto agree to submit
their differences to amicable settlement by an
appropriate lupon;
6. Disputes involving parties who actually reside
in barangays of different cities or
municipalities, EXCEPT:
a. where such barangay units adjoin each
other; and
b. the parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon;
7. Such other classes of disputes which the
President may determine in the interest of
justice;
8. The court may, at any time before trial, motu
proprio refer the case concerned to the lupon
for amicable settlement, non criminal cases
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not falling within the authority of the latter;
and
9. Where one of the parties is a juridical entity.

While the dispute is under mediation, conciliation, or
arbitration, the prescriptive periods for offenses and
cause of action under existing laws shall be
interrupted upon filing or the complaint with the
punong barangay. Such interruption shall not exceed
60 days from the time of the filing of the complaint
with the punong barangay.

THE PARTIES MAY GO DIRECTLY TO COURT IN
THE FOLLOWING INSTANCES (PROCEDURAL
EXCEPTIONS):
1. Where the accused is under police
CUSTODY or detention;
2. Where the person has otherwise been
deprived of personal liberty calling for
HABEAS CORPUS proceeding;
3. Where the ACTIONS are coupled with
provisional remedies such as preliminary
injunction, attachment, delivery of
personal property, and support pendente
lite;
4. Where the action may otherwise be
barred by the STATUTE OF
LIMITATIONS;
5. LABOR Disputes (Montaya v. Escayo
171 SCRA 442));
6. Any CLASS OF DISPUTE which the
President may determine in the interest
of justice or upon recommendation of the
secretary of Justice;
7. CARL disputes; and
8. Disputes involving the TRADITIONS of
indigenous cultural community;
9. Actions to ANNUL JUDGMENT upon a
compromise (Sanchez v. Tupac, 158
SCRA 459)

The parties may at any stage of the proceeding
AGREE IN WRITING to have the matter in dispute
DECIDED by ARBITRATION either the LUPONG
BARANGAT or PANGKAT. In such case arbitrational
hearings shall follow order of adjudicative trials.

The settlement and arbitration agreement may be
repudiated on the ground that consent is vitiated by
fraud, violence, or intimidation. Such repudiation shall
be sufficient basis for the issuance of the certification
for filing a complaint in court or any government office
for adjudication.

RULES ON VENUE UNDER THE KATARUNGAN
PAMBARANAGAY LAW

1. Disputes between residents of the same
barangay shall be brought for settlement before
lupon of said barangay;
2. Residents of different barangays within the same
city or municipality in the barangay where the
respondent or any of the respondents reside at
the election of the complainant;
3. Disputes involving real property or any interest
therein where real property or larger portion
thereof is situated;
4. Disputes arising at the WORKPLACE where the
contending parties are employed or at the
INSTITUTION where such parties are enrolled
for study in the barangay where such
workplace or institution located.

PROCEDURE IN REGIONAL TRIAL COURTS

RULE 6
KINDS OF PLEADINGS

Section 1. Pleadings defined

PLEADINGS the written statements of the
respective claims and defenses of the parties
submitted to the court for appropriated judgment.

NOTE: A motion to dismiss is not pleading.

PLEADING MOTION
The purpose is to
submit a claim or
defense for
appropriate
judgment.
The purpose is to apply for an
order not included in the
judgment.
May be initiatory Cannot be initiatory as they
are always made in a case
already filed in court.
Always filed before
judgment
May be filed even after
judgment.
Only 9 kinds of
pleading are allowed
by the rules
Many kinds of motion are
allowed.

NOTE: HOWEVER, there are motions that actually
seek judgment like a motion for judgment on
pleadings (Rule34) and motion for summary
judgment (Rule 35).

Section 2. Pleadings allowed

1. Complaint;
2. Counterclaim;
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TIFF (Uncom
3. Cross-claim;
4. Third-party Complaint;
5. Complaint-in-intervention;
6. Answer;
7. Reply;
8. Counter-counterclaim;
9. Counter-Cross claim.

Enumeration is not exclusive

Section 3. Complaint

COMPLAINT is the pleading alleging the plaintiffs
cause or causes of action. It should contain a concise
statement of the ultimate facts constituting the
plaintiffs cause of action, not evidently facts or legal
conclusions.

ULTIMATE FACTS essential facts constituting the
plaintiffs cause of action. A fact is essential if it
cannot be stricken out without leaving the statement
of the cause of action insufficient.

TEST OF SUFFICIENCY OF THE FACTS
ALLEGED IN THE COMPLAINT: Determine whether
upon the averment of facts, a valid judgment may be
properly rendered.

What are NOT ultimate facts:
1. Evidentiary or immaterial facts;
2. Legal conclusions, conclusions or inferences of
facts not stated, or incorrect inferences or
conclusions from facts stated;
3. The details of probative matter or particulars of
evidence, statements of law, inferences and
arguments;
4. An allegation that a contract is valid or void is a
mere conclusion of law.

Section 4. Answer

ANSWER the pleading where the defendant sets
forth his affirmative or negative defenses. It may
likewise be the response to a counterclaim on a cross
claim.

Section 5. Defenses

2 kinds of defenses that may be set forth in the
answer:

1. AFFIRMATIVE DEFENSES- allegation of anew
matter which, while hypothetically admitting the
material allegations in the pleading of the claimant,
would nevertheless prevent or bar recovery by him.
Affirmative defenses include fraud, prescription,
release payment, and any other matter by way of
confession and avoidance.

2. NEGATIVE DEFENSES - specific denial of the
material facts or facts alleged in the pleading of the
claimant essential to his cause of action.

Insufficient denial or denial amounting to
admissions:
1. General denial;
2. Denial in the form of a negative pregnant.

Section 6. Counterclaim

COUNTERCLAIM any claim which a defending
party may have against an opposing party.

Nature of counterclaim: A counterclaim is in the
nature of a cross-complaint. Although it may be
alleged in the answer, it is not part of the answer.
Upon its filing, the same proceedings are had as in
the original complaint. For this reason, it must be
answered within ten (10) days from service.

Section7. Compulsory Counterclaim

A counterclaim before the MTC must be within the
jurisdiction of said court, both as to the amount and
nature thereof.

Counterclaims may either be:
1. Compulsory; or
2. Permissive

NOTE: In an original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount (Section 7, Rule 6).

Agustin v. Bacalan 135 SCRA 340 (1985)
If a counterclaim is filed in the MTC in excess of
its jurisdictional amount, the excess is considered
waived

Calo v. Ajax International 22 SCRA 996 (1968)
The remedy where a counterclaim is beyond the
jurisdiction of the MTC is to set off the claims and file
a separate action to collect the balance.

COMPULSORY
COUNTERCLAIM
PERMISSIVE
COUNTERCLAIM
One which arises out
of or is necessarily
connected with the
transaction or
occurrence that is
the subject matter of
It does not arise out of nor is
it necessarily connected with
the subject matter of the
opposing partys claim.
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the opposing partys
claim.
It does not require
for its adjudication
the presence of third
parties of whom the
court cannot acquire
jurisdiction.
It may require for its
adjudication the presence of
third parties over whom the
court cannot acquire
jurisdiction.

It is barred it not set
up in the action.

It is NOT barred even if not
set up in the action.

Need not to be
answered; no
default.

Must be answered, otherwise,
the defendant can be
declared in default.

Gojo v. Goyola 35 SCRA 557 (1970)
A plaintiff who fails or chooses not to answer a
compulsory counterclaim may not be declared in
default , principally because the issued raised in the
counterclaim are deemed automatically joined by the
allegations of the complaint.

REQUISITES OF A COMPULSORY COUNTER
CLAIM:
1. It must arise out of, or be necessarily connected
with, the transaction or occurrence that is the
subject matter of the opposing partys claim;
2. It does not require for its adjudication the
presence of third parties of whom the court
cannot acquire jurisdiction;
3. It must be within the jurisdiction of the court.

GENERAL RULE: A compulsory counterclaim not set
up in the answer is deemed barred.

EXCEPTION: If it is a counterclaim which either
matured or was acquired by party after serving his
answer. In this case, it may be pleaded by filing a
supplemental answer or pleading before judgment.
(Section 9, Rule 11)

NOTE: the filing of a motion to dismiss and the
setting up of a compulsory counterclaim are
incompatible remedies. In the event that a defending
party has around for dismissal and a compulsory
counterclaim at the same time, he must choose only
on remedy. If he decide to file must a motion dismiss
, he will lose his counterclaim, but if he opts to set up
his counterclaim, he may so plead his ground for
dismissal as an affirmative defense in his answer.

Section 8. Cross-claim

REQUIREMENTS FOR A CROSS-CLAIM:
1. A claim by one party against a co-party;
2. It must arise out of the subject matter of the
complaint or of the counterclaim; and
3. The cross-claimant is prejudiced by the claim
against him by the opposing party.

If it is not set up in the action, it is barred except:
1. When, it is outside the jurisdiction of the court; or
2. If the court cannot acquire jurisdiction over third
parties whose presence is necessary for the
adjudication of said cross-claim.

In which case, the cross-claim is considered
permissive.

The dismissal f the complaint carries with it the
dismissal of a cross-claim which is purely defensive,
but not a cross-claim seeking an affirmative relief.

Cross Claim Counterclaim 3
rd
party
Complaint
Against a co-
party
Against an
opposing party.
Against a
person not a
party to the
action.
Must arise out
of the
transaction that
is the subject
matter of the
original action
or of a
counterclaim
therein
May arise out of
or be
necessarily
connected with
the transaction
or that is the
subject matter
of the opposing
partys claim in
which case, it is
called a
compulsory
counterclaim, or
it may not, in
which case it is
called a
permissive
counterclaim.
Must be in
respect of the
opponents
claim (Plaintiff).

Section 9. Counter-counterclaims and counter
cross-claims

Counter-Counterclaims is a claim asserted
against an original counterclaimant

Counter-Crossclaims is a claim filed against an
original cross-claimant.

Section 10. Reply

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REPLY the response of the plaintiff to the
defendants answer the function of which is to deny
or allege facts in denial or in avoidance of new
matters alleged by way of defense in the answer and
thereby join or make issue as to such new matters.

EFFECT OF FAILURE TO REPLY

GENERAL RULE: Filing a reply is merely optional.
New facts that were alleged in the answer are
deemed controverted should a party fail o reply
thereto.

EXCEPTION: Reply is required
Where the answer is based on an ACTIONABLE
DOCUMENT (Sec. 8, Rule 8.)

Section 11. Third (fourth, etc.)- party complaint

THIRD PARTY COMPLAINT a claim that a
defending party may, with leave of court, file against
a person not a party to the action for contribution,
indemnity, subrogation or any other relief, in respect
of his opponents claim. There could also be a fourth,
etc, - party complaint with the same purpose and
function.

THIRD-PARTY
COMPLAINT
COMPLAINT IN
INTERVENTION
Brings into the action a
third person who was not
originally a party.
Same.
Initiative is with the
person already a party to
the action.
Initiative is with a non-
party who seeks to join
the action.

TESTS to determine whether the third-party
complaint is in respect of plaintiffs claim:
1. Whether it arises out of the same transaction on
which the plaintiffs claim is based, or although
arising out of another or different transaction, is
connected with the plaintiffs claim.
2. Whether the third-party defendant would be
liable to the plaintiff or to the defendant for all or
part of the plaintiffs claim against the original
defendant; and
3. Whether the third party defendant may assert
any defenses which the third-party plaintiff has
or may have to plaintiffs claim

Summons on third, fourth etc-party defendant must
be served for the court to obtain jurisdiction over his
person, since he is not an original party.

Republic v. Central Surety & Insurance 25 SCRA
641 (1968)
Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the third party
complaint, regardless of the amount involved as a
third party complaint is merely auxiliary to and is a
continuation of the man action.

NOTE: A third party complaint is no proper in an
action for declaratory relief.

Section 12. Bringing New Parties

Distinguish from a 3
rd
party complaint: A 3
rd
party
complaint is proper when not one of the third party
defendants therein is a party to the main action. If
one or more of the defendants in a counterclaim or
cross-claim is already a party to the action, then the
other necessary parties may be brought in under this
section.

RULE 7
PARTS OF A PLEADING

Section 1. Caption

Section 2. The Body

PARTS OF A PLEADING

The Caption contains the following:
1. The name of the court;
2. The title of the action; and
3. The docket number if assigned.

The Body sets forth:
1. Its designation;
2. The allegation of the partys claims and
defenses;
3. The relief prayed for: and
4. The date of the pleading

Section 3. Signature and address

The signature of the counsel is a certification:
1. That he has read the pleading;
2. That to the best of his knowledge, information or
belief, there is good ground to support it; and
3. It is not interposed for delay.

NOTE: An UNSIGNED PLEADING produces no legal
effect. However, the court may, in its discretion, allow
such deficiency to be remedied if it shall appear that
the same was due to inadvertence and not intended
for delay.
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DISCIPLINARY ACTION ON COUNSEL IN THE
FOLLOWING CASES:
1. Deliberately filing an unsigned pleading;
2. Deliberately signing a pleading in violation of the
Rules;
3. Alleging scandalous or indecent matter in the
pleading; or
4. Failing to promptly report a change of his
address.

Section 4. Verification

Pleadings need NOT be verified EXCEPT when
otherwise provided by the law or rules.

HOW A PLEADING IS VERIFIED
By an affidavit that the affiant:
1. Has read the pleading; and
2. That the allegations therein are true and correct
of his personal knowledge or based on authentic
documents.

Section 5. Certification against forum-shopping

FORUM SHOPPING consists of filing multiple suits
in different courts, either simultaneously or
successively, involving the same parties, to ask the
courts to rule on the same or related causes and/or to
grant the same or substantially the same relief.

Test to determine the presence of forum-
shopping: Whether in the two (or more) cases
pending, there is identity of (a) parties, (b) rights or
causes of action, and (c) relief sought.

The certificate is to be executed by petitioner, and not
by counsel.

Required ONLY for complaints or initiatory pleadings
such as permissive counterclaim, cross-claim, etc.

UST Hospital v. Surla 294 SCRA 382 (1998)
Certificate of non-forum shopping is not required
in a compulsory counterclaim. A counterclaim is not
an initiatory pleading

EFFECT OF FAILURE TO COMPLY:
Not curable by mere amendment of the pleading but
shall be cause for dismissal of the case, without
prejudice, unless otherwise provided upon motion
and after hearing

EFFECT OF SUMBISSION FO FALSE
CERTIFICATION OR NON-COMPLIANCE WITH
THE UNDERTAKINGS THEREIN:
1. Indirect Contempt
2. Without prejudice to the filing of
administrative and criminal actions

EFFECT OF WILLFUL AND DELIBERATE FORUM
SHOPPING:
1. Shall be ground for summary dismissal of the
case with prejudice;
2. Direct contempt, as well as a cause for
administrative sanctions.

RULE 8
MANNER OF MAKING ALLEGATIONS IN A
PLEADING

Section 1. In general

Every pleading shall contain in a methodical and
logical form a plain, concise and direct statement of
the ultimate facts, omitting the statement of mere
evidentiary facts.

ULTIMATE FACTS those which directly form the
bases of the right sought to be enforced or the
defense relied upon.

If the ultimate facts are NOT alleged, the cause of
action would be insufficient.

EVIDENTIARY FACTS those which are necessary
to prove the ultimate fact or which furnish evidence
of the existence of some other facts.

COMPLAINT ANSWER
Filed by plaintiff Filed by defendant
Must contain a direct
statement of the ultimate
facts, omitting statement
of mere evidentiary facts
If defense relied is based
on law, cite the pertinent
legal provisions thereof,
as well as its applicability
to him

Section 2. Alternative causes of action or defense

PLAINTIFFS DEFENDANT
Alternative allegations
cases where the facts
essential to the plaintiffs
cause are within the
knowledge of the
defendant, yet the
plaintiff is so imperfectly
informed that he cant
state them with certainty
Defendant may state
hypothetical allegations
(affirmative defense)
Plaintiff should state the Defendant may also
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facts within his
knowledge with certainty,
but to plead in alternative
the doubtful facts which
are wholly within the
defendants knowledge
and call upon the
defendant to make full
disclosure of these facts
plead as many defenses
and counterclaims he
may have
Plaintiff may state
alternative causes of
action, be they
compatible with each
other or not
Inconsistency does not
operate as waiver or
withdraw of defense in
another portion of his
answer
It is sufficient that each is
consistent with itself

Section 3. Conditions Precedent

Pleading must state conditions precedent to the
cause of action, i.e. failure to compromise,
compliance with conciliation process at the barangay
level.

Failure to state the conditions precedent will make
the complaint defective and vulnerable to dismissal,
even on appeal, on ground of lack of cause of action.

NOTE: Compliance with conciliation process is a
condition precedent but not a jurisdictional
requirement; however, it may still be a ground for
dismissal on reason of non-compliance with condition
precedent.

Section 4. Capacity

Facts showing the capacity to sue and be sued must
be averred.

A party desiring to raise the issue of lack of capacity
to sue must do so by specific denial.

-Example of what must be pleaded:
-that a foreign corporation (generally not
allowed to sue, but can be sued) has license
to do business in the country or is not doing
business in the country
-foreign corporation must also aver its
capacity to sue or be sued

-Example of what the defendant must plead:
-if the defendant wants to raise an issue as to
the plaintiffs legal capacity to sue, he should
file a motion to dismiss on that ground or set
it up as affirmative defense in the answer
-on the other hand, if the defendant wants to
raise an issue of his legal capacity to be
sued, he should question the jurisdiction of
the court over his person

Section 5. Fraud, mistake, condition of the mind

Fraud or mistake must be stated with particularity
while malice or intent must be averred generally.

The defendant may move for a bill of particulars
when the allegations of fraud, etc. are merely
conclusions of law, and are without statement of the
facts to which such terms have reference.

If after the granting the motion for bill of particulars,
the plaintiff still refuses to do so, the court may simply
dismiss the complaint.

Section 6. Judgment

The jurisdiction of the court a quo is presumed, it is
sufficient to aver the decision or judgment without
setting forth matter showing jurisdiction to render it.

IN SUMMARY: FACTS THAT MAY BE AVERRED
GENERALLY:
1. Conditions precedent; (BUT there must still be an
allegation that the specific condition precedent
has been complied with, otherwise, it will be
dismissed for lack of cause of action)
2. Capacity to sue or be sued;
3. Capacity to sue or be sued in a representative
capacity;
4. Legal existence of an organization;

NOTE: a party desiring to raise an issue as to the
legal existence or capacity of any party to sue or
be sued in a representative capacity shall do so
by SPECIFIC DENIAL which shall include
supporting particulars within the pleaders
knowledge;
5. Malice, intent, knowledge, or other condition of
the mind;
6. Judgments of domestic or foreign courts,
tribunals, boards, or officers; (no need to show
jurisdiction)
7. Official document or act.

FACTS THAT MUST BE AVERRED
PARTICULARLY: Circumstances showing fraud or
mistake in all averments of fraud or mistake.

Section 7. Action or defense based on document

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Applies to a cause of action or defense that relies on
written document.

What to do?
1. present the substance of the document in the
pleading
2. attach an original or copy of the document as
an exhibit
3. but, do not put evidence yet, even if in writing
(ex letters, mail) they have no place in a
pleading

A non-actionable document is some other extraneous
document which is not the main object of the action.
ex. Demand letter

An actionable document is the main object of the
action. ex. Promissory note, deed of mortgage,
written contract

ACTIONABLE DOCUMENT written instrument
upon which the action or defense is based.

Two permissible ways of pleading an actionable
document:
1. By setting forth the substance of such
document in the pleading and attaching said
document thereto as an exhibit (contents of
the document annexed are controlling, in
case of variance in the substance of the
document set forth in the pleading and in the
document attached); or
2. By setting forth said document verbatim in
the pleading.

Section 8. How to contest such document

HOW TO CONTEST AN ACTIONABLE
DOCUMENT:
1. By specific denial under oath; and
2. By setting forth what is claimed to be the facts.

Where the actionable document is properly alleged,
the failure to specifically deny under oath the same
results in;

1. The admission of the genuineness and due
execution of said document, EXCEPT than an
oath is not required:
a. When the adverse party was not a party
to the instrument; OR
b. When compliance with an order for an
inspection was refused.
2. The document need not be formally offered in
evidence.

GENUINENESS means nothing more than that the
instrument is not spurious, counterfeit, or of different
import on its face from the one executed by the party
or that the party whose signature it hears has signed
it and that at the time it was signed, it was in words
and figures exactly as set out in the pleadings.

DUE EXECUTION mean that the document was
signed voluntarily and knowingly by the party whose
signature appears thereon, that if signed by
somebody else such representative had the authority
to do so, that it was duly delivered, and that the
formalities were complied.

Defenses not waived despite failure to
specifically deny under oath:
1. Payment;
2. Want or illegality of consideration;
3. Fraud;
4. Mistake;
5. Compromise;
6. Statute of Limitations;
7. Estopped;
8. Duress;
9. Minority or imbecility

The aforementioned defenses are not inconsistent
with the genuineness and due execution of the
document.

BUT the following defenses are waived:
1. Forgery in the signature;
2. Unauthorized signature, as in the case of an
agent signing for his principal;
3. The corporation was not authorized under its
charter to sign the instrument;
4. Want of delivery; or
5. At the time the document was signed, it was not
in words and figures exactly as set out in the
pleading.

Central Surety v. Hodges 38 SCRA 159 (1971)
Failure to specifically deny under oath the
genuineness and due execution of an actionable
document generally implies an admission of the
same by the other party. However, such IMPLIED
ADMISSION IS DEEMED WAIVED if the party
asserting the same has allowed the adverse party to
present evidence contrary to the contents of such
document without objection

Section 9 Official document or act

Section 10 Specific Denial

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THREE WAYS OF MAKING A SPECIFIC DENIAL:
1. By specifically denying the averment and,
whenever practicable, setting forth the
substance of the matters relied upon for such
denial;
2. Part admission and part denial; and
3. By an allegation of lack of knowledge or
information sufficient to form a belief as to the
truth of the averment in the opposing partys
pleading.

NOTE: this does not apply where the fact as to which
want of knowledge is asserted is, to the knowledge of
the court, so plain and necessarily within the
defendants knowledge that his averment of
ignorance must be palpable untrue.

NEGATIVE PREGNANT a form of denial which at
the same time involves an affirmative implication
favorable to the opposing party; it is in effect, an
admission of the averment to pregnant with an
admission of the substantial facts in the pleading
responded to.

Section 11. Allegation not specifically denied
deemed admitted

GENERAL RULE: allegations NOT specifically
denied are deemed admitted.

EXCEPTIONS:
1. Allegations as to he amount of unliquidated
damages;
2. Allegations immaterial as to the cause of action;
and
3. Conclusion of law.

Section12. Striking out of pleading or matter
contained therein

Allegations of merely evidentiary or immaterial facts
may be expunged from the pleading or may be
stricken out on motion.

RULE 9
EFFECT OF FAILURE
TO PLEAD

Section 1. Defenses and objections not pleaded

GENERAL RULE: Defenses and objections not
raised in MOTION TODISMISS or in the ANSWER
are deemed waived.

EXCEPTIONS:

1. Lack of jurisdiction over the subject matter
2. Litis pendentia;
3. Res Judicata
4. Prescription of the action.

Tijam v. Sibonghanoy 23 SCRA 29 (1968)
The court shall dismiss the claim if any of these
grounds appears from the pleadings or the evidence
on record.
These defenses may be raised at any stage of
the proceedings even for the first time on appeal
EXCEPT that lack of jurisdiction over the subject
matter may be barred by laches.

Section 2. Compulsory Counterclaim, or Cross-
claim not set-up barred

An AMENDED ANSWER is proper if the counterclaim
or cross claim already existed at the time the original
answer was filed, but due to oversight, inadvertence,
or excusable neglect, it was not set up.

A SUPPLEMENTAL ANSWER is proper if the
counterclaim or cross-clam matures or is acquired
after the answer is filed.

Section 3. Default, declaration of

DEFAULT the failure of the defendant to answer
within the proper period. It is not his failure to appear
nor failure to present evidence.

ORDER OF DEFAULT JUDGMENT BY
DEFAULT
Issued by the court, on
plaintiffs motion for
failure of the defendant
to failure his responsive
pleading seasonably.
Rendered by the court
following a default order
or after it received, ex
parte, plaintiffs evidence.
Interlocutory- not
appealable
Final - appealable

REQUISITES FOR A DECLARATION OF
DEFAULT:
1. Defendant FAILS TO ANSWER within the time
allowed therefore;
2. There must be a MOTION to declare the
defendant in default;
3. There must be NOTICE to the defendant by
serving upon him a copy of such motion; and
4. There must be PROOF of such failure to
answer.

WHERE NO DEFAULTS ARE ALLOWED:
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1. Annulment of marriage;
2. Declaration of nullity of marriage;
3. Legal Separation;
4. Special civil actions of certiorari, prohibition and
mandamus where comment instead of an
answer is required to be filed
5. Summary procedure

EFFECT OF AN ORDER OF DEFAULT: entitled to
notice of
1. Motion to declare him in default;
2. Order declaring him in default;
3. Subsequent proceedings; and
4. Service of final orders and judgments

Cavili v. Florendo 154 SCRA 610 (1987)
A defendant declared in default cannot take part
in the trial, but he cannot be disqualified from
testifying as a witness in favor of non-defaulting
defendants.

If the defendant was declared in default upon an
original complaint, the filing of the amended
complaint resulted in the withdrawal of the original
complaint, hence the defendant was entitled to file
the answer to the amended complaint as to which he
was not in default.

PARTIAL DEFAULT:
1. The default asserting a claim states a common
cause of action against several defending
parties;
2. Some of the defending parties answer and the
others fall to do so; and
3. The answer interposes a common defense.

EFFECT OF PARTIAL DEFAULT: The court will try
the case against ALL defendants upon the answer of
some EXCEPT where the defense is personal to the
one who answered, in which case, it will not benefit
those who did not answer.

REMEDIES FROM JUDGMENT BY DEFAULT

Judgment by default

Motion for new trial or reconsideration at any time
after service of judgment by default and within 15/30
days therefrom

Failure to file a motion for new trial/ denial of said
motion

Perfect appeal from said judgment by default within
the balance of said 15/30 day period

Failure to appeal without defendants fault

Petition for relief from judgment within 60 days from
notice of the judgment but within 6 months from entry
thereof

Annulment of Judgment under RULE 47

EXTENT OF RELIEF TO BE AWARDED IN A
JUDGMENT B DEFAULT:
Shall not exceed the amount OR be different in kind
from that prayed for NOR award unliquidated
damages.

RULE 10
AMENDED AND SUPPLEMENTAL

Section 1. Amendments in general

Pleadings may be amended:
1. Adding an allegation of a party;
2. Adding the name of a party;
3. Striking out the name of a party;
4. Correcting a mistake in the name of a party; and
5. Correcting a mistake in the name of a party; and
6. Correcting a mistake or inadequate allegation or
description in any other respect.

Section 2. Amendments as a matter of right

Amendment is a matter of right before a responsive
pleading is SERVED, or in case of a REPLY, within
10 days after it was SERVED. Such rights can only
be exercised ONCE. Subsequent amendments
should be made only by leave of court even if the
other party has not yet served a responsive pleading.

NOTE: a motion to dismiss is not a responsive
pleading. As such, an amendment AFTER the denial
of a motion to dismiss is still considered as a matter
of right. Hence, it may be done without leave of court.

Section 3. Amendments by leave of court

Leave of court is required:
1. If the amendment is substantial; AND
2. A responsive pleading had already been served.

Requisites:
1. There must be a motion filed in court;
2. Notice to the adverse party; and
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3. Opportunity to be heard afforded to the adverse
party.

Instances when amendment by leave of court
may not be allowed:
1. When cause of action, defense or theory of the
case is changed;
2. Amendment is intended to confer jurisdiction to
the court;
3. Amendment to cure a premature or non-existing
cause of action; and
4. Amendment for purposes of delay.

Section 4. Formal Amendments

Section 5. Amendment to conform to or authorize
presentation of evidence

When issues NOT RAISED in the pleadings are tried
with the express implied consent of parties
1. They shall be treated as if raised in the pleading;
2. Pleadings may be amended to conform to the
evidence; and
3. Failure to amend does not affect the result of the
trial of these issues.

Section 6. Supplemental pleadings

SUPPLEMENTAL PLEADINGS is one which sets
forth transactions, occurrences, or events which have
happened since the date of the filing of the complaint.
NOTE: The cause of action stated in the
supplemental complaint must be the same as that
stated in the court should not admit the supplemental
complaint (Asset Privatization Trust v. CA 229 SCRA
627)

AMENDED PLEADING SUPPLEMENTAL
PLEADING
Refers to facts existing at
the time of the
commencement of the
action.
Refers to facts arising
after the filing of the
original pleading.
Take the place of the
original pleading.
Taken together with the
original pleading.
Can be made as a matter
of right as when no
responsive pleading has
yet been filed.
Always with leave of
court
When an amended
pleading is filed, anew
copy of the entire
pleading must be filed.
A supplemental pleading
does not require the filing
of a new copy of the
entire pleading.

Section 7. Filing of amended pleadings

EFFECT OF AMENDED PLEADING
1. An amended pleadings supersedes the pleading
that it amends;
2. Admissions in the superseded pleading can still
be received in evidence against the pleader;
3. Claims or defenses alleged therein but not
incorporated or reiterated in the amended
pleading are deemed waived.

NOTE: Admission in a superseded pleading is an
EXTRAJUDICAL ADMISSION and may be proved by
the party relying thereon by formal offer in evidence.
(Regalado, 2002, p.193)

NOTE: Some authors are of the opinion that
admissions in superseded pleadings need not be
offered in evidence pursuant to Section 4 of Rule
129.

RULE 11
WHEN TO FILE RESPONSIVE PLEADINGS

Section 1. Answer to the complaint

Section 2. Answer of a defendant foreign private
juridical entity

Answer to a complaint
1. Within 15 days after service of summons,
UNLESS a different period is fixed by the
court;
2. In case the defendant is a foreign private
juridical entity;
a. if it has a resident agent- within 15
days after service of summons to
him;
b. if it has no resident agent, but it has
an agent or officer in the Philippines
within 15 days after service of
summons to said agent or officer;
c. it has no resident agent nor agent
nor officer in which case service of
summons is to be made on the
proper government office which will
then send a copy by registered mail
to the home office of the foreign
private corporation within 30 days
after receipt of summons by the
home office of the foreign private
entity.
3. In case of service of summons by publication
within the time specified in the order
granting leave to serve summons by
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publication, which shall NOT be less than 60
days after notice (rule 14, Section 15)
4. in case of a non-resident defendant on whom
extraterritorial service of summons is made,
the period to answer should be at least 60
days.

The court may extend the time to file the pleadings
but may not shorten them.

Section 3. Answer to amended pleadings

1. In the filing of an amended complaint is a
matter of rightwithin 15 days from service
of amended complaint
2. If the filing of an amended complain is NOT a
matter of rightwithin 10 days counted from
notice of the court order admitting the same.

NOTE: The rule shall apply to the answer to an
amended counterclaim, amended cross-claim,
amended third (fourth, etc.- party complaint, and
amended complaint-in-intervention)

If no new answer is filed, answer to original pleading
shall be deemed as answer to the amended pleading.

Section 4. Answer to counterclaim or cross-claim

A counterclaim or cross-claim must be answered
within 10 days from service.

Section 5. Answer to third (fourth, etc.)-party
complaint

The third party defendant is served with summons
just like the original defendant, hence, he also has
15, 30, 60 days from service of summons, as the
case may be, to file his answer.

Section 6. Reply

A reply may be filed within 10 days from service of
the pleading responded to.

Section 7. Answer to supplemental complaint

Answer to a supplemental complaint must be filed
within 10 days from notice of the order admitting the
same.

As in the case of the filing of an amended pleading
with leave of court, the filing of supplemental
complaint requires leave of court. However, unlike
the former, the court may fix a different period for
answering the supplemental complaint in lieu of
the10-day reglementary period.

Section 8. Existing counterclaim or cross-claim

Section 9. Counterclaim or cross-claim arising
after answer

Section 10. Omitted counterclaim or cross-claim

Counterclaims or cross-claims omitted through
oversight, inadvertence, or excusable neglect or
when justice requires may be set up by the pleader
BEFORE JUDGMENT. Leave of court is necessary.

Section 11. Extension of time to plead

REQUISITES:
1. There must be a motion;
2. With service of such motion to other
party; and
3. On such terms as may be just.

RULE 12
BILL OF PARTICULARS

Section 1. When applied for; purpose

BILL OF PARTICULARS a more definite statement
of any matter which is not averred with sufficient
definiteness or particularity.

PURPOSE: to aid in the preparation of a responsive
pleading.

Galeon v. Galeon 60 SCRA 234 (1976)
An action cannot be dismissed on the ground that
the complaint is vague or indefinite. The remedy of
the defendant is to move for a bill of particulars or
avail of the proper mode of discovery.

The motion for bill of particulars shall be filed before
responding to a pleading. Hence, it must be filed
within the period granted by the Rules (Rule 11) for
the filing of a responsive pleading.

The motion shall point out:
1. The defects complained of:
2. The paragraphs wherein they are
contained; and
3. The details desired.

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Section 2. Action by court

The court may either:
1. Deny: or
2. Grant it outright: or
3. Allow the parties the opportunity to be
heard.

Section3. Compliance with order

EFFECTS OF MOTION
1. If the motion is granted, in whole or in part, the
movant can wait until the bill of particulars is
served on him by the opposing party and then
he will have the balance of the reglementary
period within which to file his responsive
pleading;
2. If his motion is denied, he will still have such
balance of the reglementary period to file his
responsive pleading; counted from service of the
order denying his motion.

NOTE: If ether case, he shall have not less than 5
days to file his responsive pleading.

The bill of particulars may be filed either in a separate
or in an amended pleading, serving a copy thereof on
the adverse party. It becomes part of the pleading
sought to be clarified.

Section 4. Effect of non-compliance

Effect of non-compliance:

1. If the order is not obeyed or in case of
insufficient compliance therewith, the court:
a. may order the striking out of the
pleading or the portion thereof to
which the order is directed; or
b. make such order as it may deem
just.

2. if the plaintiff fails to obey, his complaint may
be dismissed with prejudice UNLESS
otherwise ordered by the court; (Rule 12,
Sec. 4; Rule 17, Section 3)

3. If defendant fails to obey, hi answer will be
stricken off and his counterclaim dismissed,
and he will be declared in default upon
motion of the plaintiff. (Rule 12, Section 4;
Rule 17, Section4; Rule 9, Section 3)

Section 5. Stay of period to file responsive
pleading

Section 6. Bill a part of pleading

RULE 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS

Note: This rule is not arranged per section but per
topic.

Section 1. Coverage

Notice given to a party who is represented by counsel
is a nullity, unless service thereof on the party himself
was ordered by the court or the technical defect was
waived.

Where party is represented by more than one
counsel of record, service of notice on any of the
latter is sufficient.

Section 2. Filing and service, defined

FILING OF PLEADINGS SERVICE OF
PLEADINGS
-Act of presenting the
pleading or other paper
to the clerk of court
Act providing a party with
a copy of the pleading or
paper concerned
a) personally to the
clerk of court
b) sending them by
registered mail
-judgment, pleadings and
orders are served to
counsel, except:
1) when he has no
counsel
2) when counsel of
record cant be located
3) when party himself is
directed by court to show
cause (ex. Contempt)
-if represented by 2
counsels, notice may be
made either upon both or
either of them
MODES OF SERVICE
a) personally
b) mail
c) substituted
service

Section 3. Manner of Filing

FILING act of presenting the pleasing or other
paper to the clerk of court

Manner of filing
1. Personal Service; or
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2. Registered mail

Filing by mail should be through the registry service
which is made by deposit of the pleading in the post
office, and not through other means of transmission.

If registry service is not available in the locality of
either sender or addressee, service may be done by
ordinary mail.

Benguet Electric Cooperative, Inc. v. NLRC 209
SCRA 55 (1992)
If a private carrier is availed of by the party, the
date of actual receipt by the court of such pleading
and not the date of delivery to the private carrier, is
deemed to be the date of the filing of that pleading.

PERSONALLY TO THE
CLERK OF COURT
SENDING THEM BY
REGISTERED MAIL
Clerk of court endorse
the date and hour of the
filing
Date of mailing shall be
considered as the date of
filing
Registered mail only
-reason: government
postal service enjoys the
presumption of regularity
-date of mailing = date of
filing
Private letter couriers
-not recognized because
you cant apply the
presumption of regularity
to private entity
-nevertheless, the date of
actual receipt is the one
counted

Section 4. Papers required to be filed and served
1. Pleading subsequent to the complaint;
2. Appearance;
3. Written Motion;
4. Notice;
5. Order;
6. Judgment;
7. Demand;
8. Offer of judgment;
9. Resolution; or
10. Similar papers

Papers subsequent to complaint must be filed with
court and served upon parties.

Pleadings subsequent to original complaint and
written motions should first be served on the parties
before they are filed with court. This simply means
that defendants answer cant be filed at once to the
clerk of court, because you must first serve a copy
thereof to the plaintiff, signed by him only then can
you file an answer with proof of service.

Section 5. Modes of Service

SERVICE OF PAPERS SERVICE OF
JUDGMENTS, FINAL
ORDERS,
RESOLUTIONS
a) personal service
b) registered mail
c) ordinary mail
a) personal service
b) registered mail
c) publication

Promulgation of decision in criminal cases = reading
of judgment

Promulgation of decision in civil cases = date when
the copy was served on the counsel by registered
mail

3 KINDS OF SERVICE:
PERSONAL
SERVICE
SERVICE BY
MAIL
SUBSTITUTED
SERVICE
Deliver
personally:
1) party or
counsel
2) by leaving it
in his office
with clerk or
person
having
charged
thereof
3) leaving it at
the residence
of either, with
a person of
sufficient age
and
discretion
residing
therein
Depositing
copy in the
post office, or
residence, with
instructions of
return to
sender if
undelivered
within 10 days
Delivering copy
to the clerk of
court with proof
of failure of both
personal and
service by mail
(different from
substituted
service under
Sec. 7, Rule 14)

Section 6. Personal Service

PERSONAL SERVICE- Actual delivery of the
processes to him (includes service at the residence
or his attorney)

Section 7. Service by mail

Section 8. Substituted Service

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Section 9 Service of Judgments, Final Orders or
Resolutions

Service by publication = only when he absconds and
defendants address is unknown

Section 10. Completeness of Service

Service is completed when:
Personal
service
Registered
mail
Ordinary mail
Upon actual
delivery
Upon actual
receipt by the
addressee or 5
days from the
date he
received 1
st

notice from
postmaster
Upon expiration
of 10 days after
mailing
-1
st
notice from
postmaster
needs
conclusive proof

Completeness begins the running of the period for
filing of the responsive pleadings

Section 11. Priorities in modes of service and
filing

Personal service is preferred and written explanation
is needed why such was not taken

Service by registered mail may be done if the
distance from the court to the adverse party is
considered

Section 12. Proof of filing

Filing is proved by its existence in the record of the
case.

If it is not in the record, and;
1. If filed personally: proved by the written or
stamped acknowledgement of its filing by the
clerk of court on a copy of the same: or
2. If filed by registered mall: proved by the
registry receipt and the affidavit of the person
who did the mailing with a full statement of:
a. The date and place of depositing the
mail in the post office in a sealed
envelope addressed to the court;
b. With postage fully paid; and
c. With instructions to the postmaster to
return the mail to the sender after 10
days if undelivered.

SERVICE- Act of providing a party with a copy of the
pleading of paper concerned

SUMMARY OF MODES OF SERVICE
1. PERSONAL SERVICE (SECTION 6)
a. Delivering personally a copy to the
party or his counsel; or
b. Leaving a copy in counsels office
with his clerk or with a person having
charge thereof; or
c. Leaving the copy between 8 a.m.
and 6 p.m. at the partys or counsels
residence, if known, with a person of
sufficient age and discretion then
residing thereinif no is person
found in his office, or if his office is
unknown, or if he has no office.

2. SERVICE BY MAIL (SECTION 7)
If no registry service is available in the locality, of
either sender or addressee, service may be done
by ordinary mail.

3. SUBSTITUTED SERVICE (SECTION 8)
Delivering the copy to the clerk of court with proof
of failure of both personal and service by mail.

Section 13 Proof of Service

Proof of personal service:
1. Written admission of the party served; or
2. Official return of the server; or
3. Affidavit of the party serving, containing the
date, place and manner of service.

Proof of service by ordinary mail: Affidavit of the
person mailing showing compliance of Section 7 Rule
13;

Proof of service by registered mail:
1. Affidavit of maller showing compliance of
Section 7 Rule 13; and
2. Registry receipt issued by the mailing office

Section 14. Notice of lis pendens

LIS PENDENS a notice of a pendency of the action
between the parties involving title to or right of
possession over real property.

REQUISITES:
1. Action affects the title or the right of
possession of the real property;
2. Affirmative relief is claimed; and
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3. Notice shall contain the name of the
parties and the object of the action or
defense an a description of the property
affected thereby;
4. Action in rem (AFP Mutual Benefit
Association , Inc. v. CA, 327 SCRA 203)

NOTE: This serves as a warning to all persons,
prospective purchasers or encumbrancers of the
property in litigation to keep their hands off the
property in litigation unless they are prepared to
gamble on the result of the proceedings.

The defendant may also record a notice of lis
pendens when he claims an affirmative relief in his
answer.

Notice of lis pendens CANNOT be cancelled on an
ex parte motion or upon the mere filing of a bond by
the party on whose title the notice is annotated, as
section 14 provides that such cancellation may be
authorized ONLY upon order of court after proper
showing that:

1. The notice is for the purpose of molesting the
adverse party; or
2. It s not necessary to protect the rights of the
party who caused it to be recorded.

RULE 14
SUMMONS

Minucher v. CA 214 SCRA 242 (1992)
Jurisdiction over the person of the defendant in a
civil case is acquired either by his VOLUNTARY
APPEARANCE or SERVICE OF SUMMONS upon
him.

SUMMONS is the writ by which he defendant is
notified of the action brought against him.

PURPOSE OF SUMMONS:
1. To acquire jurisdiction over the person of
the defendant in a civil case; and
2. To give notice to the defendant than an
action has been commenced against him
(right to due process).

EFFECT OF NON-SERVICE: Unless the defendant
voluntary submits to the jurisdiction of the court, non-
service or irregular service of summons renders null
and void all subsequent proceedings and issuances
in the action from the order of default up to and
including the judgment by default and the order of
execution.

One Peng v. Custodio 1 SCRA 780 (1961)
Where the defendant has already been served
with summons on the original complaint, no further
summons is required on the amended complaint if it
does not introduce new cause of action

Atkins v. Domingo 44 Phil 680 (1923)
But where the defendant was declared in default
on the original complaint and the plaintiff
subsequently filed an amended complaint, new
summons must served on the defendant on the
amended complaint, as the original complaint was
deemed withdrawn upon such amendment.

GENERAL RULE: When an additional defendant is
joined, summons must be served upon him.

EXCEPTION:
1. When the administrator of a deceased party
defendant substitutes the deceased;
2. Where upon the death of the original defendant
his infant heirs are made parties; and
3. In cases of substitution of the deceased under
Section16 of Rule 3.

NOTE: In these instances, the service of the
deceased under Section 16 of Rule 3.

Section 1. Clerk to issue summons

Summons to be issued:
1. Upon the filing of the complaint; AND
2. Payment of the requisite legal fees.

Section 2. Contents

Section 3. By whom served

Summons may be served by:
1. Sheriff;
2. Sheriffs deputy; or
3. Other proper court officers; or
4. For justifiable reasons, by any suitable
person authorized by the court issuing
the summons.
Enumeration is EXCLUSIVE

Section 4. Return

Section 5. Issuance of Alias Summons

ALIAS SUMMONS is one issued when the original
has not produced its effect because of a defect in
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form or in the manner of service, and when issued,
superseded the first writ.

Section 6. Service in person on defendant

Section 7. Substituted Service

Section 8. Service upon entity without juridical
personality

Section 9. Service upon prisoner

Section 10. Service upon minors and
incompetents

Section 11. Service upon domestic private
juridical entity

Section 12. Service upon foreign private juridical
entity

Section 13. Service upon public corporations

Section 14. Service upon defendant whose
identity or whereabouts are unknown

Section 15. Extraterritorial Service

Section 16. Residents temporarily outside the
Philippines

MODES OF SERVICE OF SUMMONS:
A. Service in person on defendant
(Section 6)
1. By handling a copy of summons to
him, OR of he refuses to receive it;
2. By tendering it to him.
B. Substituted Service (Section 7)
For substituted service of summons to be valid, it
is necessary to establish the following:
1. The impossibility of the personal
service of summons within a person
reasonable time;
2. The efforts exerted to locate the
person to be served; and
3. Service upon a person of sufficient
age and discretion residing in the
same place as defendant OR some
competent person in charge of his
office or regular place of business.

Spouses Venturanza v. CA 156 SCRA 305 (1987)
In substituted service, the sheriffs return must
show that an effort or attempt was exerted to
personally serve the summons on the defendant and
that the same had failed.

C. Publication (Section 14)

Requisites:
1. The action is in rem or quasi in rem;
2. Defendants identity and
whereabouts are unknown and
cannot be ascertained or diligent
inquiry and
3. there must be leave of court

Citizen Surety v. Melencio-Herrera 38 SCRA 369
(1971)
In action in personam where the defendant
cannot be served with summons personal or by
substituted service, the case must first be converted
into an in rem or quasi in rem action by attaching the
property of the defendant found in the Philippines
before summons can be served by publication. If no
property can be found, the action shall be archived
but shall not be dismissed,

SERVICE OF SUMMONS ON DIFFERENT
ENTITIES

Service on entity without juridical personality
(Section 8)
- Upon any or all the defendants being
sued under common name; or person in
charge of the office

Service upon minors and incompetents
(Section 10)
- In case of minors: by serving upon the
minor regardless of age, AND upon his
legal guardian, or also upon either of his
parents
- In case of incompetents: by serving on
him personally AND upon his legal
guardian, but not upon his parents,
unless they are his legal guardians
- In any event, if the minor or incompetent
has no legal guardian the plaintiff must
obtain the appointment of a guardian ad
litem for him.

Service upon prisoner
(Section 9)
- Serve on officer having management of
the jail or prisoner (warden)

Service upon domestic private juridical entity
(Section 11)
- To the president, managing partner,
general manager, corporate secretary,
treasurer, or in-house counsel.
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- NOTE: Service upon a person other than
those mentioned is invalid and does not
bind the corporation. The enumeration is
EXCLUSIVE.

Service upon foreign private juridical entity
(Section 12)
- Serve on resident agent; or if none; on
government official designated by law; or
any officer or agent of the corporation
within the Philippines

Service upon public corporations
(Section 13)
- In case defendant is the Republic of the
Philippines: by serving upon the Solicitor
General
- In case of province , city or municipality,
or like public corporations: by serving on
its executive head or on such other
officer or officers as the law or the court
may direct

Extraterritorial Service
(Section 15)
Requisites
1. defendant does not reside or is not found
the Philippines;
2. The action must be an action in rem or
quasi in rem. It either:
a) affects the personal status of
plaintiff;
b) relates to the subject which is
property within the Philippines in
which defendant has a lien or
interest;
c) demands a relief which consists
wholly or in part in excluding the
defendant from any interest in
any property within the
Philippines; or
d) property of defendant has been
attached in the Philippines
3. Mode of Service

a) with leave of court, serve outside
the Philippine by personal
service; or
b) with leave of court, serve 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 known
address of defendant; or
c) any other manner the court may
deem sufficient

Service upon a resident temporarily outside the
Philippines
(Section 16)
- Substituted service or with leave of court,
personal service out of the Philippines as
under extraterritorial service.

Service upon an unknown defendant or whose
whereabouts are unknown
(Section 14)
- with leave of court, by publication in a
newspaper of general circulation

Montalban v. Maximo 22 SCRA 1070 (1968)
Summons is validly served if it is left with some
person of suitable age and discretion then residing in
the defendants residence, even if defendant was
abroad at that time. The fact that defendant did not
actually receive the summons did not invalidated the
service of such summons.

Section 17. Leave of Court

Section 18. Proof of Service

Section 19. Proof of Service by Publication

Section 20. Voluntary Appearance

Any form of appearance in court, by the defendant,
by his agent authorized to do so, or by attorney, is
equivalent to service of summons EXCEPT where
such appearance is precisely to object to the
jurisdiction of the court over the person of the
defendant.

NOTE: Inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the
person of the defendant shall NOT be deemed a
voluntary appearance.

RULE 15
MOTIONS

Section 1. Motion, defined

Motion - is an application for relief other then by a
pleading

KINDS OF MOTIONS
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a. motion EX PARTE made without the
presence or a notification to the other
party because the question generally
presented is not debatable. (i.e. motion
for extension of time to file pleadings)
b. motion OF COURSE where the
movant is entitled to the relief or remedy
sought as a matter of discretion on the
part of the court.
c. LITIGATED motion one made with
notice to the adverse party to give an
opportunity to oppose. (i.e. motion to
dismiss)
d. SPECIAL motion motion addressed to
the discretion of the court.

GENERAL RULE: A motion cannot pray for
judgment.

EXCEPTIONS:
1. Motion for judgment on the pleadings;
2. Motion for summary judgment;
3. Motion for judgment on demurrer to evidence.

Section 2. Motion must be in writing

GENERAL RULE: Motions must be in writing.

EXCEPTIONS: Those made in OPEN COURT or in
the COURSE OF HEARING or TRIAL.

Section 3. Contents

Contents:
1. The relief sought to be obtained;
2. The ground upon which it is based; and
3. If required by the Rules or necessary to prove
facts alleged therein, shall be accompanied by
supporting affidavits and other papers.

Section 4. Hearing of Motion

Section 5. Notice of Hearing

Section 6. Proof of Service Necessary

REQUISITES OF A MOTION NOT MADE IN OPEN
COURT OR IN THE COURSE OF HEARING OR
TRIAL:
1. it must be in WRITING;
2. HEARING OF MOTION set by the applicant;
3. NOTICE OF HEARING shall be addressed to all
parties concerned not later than 10 days from
the filing of the motion; (Section 5)
4. Motion and notice of hearing must be served at
least 3 DAYS BEFORE THE DATE OF
HEARING; (Section 4) and
5. PROOF OF SERVICE.(Section 6)

EXCEPTIONS TO THE 3 DAYNOTICE RULE:
1. Ex parte motions;
2. Urgent motions;
3. Motions agreed upon by the parties to be heard
on shorter notice or jointly submitted by the
parties; and
4. Motions for summary judgment which must be
served at least 10 days before its hearing.

NOTE: Any motion that does not comply with
Sections 4,5 and 6 of this Rule (requirements 4-5) is
a mere scrap of paper. It does not interrupt the
reglementary period for the filing of the requisite
pleading.

Section 7. Motion Day

Friday afternoon

Section 8. Omnibus Motion

Omnibus Motion Rule A motion attacking a
pleading, order judgment or proceeding shall include
all objections then available. Objections not included
shall be deemed waived except the defense referred
in Section 1

Section9. Motion for leave

Section 10. Form

RULE 16
MOTION TO DISMISS

A MOTION TO DISMISS is NOT a responsive
pleading. It is not a pleading at all. It is subject to the
omnibus motion rule since it is a motion that attacks a
pleading. Hence, it must raise all objections available
at the time of the filing thereof.

GENERAL RULE: A court may not motu propio
dismiss a case unless a motion to that effect is filed
by a party thereto.

EXCEPTIONS:
1. Those cases where the court may dismiss a
case motu proprio (Section 1, Rule 9);
2. Section2 Rule 17; (Upon the plaintiffs own
motion)
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3. Rule on Summary Procedure (Section 4, 1991
Revised Rule on Summary Procedure)

TYPES OF DISMISSAL OF ACTION:

1. Motion to dismiss before answer under Rule 16;
2. Motion to dismiss under Rule 17;
Upon notice by plaintiff;
Upon motion by plaintiff;
Due to fault of plaintiff.
3. Motion to dismiss called a demurer to evidence
after plaintiff has completed the presentation of
his evidence under Rule 33;
4. Dismissal of an appeal

Section 1. Grounds

1. No jurisdiction over the person of the defending
party;
2. No jurisdiction over the subject matter of the
calm;
3. Improper venue;
4. no legal capacity to sue;
5. Litis pendentia;
6. Res judicata;
7. Prescription;
8. Failure to state a cause of action;
9. Claim or demand has been paid, waived,
abandoned, or otherwise extinguished;
10. Claim is unenforceable under the Statute of
Frauds;
11. Non-compliance with a condition precedent for
filing claim.

MOTION TO DISMISS
UNDER RULE 16
MOTION TO DISMISS
UNDER RULE 33
(demurrer to
evidence)
Grounded on
preliminary objections.
Based on insufficiency
of evidence.
May be filed by any
defending party
against whom a claim
is asserted in the
action.
May be filed only by
the defendant against
the complaint of the
plaintiff.
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.
May be filed only after
the plaintiff has
completed the
presentation of his
evidence.
If denied, defendant
answers, or else he
may be declared in
default. If granted
If denied, defendant
may present evidence
if granted, plaintiff
appeals and the order
plaintiff may appeal or
if subsequent case is
not barred, he may re-
file the case.
of the dismissal is
reversed, the
defendant loses his
right to present
evidence.

NOTE: a motion to dismiss generally partakes the
nature of a demurrer. It hypothetically admits the
allegations stated in the complaint. However, the
admission extends ONLY to material and relevant
allegations.

REQUISITES OF LITIS PENDENTIA
1. Identify of parties or at least such parties
representing the same interests in both
actions;
2. There is substantial identity in the cause
of action and relief sought, the relief
being founded on the same facts; and
3. The identity in the two cases should be
such that any judgment that may be
rendered in one, regardless of which
party is successful, would amount to res
judicata in the other case.

Motion to dismiss may be filed in either suit, not
necessarily in the one instituted first.

REQUISITES OF RES JUDICATA
1. Previous final judgment;
2. Jurisdiction over the subject matter and
the parties by the court rendering it;
3. Judgment upon the merits;
4. There must be identity of parties, of
subject matter and of cause of action
between the first and second actions.

NOTE: There could be res judicata without a trial,
such as in a judgment on the pleadings (Rule 34); a
summary judgment (Rule 35); or an order of
dismissal under Section 3 of Rule 17.

PRESCRIPTION
A motion to dismiss on the ground of prescription will
be given due course only if the complaint shows on
its face that the action has already prescribed.

PRESCRIPTION LACHES
Concerned with the
fact of delay.
Concerned with the
effect of delay.
A matter of time. A matter of equity.
Statutory. Non-statutory
Applies at law. Applies in equity.
Based on fixed time. Not based on fixed
time

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COMPLAINT STATES NO CAUSE OF ACTION
When the ground for dismissal is that the complaint
states no cause of action, such fact can be
determined only from the facts alleged in the
complaint.

FAILURE TO STATE A CAUSE OFACTION and
NOT LACK ORABSENCE OFCAUSE OF ACTION
is the ground for a motion to dismiss. The former
means there is insufficiency in the allegations in the
pleading. The latter means that there is insufficiency
in the factual basis of the action.

NON-COMPLIANCE WITH A CONDITION
PRECEDENT
Non-compliance with P.D 1508 (Katarungang
Pambarangay Law) may result to dismissal of the
case on the ground on non-compliance with a
condition precedent.

EFFECTS OF
ACTION ON MTD
REMEDY
Order granting motion
to dismiss is final order
(without prejudice)
Refile the complaint.
Order granting motion
to dismiss (with
prejudice)
Appeal
Order denying the
motion to dismiss is
interlocutory
Certiorari and
prohibition if there is
grave abuse of
discretion amounting
to lack or excess of
jurisdiction under rule
65

GENERAL RULE: an order denying a motion to
dismiss is interlocutory. The ordinary procedure is for
the defendant to file hi answer and go to trial and if
the decision is adverse, he can appeal from the
judgment and assign as error the denial of the motion
to dismiss.

EXCEPTION: if the court acts without or in excess of
jurisdiction or with grave abuse of discretion in
denying the motion, CERTIORARI or PROHIBITON
lies.

Section 2. Hearing of Motion

Section 3. Resolution of Motion

The court may order:
a. The dismissal of the action;
b. Deny the motion; or
c. Amend the pleading.

Section 4. Time to plead

Defendant is granted only the balance of the
reglementary period to which he was entitled at the
time he filed his motion to dismiss, counted from his
receipt o the denial order, but not less than 5 days in
any event.

Section 5. Effect of dismissal

GENERAL RULE: the action or claim may be re-filed

EXCEPTION: the action cannot be re-filed if it was
dismissed on any of these grounds:
1. Res judicata;
2. Prescription;
3. Extinguishment of the claim or demand;
and
4. Unenforceability under the Statue of
Frauds.

In these instances, the remedy of the plaintiff is
APPEAL.

Section 6. Pleading grounds as affirmative
defenses

If no motion to dismiss had been filed, any of the
grounds for dismissal provided for in rule 16,
INCLUDING IMPROPER VENUE, may be pleaded
as affirmative defenses and a preliminary hearing
may be had thereon in the discretion of the court.

NOTE: if the defendant would want to file a
counterclaim, he should NOT file a motion to dismiss.
Instead, he should allege the grounds of a motion to
dismiss as affirmative defenses in his answer with a
counterclaim. A preliminary hearing mat be had
thereon, and in the event the complaint too
dismissed, the defendant can PROSECUTE his
counterclaim.

The 2
nd
par. of Sec. 6 clearly provides that the
dismissal of the complaint without prejudice to the
prosecution of the counterclaim.

RULE 17
DIMISSAL OF ACTIONS

Section 1. Dismissal upon notice by plaintiff

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Dismissal is effected not by motion but by mere
NOTICE of dismissal which is a matter of right
BEFORE the SERVICE of:
1. The answer; or
2. A motion for summary judgment.

The rule requires a COURT ORDER confirming the
dismissal.

GENERAL RULE: Such dismissal is WITHOUT
PREJUDICE,

EXCEPTION:

1. Where the notice of dismissal so provides;
2. Where the plaintiff has previously dismissed the
same case in a court of competent jurisdiction
(TWO-DISMISSAL RULE)

Serrano v. Cabrera 93 Phil. 774 (1953)
The dismissal is still with prejudice even if the
notice of dismissal does not so provide, where such
notice is premised on the fact of payment by the
defendant of the claim involved

Section 2. Dismissal upon motion of plaintiff

Under this section, the dismissal of the complaint is
subject to the DISCRETION of the court and upon
such terms and conditions as may be just.

If a counterclaim has been pleaded by the defendant
PRIOR TO THE SERVICE upon hum of the plaintiffs
motion for dismissal, the dismissal shall be limited to
the complaint.

Such dismissal shall be without prejudice to the right
of the defendant to either:
1. Prosecute his counterclaim in a separate
action; OR
2. To have the same resolved in the same
action. In this case, defendant must
manifest such preference to the trial
court within 15 days from notice to him of
plaintiffs motion to dismiss.

These alternative remedies of the defendant are
available to him REGARDLESS OFWHETHER HIS
COUNTERCLAIM IS COMPULSORY OR
PERMISSIVE.

Dismissal under this rule is WITHOUT PREJUDICE,
EXCEPT:
1. When otherwise stated in the motion to
dismiss;
2. When stated to be with prejudice in the
order of the court.

The approval of the court is necessary in the
dismissal or compromise of a class suit.

Section 3. Dismissal due to fault of plaintiff

CAUSES FOR DISMISSAL
1. Plaintiff fails to appear for no justifiable
cause on the date of the presentation of
his evidence in chief on the complaint;
2. Plaintiff fails to prosecute his action for
an unreasonable length of time;
(NOLLEPRODEQU!)
3. Plaintiff fails to comply with these Rules
or any order of the court.

Jalover v. Ytoriaga 80 SCRA 100 (1977)
The plaintiffs failure to appear at the trial after he
has presented his evidence and rested his case
DOES NOT WARRANT the dismissal of the case on
the ground of failure to prosecute. It is merely a
waiver of his right to cross-examine and to object to
the admissibility of evidence

Complaint may be dismissed
1. Upon motion of the defendant; or
2. Upon the courts own motion.

Dismissal shall have the effect of an ADJUDICATION
UPON THE MERITS (RES JUDICATA), unless
otherwise declared by the court.

SECTION 2 SECTION 3
Dismissal is at the
instance of the plaintiff.
Dismissal is not procured
by plaintiff though justified
by causes imputable to
him.
Dismissal is a matter of
procedure, without
prejudice unless
otherwise stated in the
order of the court or on
plaintiffs motion to
dismiss his own
complaint.
Dismissal is a matter of
evidence, an adjudication
on the merits.
Dismissal is without
prejudice to the right of
the defendant to
prosecute his
counterclaim in a
separate action unless
w/in 15 days from notice
Dismissal is without
prejudice to the right of
the defendant to
prosecute his
counterclaim on the same
separate action.
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of the motion he
manifests his intention to
have his counterclaim
resolved in the same
action.

Section 4. Dismissal of counterclaim, cross-claim
or third party complaint

RULE 18
PRE-TRIAL

PRE-TRIAL a mandatory conference and personal
confrontation before the judge between he parties
and their respective counsel.

Section 1. When conducted

The plaintiff should promptly file a motion ex parte
that the case be set for pre-trial, and this he must do
upon the service and filing of the last pleading.

Sarmiento v. Juan 120 SCRA 403 (1983)
The last pleading need not be literally construed
as the actual filing of the last pleading. For purposes
of the pre-trial, the expiration of the period for filing
the last pleading is sufficient .

Section 2. Nature and purpose

The court shall consider:
1. The possibility of an AMICABLE
SETTLEMENT or of a submission to
alternative modes of dispute resolution;
2. The SIMPLICATION OF ISSUES;
3. The necessity or desirability of
AMENDMENTS TO THE PLEADINGS;
4. The possibility of obtaining
STIPULATIONS or ADMISSIONS of
facts and documents to avoid
unnecessary proof;

Filoil Marketing Corp. v. Dy Pac & Co. 160 SCRA
133 (1988)
The process of securing admissions, whether of
facts or evidence, is essentially voluntary. Whether of
facts or evidence, is essentially voluntary. When the
parties are unable to arrive at a stipulation of agreed
facts, the court must close the pre-trial and proceed
with the trial of the case.

5. The limitation of the number of
WITNESSES;
6. The advisability of a PRELIMINARY
REFERENCE of issues to a
commissioner;
7. The property of RENDERING
JUDGMENT on the pleadings, or
summary judgment, or of dismissing the
action should a valid ground therefore be
found to exist;
8. The advisability or necessity of
SUSPENDING THE PROCEEDINGS;
and
9. Such OTHER MATTERS as may aid in
the prompt disposition of the case.

Section 3. Notice of Pre-trial

Section 4. Appearance of parties

When non-appearance of a party may be
excused:
1. If a valid cause is shown therefore;
2. If a representative shall appear in his
behalf fully authorized in writing to:
a. Enter into an amicable settlement;
b. Submit alternative modes of dispute
resolution;
c. Enter into stipulations or admissions of
facts and of documents.

NOTE: the mere presentation of such written
authority is not sufficient, but must be complemented
by a showing of valid cause for the non-appearance
of the party himself.

Section 5. Effect of failure to appear

EFFECT OF NON-APPEARANCE OF PLAINTIFF:
Cause for dismissal of the action, with prejudice,
unless otherwise ordered by the court.

EFFECT OF NON-APPEARANCE OF
DEFENDANT:
Cause the plaintiff to present evidence ex parte and
for the court to render judgment on the basis thereof.

Section 6. Pre-trial brief

Failure to file pre-trial brief has the same effect as
failure to appear at the pre-trial.

Section 7. Record of pre-trial

The contents of the PRE-TRIAL order shall control
the subsequent course of the action, UNLESS
modified before trial to prevent manifest injustice.

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A party is deemed to have waived the delimitations in
a pre-trial order if he failed to object to the
introduction of evidence on an issue outside of the
pre-trial order, as well as in cross-examining the
witness in regard to said evidence.

PRE-TRIAL

RULE 19
INTERVENTION

Intervention - is a legal proceeding by which a third
person is permitted by the court to become a party by
intervening in a pending action after meeting the
conditions and requirement set by the Rules of Court

NOTE: Intervention is never an independent
proceeding but is ancillary and supplemental to an
existing litigation. Hence the final dismissal of the
principal action results into dismissal of said ancillary
action.

Section 1. Who may intervene
1. One who has legal interest in the matter in
litigation
f the parties
cted by distribution of other disposition of

FACTO SIDERED BY THE COURT
1. Whether the intervention will unduly delay or

2.
parate proceeding.

The inte in a
uit must be on the matter in litigation and of such

2. One who has a legal interest in the success
of either o
3. One who has an interest against both parties
or
4. One who is so situated as to be adversely
affe
property in the custody of the court or of an
officer thereof.
RS TO BE CON
No settlement Amicable
Settlement
Agreements made
by parties;
Amendments to
pleading; Schedule
of trial
If plaintiff is absent,
when so required
to attend, the court
may dismiss the
case
TRIAL Court
renders
If evidence is sufficient to
prove plaintiffs cause of
action or defendants
counterclaim, court rules
in favor of either one or
dismisses the case
prejudice the adjudication of the rights of the Failure to
appear
original parties; and
Whether the in intervenors rights may be
fully protected in a se
If defendant is
absent, court may
hear evidence of
plaintiff ex parte
rest which entitles a person to intervene
s
direct and immediate character that the intervenor will
either gain or lose by the direct legal operation and
effect of the judgment.

INTERVENTION INTERPLEADER
An ancillary action An original action
Proper in any of the
four situations
mentioned in this Rule.
Presupposes that the
plaintiff has no interest
in the subject 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.
Defendants are
already original parties precisely to
to the pending suit
Defendants are being
sued
implead them.

Section 2. Time to inter
be filed at any time
efore the rendition of judgment by the trial court.
to
tervene is barred, even if the judgment itself
- if intervenor asserts a claim against
parties.
2. Ans
vene

The motion to intervene must
b

NOTE: After rendition of judgment, a motion
in
recognizes the right of the movant. The remedy of
the movant is to file a separate action.

Section 3. Pleadings-in-intervention

1. Complaint-in-intervention
either or all of the original

wer-in-intervention
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- if intervenor unites with the defendant in

ection 4. Answer to a complaint-in-intervention
ithin 15 days from notice of the order admitting the
EMEDIES FOR THE DENIAL OF INTERVENTION
1. Appeal
s, if there is grave abuse of

there is improper granting of intervention, the
RULE 20
CALEN ASES
Section 1. Calendar of cases
ection 2. Assignment of cases.
RULE 21
S

ection 1. Subpoena and subpoena duces tecum
WO KINDS OF SUBPOENA
resisting a claim against the latter
S

W
same

R

2. Mandamu
discretion
If
remedy of the party is Certiorari.

DAR OF C

S

UBPOENA
S

T
process directed
any books,
r
under his control.
2. Subpoe andum process
hearing or the trial of an
b. vestigation conducted by
c. deposition.

ection 2. By who issued
ection 3. Form and Contents
HO ISSUES A SUBPOENA
witness is required to
2. rt of the place where the deposition
3. body authorized by law to do
4. r of the

A subpoena is signed by the Clerk of Court.

Liebnow v. Philippine Vegetable Oil 39 Phil 60
1. Subpoena duces tecum
to a person which requires him to bring with
him
a.
b. documents, o
c. other things
(Section 1)
na ad testific
directed to a person requiring him to attend
and to testify
a. at the
action, or
at any in
competent authority, or
for the taking of his
(Section1)
S

S

W
1. The court before whom
attend;
The cou
is to be taken;
The officer or
so in connection with its investigations
conducted by said officer or body; or
Any Justice of the Supreme Court o
Court of Appeals in any case or investigation
pending within the Philippines. (Section 2)

(Rule 136, Section 4)
(1918)
If a subpoena duces tecum is improperly issued,
a proper remedy is motion to vacate or set aside the
subpoena.

IF SUBPOENA IS ISSUED TO A PRISONER
to death, reclusion
on of a prisoner confined in

FORM AND CONTENTS OF A SUBPOENA AD
ate:
ourt and
stigation
required

FORM AND CONTENTS OF A SUBPOENA DUCES
urt and
stigation
person
4. asonable description of
relevant. (Section 3)
When application for a subpoena to a
prisoner is made, the judge or officer shall
examine and study carefully such application
to determine whether the same is made for a
valid purpose. (Section 2)
No prisoner (1) sentenced
perpetua or life imprisonment and (2) who is
confined in any penal institution shall be
brought outside the penal institution for
appearance or attendance in any court
unless authorized by the Supreme Court.
(Section 2)
The depositi
prison may be taken only by leave of court on
such terms as the court prescribes. (Rule 23,
Section1)
TESTIFICANDUM
A subpoena shall st
1. the name of the c
2. the title of the action or inve
3. (and) shall be directed to the person
to attend. (Section 3)
TECUM
1. the name of the co
2. the title of the action or inve
3. (and) shall be directed to the
required to attend.
It must contain a re
the books, documents or things demanded
which must appear to the court prima facie
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Section ena
POENA
1. Subpoena duces tecum
made and,
nt, at or before the time
able and oppressive,
levancy of the books,
ot

issued fails to advance

by the Rules were not
2. Subpoe
a. The thereby
d?
00 km
to travel

rt
b. Witn
the en the

Section y that
bank deposits can only be examined when there
2. in cases of impeachment, or
ty of public
4.
ect matter of the

Howeve subject to the provisions of
Section11 of the Anti-Money Laundering Act
Section 5. Subpoena for deposition
Section 6. Service
OW IS SERVICE OF A SUBPOENA MADE?
same
original shall be exhibited and a copy
2. to him
na ad testificandum, the
4. Quashing a Subpo

GROUNDS FOR QUASHING A SUB
The court may
a. upon motion promptly
b. in any eve
specified therein
c. if (grounds)
It is unreason
The re
documents or things does n
appear, or
The person in whose behalf the
subpoena is
the reasonable cost of the production
thereof.
The witness fees and kilometrage
allowed
tendered when the subpoena was
served. (Section 4)
na ad testificandum
witness is not bound
When is witness not boun
if witness resides more than 1
from the place where he is
by the ordinary course of travel,
if he is a detention prisoner and no
permission is obtained from the cou
in which his case is pending.
ess fees and kilometrage allowed by
Rules were not tendered wh
subpoena was served. (Section 4)
2 of RA 1405 provides in summar
is:
1. a written permission of the depositor, or
3. upon order of a competent court in cases
of bribery or dereliction of du
officials, or
in cases where the money deposited or
invested is the subj
litigation.
r, this is
which gives the Anti-Money Laundering Council
the right to examine any particular deposit or
investment upon order of any competent court in
cases of violation of the AMLA but there is no
need for court order if such violation of the AMLA
is related to kidnapping for ransom, violations of
the Comprehensive Dangerous Drugs Act of
2002 and hijacking.

H
Service of a subpoena shall be made in the
manner as personal or substituted service of
summons.
1. the
thereof delivered to the person on whom it is
served,
tendering
a. if subpoe
fees for one days attendance and
the kilometrage allowed by these
rules EXCEPT THAT, when a
subpoena is issued by or on
behalf of the Republic of the
Philippines or an officer or agency
thereof, the tender need not be
made.
if subpo b. ena duces tecum,
ttendance
ing
3. The service made so as to allow the

fees for ones days a
subject to the same exception as
a subpoena ad testificandum
the reasonable cost of produc
the books, documents or things
demanded if subpoena duces
tecum
must be
witness a reasonable time for preparation
and travel to the place of attendance.
(Section 6
SUBPOENA SUMMONS
An or and Order to answer a der to appear
testify or to produce
books and documents
complaint
May be served to a non-
party
Served on the defendant
Needs tender of Does not need tender of
kilometrage, cost of
production fees and
attendance
kilometrage and other
fees
Notifies party that a
complaint against him
has been filed and that
he should file an answer
within a given period
Notice of the date of the
hearing of which he is
required to attend
Issued only once at the May be issued more than
start, for the court to
acquire jurisdiction and
for the issues to be joined
once at anytime
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Violation: default Violation: indirect
contempt

ection 7. Personal Appearance in court
AN A PERSON PRESENT IN COURT BE
court before a judicial
ection8. Compelling Attendance
ection 9. Contempt
AN THE COURT COMPEL THE ATTENDANCE
ES. In case of a failure of a witness to attend, the
,
may ovince, or
If the failure to attend was willful and without
ost of the warrant and seizure of
2. eemed as contempt of the

Wh if the subpoena was not issued by the
disobedience to the subpoena shall be
puni
ARE TH RE ANY EXCEPTIONS TO COMPELLING
ES. There are two instances:
s more than 100
S

C
REQUIRED TO TESTIFY?
YES. A person present in
officer may be required to testify as if he were in
attendance upon a subpoena issued by such court or
officer. (Section 7)

S

S

C
OF A PERSON TO WHOM A SUBPOENA HAS
BEEN ISSUED?

Y
court or judge issuing the subpoena, upon:
1. proof of the service thereof and
2. proof of the failure of the witness
issue a warrant to the sheriff of the pr
his deputy, to arrest the witness and bring him before
the court or officer where his attendance is required.
(Section 8)

just cause,
1. the c
such witness shall be paid by the witness
(Section 8)
it shall be d
court from which the subpoena is issued
(Section 9)
at
court?
The
shed in accordance with the applicable law
or Rule. (Section 9)

E
ATTENDANCE OF WITNESSES ISSUED A
SUBPOENA AND FROM BEING HELD IN
CONTEMPT OR PUNISHED FOR DISOBEDIENCE?

Y
1. if the witness reside
kilometers from his residence to the place
where he is to testify by the ordinary course
of travel (known as viatory right,
applicable only in civil cases), or
2. to a detention prisoner if no permission of the
court in which his case is pending is
obtained. (Section 10)

RULE 22
COMPUTATION OF TIME

Section 1. How to compute time

HOW IS TIME COMPUTED?
In computing any period of time prescribed or allowed
by these Rules, or by order of the court, or by any
applicable statute, the first day (or the day of the act
or event from which the designated period is to run)
shall be excluded while the last day (the date of
performance) shall be included.

If the last day falls on a Saturday, Sunday or a non-
working legal holiday in the place where the court
sits, time shall not run until the next working day.
(Section 1)

Section 2. Effect of Interruption

WHAT IS THE EFFECT OF INTERRUPTION?

If period is interrupted, the allowable period after
such interruption shall start to run after notice of the
cessation of the cause of such interruption. The day
of the act that caused the interruption shall be
excluded in the computation of the period.

QUESTION: If the defendant files a motion to dismiss
on the fifth day, what is the balance of his
allowable period?
ANSWER: 11 days. Since the motion to dismiss filed
interrupts the period to file the answer, you
exclude that day in the computation of the period
and so the allowable period would be 11 days.

When the last day of the period falls on a
Saturday, a Sunday, or a legal holiday, and a
party is granted an extension of time, the
extension should be counted from the last day
which is a Saturday, Sunday, or legal holiday.
(Re: Computation of Time when the Last Day
Falls on a Saturday, Sunday, or Legal Holiday
and a Motion for Extension Filed on Next
Working Day is Granted, A.M. No. 00-2-14-SC,
2000)

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MODES OF DISCOVERY
(RULES 23-29)

DISCOVERY disclosure of facts resting in the
knowledge of the defendant, or as production of
deeds, writings, or things in his possession or power,
in order to maintain the right or title of the party
asking it, in a suit or proceeding. [Insular Life
Assurance Co., Ltd. v. CA, 238 SCRA 88, 92 (1994)]

PURPOSE OF THE MODES OF DISCOVERY
1. to narrow and clarify basic issues between
the parties,
2. as a device for ascertaining the facts relative
to those issues
3. to support a motion for summary judgment.
(Rule 35)

Denial of Bills of Particulars does not bar the use
of the Modes of Discovery. It is cumulative.

MODES OF DISCOVERY UNDER THE RULES OF
COURT
1. Depositions pending action (Rule 23)
2. Depositions before action or pending appeal
(Rule 24)
3. Interrogatories to parties (Rule 25)
4. Admission by adverse party (Rule 26)
5. Production or inspection of documents, or
things (Rule 27)
6. Physical and mental examination of persons
(Rule 28)

LIMITATIONS TO MODES OF DISCOVERY
1. When it can be shown that the examination is
being conducted in bad faith
2. When it can be shown that the examination is
being conducted in such a manner as to
annoy, embarrass, or oppress the person
subject to the inquiry.
3. Irrelevant
4. Privileged matters

Using of the modes of discovery is highly
encouraged by the court.
A copy of the order of the court
requiring the parties to avail of
interrogatories to parties under Rule 25
and request for admission by adverse
party under Rule 26 or at their discretion
make use of depositions under Rule 23
or other measures under Rule 27 and
28 within 5 days from the filing of the
answer shall be served upon the
defendant together with the summons
and upon the plaintiff. (Rule on
Guidelines to be Observed by Trial
Court Judges and Clerks of Court in the
Conduct of Pre-Trial and Use of
Deposition-Discovery Measures, A.M.
No. 03-1-09-SC, Aug. 16, 2004)

RULE 23
DEPOSITIONS PENDING ACTIONS

DEPOSITION is the testimony of a witness taken
upon oral examination or written interrogatories, not
in open court, but in pursuance of a commission to
take testimony issued by a court, or under a general
law or court rule on the subject, and reduced to
writing and duly authenticated, and intended to be
used in preparation and upon the trial of a civil or
criminal prosecution.

It is a pre-trial discovery device by which one party
(through his or her attorney) asks oral questions of
the other party or of a witness for the other party.
(People v. Webb, 312 SCRA 573, 1999)

PURPOSES OF TAKING DEPOSITIONS
1. It is of great assistance in ascertaining the
truth and in checking and preventing perjury.
The reasons for this are:
a. The witness (including a party) is
examined while his memory is fresh:
b. The witness (including a party) is
generally not coached in preparation
for a pre-trial oral examination with the
result that his testimony is likely to be
more spontaneous. Where the
examination is upon written
interrogatories, however, it appears
that some lawyers furnish the witness
with copies of the interrogatories and
thereby enable him to prepare his
answers in advance.
c. A party or witness whose deposition
has been taken at an early stage in
the litigation cannot, at a later date,
readily manufacture testimony in
contradiction to his deposition;
BILL OF PARTICULARS MODES OF
DISCOVERY
To make ultimate facts
more definite, not to
supply evidentiary matters
To discover
evidentiary facts
To prepare for
responsive pleading
To prepare for trial
(abbreviates trial)
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d. Testimony is preserved, so that if a
witness unexpectedly dies or
becomes unavailable at the trial, his
deposition is available.
2. It is an effective means of detecting and
exposing false, fraudulent, and sham claims
and defenses.
3. It makes available in a simple, convenient,
and often inexpensive way facts which
otherwise could not have been proved, except
with great difficulty and sometimes not at all.
4. It educates the parties in advance of trial as to
the real value of their claims and defenses,
thereby encouraging settlements out of court.
5. It expedites the disposal of litigation, saves
the time of the courts, and clears the docket of
many cases by settlements and dismissals
which otherwise would have to be tried.
6. It safeguards against surprise at the trial,
prevents delays, and narrows and simplifies
the issues to be tried, thereby expediting the
trial.
7. It facilitates both the preparation and trial of
the cases. (Fortune v. IAC, G.R. No. 108119,
1994)

WHEN MAY DEPOSITIONS BE TAKEN?
1. Deposition De Bene Esse taken for
purposes of pending action
2. Depositions in Perpetuam Rei Memoriam
those taken to perpetuate evidence for
purposes of an anticipated action or further
proceedings in a case on appeal

KINDS OF DEPOSITIONS
1. Depositions on Oral Examinations
(Secs. 15-24)
2. Depositions upon Written Interrogatories
(Secs. 25-28)

GENERAL PROVISIONS ON DEPOSITIONS (Secs.
1-14)

Section 1. Depositions pending action, when may
be taken

WHAT TO FILE (SECTION 1)
1. After jurisdiction has been obtained over any
defendant or over property which is the
subject of the action but before answer,
Motion to Take Oral Deposition or Written
Interrogatories (By Leave of Court)
2. After an answer has been served, Notice to
take Oral Deposition or Written
Interrogatories (Without Leave of Court)

NOTICE AND SERVICE
Deposition
pending
action
(Rule 23,
Section
15)
a party desiring to take a deposition
shall give reasonable notice in writing
to every other party to the action

Deposition
before
action
(Rule 24,
Section 3)

the petitioner shall serve a notice
upon each person named in the
petition as an expected adverse party,
together with a copy of the petition
stating the time and place.
At least 20 days before the date of
the hearing, the court shall cause
notice thereof to be served on the
parties and prospective deponents in
the manner provided for service of
summons.

Deposition
pending
appeal
(Rule 24,
Section 7)
The party must make a motion for
leave to take deposition in the court
which rendered judgment and give
notice in writing to every other party to
the action

CONTENTS OF THE NOTICE

1. For a deposition upon oral examination
(Section 15)

a. the time and place for the taking of
the deposition (upon motion of any
party upon whom the notice is
served, the court may for cause
shown enlarge or shorten the time)
and

b. the name and address of each person
to be examined, if known. If unknown,
a general description sufficient to
identify him or the particular class or
group to which he belongs.

2. For deposition upon written
interrogatories
a. The names and address of the
person who is to answer and
b. The name or descriptive title and
address of the officer before whom
the deposition is to be taken

Proof of service of a notice to take a deposition
as provided in Sections 15 and 25 of Rule 23
shall constitute sufficient authorization for the
issuance of subpoenas for the persons named in
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a
pressor
ure.
said notice by the clerk of court of the place in
which the deposition is to be taken. The clerk
shall not, however, issue a subpoena duces
tecum to any such person without an order of the
court. (Rule 21, Section 5)

Section 2. Scope of Examination

WHAT IS THE SCOPE OF EXAMINATION?
Unless otherwise ordered by the court as provided by
Section 16 or 18 of this Rule, the deponent may be
examined regarding ANY MATTER (should concur)

1. not privileged
a. privileged communication (Rule 130,
Section 24)
husband and wife
attorney and client
doctor and patient
public officer
priest and confessant
b. the list of privileged communication is
not exclusive. Ex : secrecy of bank
deposits, non-disclosure of trade
secrets, result of census, candidate
voted for except in an election case
2. relevant to the subject of the pending action,
whether relating to the claim or defense of
any other party, including the existence,
description, nature, custody, condition, and
location of any books, documents, or tangible
things and the identity and location of
persons having knowledge of relevant facts
(Section 2)
3. not restricted by protective order or motion to
limit examination (Secs. 16 and 18)

Section 3. Examination and cross-examination
may proceed as permitted at the trial under Sections
3 to 18 of Rule 132.

DEPOSITION AFFIDAVIT
Written testimony of witness
in course of judicial
proceedings, in advance of
trial and hearing
Mere sworn written
statements
Opportunity for cross-
examination
Ex parte statements
without formal
interrogation and
cross-examination
Can be competent
testimonial evidence
Not admissible in
evidence except in
cases governed by the
Rule on Summary
Procedure

Section 4. Use of depositions

WHAT ARE THE USES OF DEPOSITIONS?
Rule 23 Section 4 is applicable in depositions
pending action, before action and pending appeal.
(Cross reference to Rule 24 Section 6 and 7)
For depositions before action, it may be
used in an action involving the same subject
matter. (Rule 24, Section 6)
For depositions pending action or
pending appeal, depositions may be used at
the trial, upon hearing of a motion, or an
interlocutory proceeding. (Rule 23, Section 1)
Any part or all of a deposition, which is
admissible in evidence, may be used against
any party who was present or represented
during the taking of the deposition or who
had notice thereof in accordance with any
one of the following provisions:
1. deposition of a witness may be
used by any party
a. to contradict or impeach the
deponents testimony as a
witness
b. for any purpose if the court finds
that:
Witness is dead;
Witness resides at a
distance more than 100
km from place of trial or
hearing, or is out of the
Philippines, UNLESS it
appears that absence of
witness is procured by
party offering the
deposition;
Witness is unable to testify
because of age, sickness,
infirmity, or imprisonment;
Party offering the
deposition has been
unable to procure the
attendance of the witness
by subpoena; or
upon application and
notice, that such
exceptional circumstances
exist as to make it
desirable, in the interest of
justice, and with due
regard to the importance of
presenting the testimony of
witnesses orally in open
court, to allow the
deposition to be used.
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2. deposition of any party, or anyone
who at the time of taking the
deposition was an officer, director,
or managing agent of a public or
private corporation may be used
by an adverse party for any purpose
3.
If only part of the deposition is
introduced, adverse party may require that
all of it which is relevant to the part
introduced be introduced, and any party may
introduce any other parts. (Section 4)

Where the witness is available to testify and the
situation is not one of those excepted under
Section 4, his deposition is inadmissible in
evidence and he should be made to testify.

Section5. Effect of Substitution of Parties

WHAT IS THE EFFECT OF SUBSTITUTION OF
PARTIES TO DEPOSITIONS PREVIOUSLY
TAKEN?

Rule 23 Section 5 is applicable in depositions
pending action, before action and pending appeal.
(Cross reference to Rule 24 Section 6 and 7)

Substitution of parties does not affect the right to use
depositions previously taken; and, when an action
has been dismissed and another action involving the
same subject is afterward brought between the same
parties or their representatives or successors in
interest, all depositions lawfully taken and duly filed in
the former action may be used in the latter as if
originally taken therefore. (Section 5)

Section 6. Objections to admissibility

WHEN ARE OBJECTIONS TO ADMISSIBILITY OF
DEPOSITION MADE?
Objection may be made at the trial or hearing to
receive in evidence any deposition or part thereof for
any reason which would require the exclusion of the
evidence if the witness were then present and
testifying. (Section 6) And it is also at trial or hearing
when any party may rebut any relevant evidence
contained in a deposition whether introduced by him
or by any other party. (Section 9)

Section 7. Effect of taking depositions
]
Section 8. Effect of using depositions

Section 9. Rebutting depositions

WHAT IS THE EFFECT OF TAKING
DEPOSITIONS?
A party shall not be deemed to make a person his
own witness for any purpose by taking his deposition.
(Section 7)
Deposition is a mode of discovery and so it is
possible that you will not use the deposition
as part of your evidence and so by taking
depositions, you do not make the deponent
automatically your witness. A party may
refuse to present witness even if his
deposition was taken.
BUT: the introduction in evidence of the
deposition or any part thereof makes the
deponent the witness of the party introducing
the deposition (Section 8) EXCEPTIONS to
Section 8:
1. Deposition is used to impeach or
contradict
2. Deposition of your opponent does
not make him your witness
3. Deposition of an officer of a
corporation (par.(b) Section4)

Defendant may present witness even if it was
the plaintiff who took the witnesss
deposition.

Section 10. Persons before who depositions may
be taken within the Philippines

Section 11. Persons before who depositions may
be taken in foreign countries

BEFORE WHOM MAY DEPOSITIONS BE TAKEN
1. Within the Philippines
a. Any Judge
b. Notary public
c. Any person authorized to administer
oaths if the parties so stipulate in writing
(Section 10)
2. In foreign countries
a. On notice, before a secretary of any
embassy or legation, consul-general,
consul, vice-consul, consular agent
of the Philippines;
Why is an ambassador not
included?
Because an ambassador is
only concerned with political
matters.
b. Before such person or officer as may
be appointed by commission or
under letters rogatory
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c. Any person authorized to administer
oaths if the parties so stipulate.
(Section 11)

Section 12. Commission or letters rogatory

COMMISSION LETTERS ROGATORY
Issued only when necessary or convenient, on
application and notice, and on such terms and with
such direction as are just and appropriate
An instrument issued by
the court of justice or
tribunal to authorize a
person to take
depositions or to do any
other act by authority of
such court or tribunal
Instrument sent in the
name and by authority of
a judge or court to
another judge or court
requesting the latter to
custody examine upon
interrogatories filed in a
case pending in the
former, a witness who is
within the jurisdiction of
the judge or court to
whom such letter is
addressed

Applicable rules of
procedure are those of
the requesting court
Applicable rules of
procedure are those of
the foreign court
requested to act
Resorted to if permission
of the foreign country is
given
Resorted to if the
execution of the
commission is refused in
the foreign country
Leave of court is not
necessary.
Leave of court is
necessary.

Section 13. Disqualification by interest

WHO ARE DISQUALIFIED TO TAKE
DEPOSITIONS?
1. Relative within 6
th
degree of consanguinity
or affinity of any party
2. Employee of any party
3. Counsel of any party
4. Relative within the same degree of any
partys counsel
5. Employee of partys counsel
6. Anyone financially interested in the action

GROUNDS FOR NOT TAKING A DEPOSITION
1. not relevant (Section 1)
2. to protect a party or witness from
annoyance, embarrassment or opposition
(Section 16 and 18)

Autographics, Inc. v. CA, GR No.95863, 1 July
1993
The right of a party to take depositions as means
of discovery is not exactly absolute. This is implicit in
the provisions of the Rules of Court cited by
appellants themselves, sections 16 and 18 of Rule
24. In such instances, these provisions expressly
authorize the court to either prevent the taking of a
deposition or stop one that is already being taken.

Section 15. Depositions upon oral examination;
notice; time and place

Section 16. Orders for the protection of parties
and deponents

PROTECTION ORDERS OF
PARTIES AND DEPONENTS
(Section 16 and Section 28)
MOTION TO
TERMINATE
OR LIMIT
EXAMINATION
(Section 18)
After notice is served for taking a
deposition upon motion
seasonably made by any party or
by the person to be examined and
for good cause shown (which
means it will be done before the
taking of the deposition)
At any time
during the
taking of the
deposition, on
motion or
petition of any
party or of the
deponent and
upon a showing
that the
examination is
being
conducted in
bad faith or in
such manner
as
unreasonably
to annoy,
embarrass, or
oppress the
deponent or
party
The court in which the action is
pending
The court in
which the
action is
pending or the
RTC of the
place where
the deposition
is being taken
Makes an order that:
1. deposition shall not be
taken
2. it may be taken only at
Orders the
officer
conducting the
examination to
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some designated place
other than that stated in
the notice
3. it may be taken only on
written interrogatories or
only upon oral examination
4. certain matters shall not be
inquired into
5. the scope of the
examination shall be held
with no one present except
the parties to the action
and their officers or
counsel
6. that after being sealed, the
deposition shall be opened
only by order of the court
7. that secret processes,
developments, or research
need not be disclosed, or
8. that the parties shall
simultaneously file
specified documents or
information enclosed in a
sealed envelope to be
opened as directed by the
court;
9. or that it shall not be taken
before the officer
designated in the notice
(Section 28)
10. any other order which
justice requires to protect
the party or witness from
annoyance,
embarrassment, or
oppression
cease forthwith
from taking the
deposition, or
may limit the
scope and
manner of the
taking of the
deposition.

If the order made under Section 18 terminates the
examination, it shall be resumed only upon order of
the court in which the action is pending. Upon
demand of the objecting party or deponent, the taking
of the deposition shall be suspended for the time
necessary to make a notice for an order.

In granting or refusing such order, the court may
impose upon either party or upon the witness the
requirement to pay such costs or expenses as the
court may deem reasonable

Section 17. Record of Examination; oath;
objections

Section 18. Motion to terminate or limit
examination

Section 19. Submission to witness; changes;
signing

Section 20. Certification and filing by officer

Section 21. Notice of Filing

Section 22. Furnishing Copies

PROCEDURE FOR TAKING ORAL DEPOSITIONS
1. Record of examination; oath; objections
(Section 17)
The officer before whom the deposition is
to be taken shall put the witness on oath and
shall personally, or by some one acting under
his direction and in his presence, record the
testimony of the witness.
The testimony shall be taken
stenographically unless the parties agree
otherwise.
All objections made at the time of the
examination to the qualifications of the officer
taking the deposition, or to the manner of
taking it, or to the evidence presented, or to
the conduct of any party, and any other
objection to the proceedings, shall be noted
by the officer upon the deposition. Evidence
objected to shall be taken subject to the
objections.
In lieu of participating in the oral
examination, parties served with notice of
taking a deposition may transmit written
interrogatories to the officers, who shall
propound them to the witness and record the
answers verbatim.
2. Submission to witness; changes; signing
(Section 19)
When the testimony is fully transcribed,
the deposition shall be submitted to the
witness for examination and shall be read to
or by him unless such examination and
reading are waived by the witness and by the
parties.
Any changes in form or substance which
the witness desires to make shall be entered
upon the deposition by the officer with a
statement of the reasons given by the
witness for making them.
The deposition shall then be signed by
the witness, unless the parties by stipulation
waive the signing or the witness is ill or
cannot be found or refuses to sign.
If the deposition is not signed by the
witness, the officer shall sign it and state on
the record the facts of the waiver or of the
illness or absence of the witness or the fact
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of the refusal to sign together with the reason
given therefore, if any, and the deposition
may be used fully as though signed, unless a
motion to suppress is filed, the court holds
that the reasons given for the refusal to sign
require rejection of the deposition in whole or
in part.
3. Certification and filing by officer (Section
20)
The officer shall certify on the deposition
that the witness was duly sworn to by him
and that the deposition is a true record of the
testimony given by the witness.
He shall then securely seal the
deposition in an envelope endorsed with the
title of the action and marked Deposition of
(here insert the name of witness) and shall
promptly file it with the court in which the
action is pending or send it by registered mail
to the clerk thereof for filing.
4. Notice of filing (Section 21)
The officer taking the deposition shall
give prompt notice of its filing to all the
parties.
5. Furnishing copies (Section 22)
Upon payment of reasonable charges
therefor, the officer shall furnish a copy of the
deposition to any party or to the deponent.

Section 23. Failure to attend of party giving notice

WHAT HAPPENS IF A PARTY GIVING THE
NOTICE OF THE TAKING OF THE DEPOSITION
FAILS TO ATTEND AND PROCEED WITH THE
TAKING OF DEPOSITION?
If the party giving the notice fails to attend and
proceed therewith and another attends in person or
by counsel pursuant to the notice, the court may
order the party giving the notice to pay such other
party the amount of the reasonable expenses
incurred by him and his counsel in so attend,
including reasonable attorneys fees. (Section 23)

Section 24. Failure of party giving notice to serve
subpoena

HOW ABOUT IF THE PARTY FAILS TO SERVE A
SUBPOENA UPON THE WITNESS?
If another party attends in person or by counsel
because he expects the deposition of that witness to
be taken and the witness fails to attend because of
the failure of the party giving notice to serve a
subpoena upon the witness, then the same
consequence as above. (Section 24)

Section 25 Deposition upon written
interrogatories; service of notice and
interrogatories

Section 26. Officers to take responses and
prepare record

Section 27. Notice of filing and furnishing copies

Section 28. Orders for the protection of parties an
deponents

PROCEDURE FOR DEPOSITION UPON WRITTEN
INTERROGATORIES
1. After service of notice, within 10 days
thereafter, the party so served with the notice
may serve cross-interrogatories upon the
party proposing to take the deposition.
(Section 24)
2. Within 5 days thereafter, the party proposing
to take the deposition may serve re-direct
interrogatories upon a party who has served
cross-interrogatories. (Section 24)
3. Within 3 days after being served with re-
direct interrogatories, a party may serve
recross-interrogatories upon the party
proposing to take the deposition. (Section 24)
4. A copy of the notice and copies of all
interrogatories served shall be delivered to
the officer designated in the notice who shall
proceed promptly, in the manner provided by
sections 17, 19, and 20 of this Rule, to take
the testimony of the witness in response to
the interrogatories and to prepare, certify,
and file or mail the deposition, attaching
thereto the copy of the said notice and the
interrogatories received by him. (Section 26)
5. When a deposition upon interrogatories is
filed, the officer taking it shall promptly give
notice thereof to all the parties, and may
furnish copies to them or to the deponent
upon payment of reasonable charges
therefore. (Section 27)

Section 29. Effect of errors and irregularities in
depositions

WHAT ARE THE EFFECTS OF ERRORS AND
IRREGULARITIES IN THE DEPOSITIONS?
1. As to notice waived unless written
objection is promptly served upon the party
giving the notice
2. As to disqualification of officer waived
unless made before the taking of the
deposition begins or as soon thereafter as
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the disqualification becomes known or could
be discovered with reasonable diligence
3. As to competency or relevancy of
evidence - NOT waived by failure to make
them before or during the taking of the
deposition, unless ground is one which might
have been obviated or removed if presented
at that time
4. As to oral examination and other
particulars - Errors occurring at the oral
examination in the manner of taking the
deposition, in the form of questions and
answers, in oath or affirmation, or in conduct
of parties, and errors of any kind which might
be obviated, removed, cured if promptly
prosecuted are waived unless reasonable
objection is made at the taking of the
deposition.
5. As to form of written interrogatories -
waived unless served in writing upon the
party propounding them within the time
allowed for serving succeeding cross or other
interrogatories and within 3 days after the
service of the last interrogatories authorized.
6. As to manner of preparation - errors as to
manner in which the testimony is transcribed
or the deposition is prepared, signed,
certified, sealed, indorsed, transmitted, filed
or otherwise dealt with by the officer are
waived unless a motion to suppress the
deposition or some part of it is made with
reasonable promptness after such defect is,
or with due diligence might have been,
ascertained. (Section 29)

RULES ON OBJECTIONS
1. Objections to direct interrogatories can be
made within 10 days.
2. Objections to cross interrogatories can be
made within 5 days.
3. Objections to re-direct interrogatories can be
made within 3 days.
4. Objections to re-cross interrogatories can be
made within 3 days.

Diman v. Hon. Alumbres, G.R. No. 131466, 27 Nov
1998
A trial court has no discretion to determine what
the consequences of a party's refusal to allow or
make discovery should be; it is the law which makes
that determination; and it is grave abuse of discretion
for the Court to refuse to recognize and observe the
effects of that refusal as mandated by law.

RULE 24
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

DEPOSITIONS BEFORE ACTION DEPOSITIONS PENDING APPEAL
Who can
apply?
A person who desires to perpetuate his own
testimony or that of another person regarding any
matter that may be cognizable in any court of the
Philippines (Section 1)

Any person can perpetuate their
testimony for use in the event of further
proceedings in the said court (Section 7)
What to file? a verified petition, contents of which are:
The petition shall be entitled in the name of the
petitioner and shall show:
1. that the petitioner expects to be a party to an
action in a court of the Philippines but is
presently unable to bring it or cause it to be
brought;
2. the subject matter of the expected action and
his interest therein;
3. the facts which he desires to establish by the
proposed testimony and his reasons for
desiring to perpetuate it;
4. the names or a description of the persons he
expects will be adverse parties and their
addresses so far as known; and
5. the names and addresses of the persons to
be examined and the substance of the
motion upon notice and service,
contents of which are:
1. the names and addresses of the
persons to be examined and
2. the substance of the testimony
which he expects to elicit from
each; and
3. the reason for perpetuating their
testimony (Section 7)

QuickTime and a
Page 47 of 289
testimony which he expects to elicit from
each, and
6. shall ask for an order authorizing the petitioner
to take the depositions of the persons to be
examined named in the petition for the
purpose of perpetuating their testimony.
(Section 1 & 2)
Where to
apply?
in the court of the place of the residence of any
expected adverse party (Section 1)
the court in which the judgment was
rendered (Section 7)
When to file? Before the action. Depositions before action is only
applicable in civil cases.
At any time before judgment becomes
final:
1. If an appeal has been taken from a
judgment of a court, including the
Court of Appeals in proper cases,
or
2. before the taking of an appeal if
the time therefore has not expired
(Section 7)
Court order
and
examination
If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the depositions to be taken, which shall:
1. designate or describe the persons whose deposition may be taken and
2. specify the subject matter of the examination and
3. specify whether the depositions shall be taken upon oral examination or written
interrogatories. (Section 4 & 7)

RULE 25
NTERROGATORIES TO PARTIES

Section 1 Interrogatories to parties; service
thereof

WHO CAN APPLY?
ANY PARTY desiring to elicit material and relevant
facts FROM ANY ADVERSE PARTY shall file and
serve upon the latter written interrogatories to be
answered by the party served.
If the person served is a private or public corporation,
partnership or association, then it will be answered by
any officer competent to testify in its behalf. (Section
1)

DO YOU NEED LEAVE OF COURT FOR WRITTEN
INTERROGATORIES?
DEPENDS. If an answer has NOT YET BEEN served,
you need leave of court, but if the answer HAS BEEN
served, then you do not need leave of court. (Section
1, cross refer to Rule 23 Section 1)

Interrogatories and the answers thereto should be
filed in court and served on adverse parties, so
that the answers may constitute judicial
admissions. (Rule 129, Section 4)

INTERROGATORIES BILL OF
PARTICULARS
Disclosure of matters of
proof
Disclosure only of
matters which define the
issues
May be made part of the
records as evidence
Become a part of the
pleadings

Section 2. Answer to interrogatories

WHAT IS THE FORM OF AN ANSWER TO
INTERROGATORIES?
1. answered fully in writing and
2. signed and sworn to by the person making
them. (Section 2)

Section 3. Objections to interrogatories

WHEN DO YOU MAKE OBJECTIONS TO
INTERROGATORIES?
Objections to any interrogatories may be presented to
the court within ten (10) days after service thereof,
with notice as in case of a motion; and answers shall
be deferred until the objections are resolved, which
shall be set at an early time, as practicable. (Section
3)

15 days to answer. 10 days to object. In
case objection is denied, you still have 5 days
to file an answer.
Criminal Law Summer Reviewer

Section 4. Number of interrogatories

HOW MANY INTERROGATORIES CAN YOU FILE?
No party may, without leave of court, serve more than
one set of interrogatories to be answered by the
SAME party. (Section 4)

Section 5. Scope and use of interrogatories

Section 6. Effect of failure to serve written
interrogatories

WHAT IS THE EFFECT OF FAILURE TO SERVE
WRITTEN INTERROGATORIES?

A party not served with written interrogatories may not
be
1. compelled by the adverse party to give
testimony in open court, or
2. to give a deposition pending appeal.

UNLESS thereafter allowed by the court
1. for good cause shown and
2. to prevent a failure of justice (Section 6)

WHAT IS THE EFFECT TO FAILURE TO ANSWER
INTERROGATORIES?
Case may be dismissed or a judgment by default may
be given

Depositions
under Written
upon Written
Interrogatories
(Rule 23)
Interrogatories
to Parties
(Rule 25)
Procedure Direct, cross,
redirect,
recross. You
just serve
QUESTIONS
File and serve
questions and
the party has to
answer them
Deponents Any person,
either party or
witness
Only a party to
the case,
particularly the
adverse party
Coverage Any matter as
long as relevant
and not
privileged
Same (Rule 25,
Section 5)
Uses Rule 23, Section
4
Same (Rule 25,
Section 5)
Interrogatories No fixed time 15 days to
answer unless
extended or
reduced by the
court
Intervention
by the Court
With
intervention of
the office who is
authorized to
take the
deposition
No intervention
since
interrogatories
are directed to
the party himself

RULE 26
ADMISSION BY ADVERSE PARTY

Section 1. Request for admission

Purpose of written request for admission
To expedite trial and relieve the parties of the costs of
proving facts which will not be disputed on trial and
the truth of which can be ascertained by reasonable
inquiry

What request may include:
1. Admission of the genuineness of any material
and relevant document described in and
exhibited with the request
2. Admission of the truth of any material and
relevant matter of fact set forth in the request
3. Under this rule, a matter of fact not related to
any documents may be presented to the
other party for admission or denial

Distinguished from Rule on Actionable
Documents
A request for admission is proper when the
genuineness of an evidentiary document is sought
to be admitted. If not denied under oath in
accordance with Section 2, its genuineness it
deemed admitted. If the document is actionable,
the original or a copy should be attached to the
complaint, or copied therein, and its genuineness
and due execution is deemed impliedly admitted
unless specifically denied under oath by the
adverse party.

Po v. Court of Appeals 164 SCRA 668 (1998)
A request for admission is not intended to merely
reproduce or reiterate the allegations of the
requesting partys pleading but should set forth
relevant evidentiary matters of fact, or documents
described in and exhibited with the request, whose
purpose is to establish said partys cause of action or
defense.

Distinguished from Written Interrogatories
Page 48 of

Section 2. Implied admission
The motion for extension of time to answer the
request for admission should be served on the
adverse party but need not be set for hearing.
Objections on the ground of irrelevancy or impropriety
of the matter requested shall be promptly submitted to
the court for resolution.
Effect of failure to make a reply to a request for
admission
Each of the matters of which an admission is
requested is deemed admitted. If facts are admitted or
deemed admitted, party may move for summary
judgment.

Remedy of the party
File a motion to be relieved of the consequences of
the implied admission. The amendment of the
complaint per se cannot set aside the legal affects of
the request for admission since its materiality has not
been affected by the amendment.

Section 3. Effect of admission

Use of the admission
An admission under this section is for the purpose of
the pending action only and cannot be used in other
proceedings.

Section 4. Withdrawal.

Section 5. Effect of failure to file and serve
request for admission.

If an adverse party denies a fact within his personal
knowledge, a party may present evidence regarding
said fact even if he failed to file a request for
admission.

RULE 27
PRODUCTION OR INSPECTION OF DOCUMENTS
OR THINGS

Section 1. Motion for production or inspection;
order

Purpose of the rule
This rule is not intended for use as a dragnet or any
fishing expedition. This rule is also not intended to
open all of a partys records to other party on vague
chance than they might contain some material
relevant to some theory advanced by the other party.

Rule only applicable to: a pending action and the
documents or things subject of the motion must be
only those within the possession, control, or custody
of a party

Limitations of the Order
1. Documents should not be privileged
2. Documents constitute or contain evidence
material to any matter involved in the action,
and which are in his (the party ordered)
possession, custody, or control

Contents of the Order
a. Shall specify the time, place and manner of
making the inspection and taking copies AND
b. May prescribe such terms and conditions
which are just.
Paragraph (b) applies to Real/Personal
property

Distinguished from Subpoena Duces Tecum
PRODUCTION OR
INSPECTION OF
DOCUMENTS OR
THINGS
SUBPOENA DUCES
TECUM
Essentially a mode of
discovery
Means of compelling
production of evidence
The Rules is limited to the
parties to the action
May be directed to a
person whether a party
or not
The order under this Rule
is issued only upon motion
with notice to the adverse
party
May be issued upon an
ex parte application

WRITTEN
INTERROGATORIES
REQUEST FOR
ADMISSSION
Adverse party or witness Adverse party only
NOT required to deny or
admit anything
Required to admit or
deny something
Written request must be
filed in court and served on
the adverse party
Written request must
be filed in court and
served on the adverse
party
Must be objected within 10
days (Rule 25)
Must be objected
within 15 days
Page 49 of
RULE 28
PHYSICAL AND MENTAL EXAMINATION OF
PERSONS

Section 1. When examination may be ordered

This applies only to parties, NOT witnesses.

Examples of Mental or Physical Condition of a
party in controversy:
1. In an action to recover damages for personal
injury, the physical condition of the plaintiff in
controversy
2. In a petition for guardianship on the ground of
insanity, the mental condition of the ward is in
controversy

Section 24(b), Rule 130 Since the results of the
examination are intended to be made public, the
same are not covered by the physician-patient
privilege.

Section 2. Order for examination

The order for examination may be made only:
on motion for good cause shown, and
upon notice to the party to be examined and to all
other parties, and shall specify the time, place,
manner, conditions and scope of the examination
and
the person or persons by whom it is to be made.

What is good cause
When the ends of justice so require and the
examination may be made without danger to the
partys life or health or the infliction upon him of
serious pain.

Section 3. Report of findings

Discretion of Court
The Court exercises full discretion in regulating
physical and mental examinations of a party to a
controversy. The defendant seeking physical
examination of a plaintiff has no absolute right to
choose his own physician. The Court must first
determine whether a physical examination is
necessary, then determine the physician who shall
conduct the examination.

Section 4. Waiver of privilege.

RULE 29
REFUSAL TO COMPLY WITH MODES OF
DISCOVERY

Section 1. Refusal to answer. .

Refusal to answer
If a party or other deponent refuses to answer any
question upon oral examination, the examination may
be
completed on other matters or
adjourned
as the proponent of the question may prefer.

The proponent may apply to the court for an order to
compel an answer. The court may then order:
i. The refusing party or his counsel to pay the
expenses incurred in obtaining the order,
including the attorneys fees (if it finds the
refusal to answer without substantial
justification)
ii. The proponent or his counsel to pay the
expenses incurred in opposing the
application, including attorneys fees (if it finds
the application to be without substantial
justification)

Where to file for the order to compel
RULE 23 Depositions pending actions application
for an order must be filed with the court of the place
where the deposition is being taken

RULE 25 Interrogatories to parties application for
an order must be filed with the court where the action
is pending

Remedies
1. Complete other matters
2. Adjourn
3. Apply to court for order

Section 2. Contempt of court

Contempt of court:
If a party or other witness:
refuses to be sworn or
refuses to answer any question after being
directed to do so by the court of the place in
which the deposition is being taken

Section 3. Other consequences

Other consequences
If a party/officer or managing agent of a party refuses
to obey an order requiring him:
Page 50 of
a. To answer designated questions
b. To produce a thing for inspection or to permit
entry upon property
c. To submit to a physical or mental examination

The court may order:
a. That the matters regarding which the
questions were asked, or the character of
the land or the thing, or the physical and
mental condition of the party be taken to be
established.
b. The disallowance of the disobedient partys
claims
c. The prohibition of the disobedient party to
present evidence. The striking out of the
pleadings or parts thereof
d. The dismissal of the action or parts thereof
d. Rendering judgment by default against the
disobedient party OR
e. The arrest of any party or agent EXCEPT in
disobeying an order to submit to a physical
or mental examination

If a party refuses to attend or serve answers, the
court may:
a. Strike out all or any part of any pleading of
that party.
b. Dismiss the action or any part thereof.
c. Enter a judgment by default against that
party, OR/AND
d. Order that party to pay reasonable expenses
incurred, including attorneys fees.

In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party or
agent of a party for disobeying any of such orders,
EXCEPT an order to submit to a physical or mental
examination.

NOTE: Orders enumerated above are NOT exclusive.

SANCTIONS:
1. Pay expenses Arrest (Section3 par.(d))
2. (Section1)
3. Contempt (Section2)
4. Facts will be deemed established (Section3
par.(a))
5. Prohibiting from introducing evidence
(Section3 par.(b))
6. Affect disposition of the case (Section3
par.(c))

Section 4. Expenses on refusal to admit

Failure of party to attend or serve answer
If a party or an officer or managing agent of a party
willfully:
fails to appear before the officer who is to
take his deposition, after being served with a
proper notice, or
fails to serve answers to interrogatories
submitted under Rule 25 after proper service
of such interrogatories,

The court on motion and notice, may:
strike out all or any part of any pleading of
that party, or
dismiss the action or proceeding or any part
thereof, or
enter a judgment by default against that party,
and
in its discretion, order him to pay reasonable
expenses incurred by the other, including
attorneys fees.

Insular Life Assuarance Co., Ltd. v. CA 238 SCRA
88 (1994)
The matter of how, and when, the above
sanctions should be applied is one that primarily rests
on the sound discretion of the court where the case
pends, having always in mind the paramount and
overriding interest of justice. For while the modes of
discovery are intended to attain the resolution of
litigations with great expediency, they are not
contemplated, however, ultimately to be of injustice.

Section 6. Expenses against the Republic of the
Philippines

RULE 30
TRIAL

TRIAL
It is the judicial process of investigating and
determining the legal controversies, starting with the
production of evidence by the plaintiff and ending with
his closing arguments

GENERAL RULE: There should be a trial when an
issue exists. A decision should not be made without
trial

EXCEPTIONS:
1. Judgment on the Pleading (Rule 34)
2. Summary Judgment (Rule 35)
3. Judgment on Compromise
4. Judgment by Confession
5. Judgment with Prejudice (Rule 17)

Page 51 of
Section 1. Notice of trial

Notice at least 5 days before the trial date is a part of
procedural due process.

Section 2. Adjournments and postponements

Section 3. Requisites of motion to postpone trial
for absence of evidence

There must be an affidavit showing:
(1) materiality or relevance of such
evidence; and
(2) due diligence in procuring it.

If the adverse party admits the facts for which
evidence is to be presented, the trial will not be
postponed.

Section 4. Requisites of motion to postpone trial
for illness of party or counsel

REQUISITES
An affidavit showing that:
1. That the presence of the party or counsel at
the trial is indispensable; and
2. That the character of his illness is such as to
render non-attendance excusable.

Section 5. Order of trial

Plaintiff presents evidence
in support of his complaint

Reverse Order of Trial
In this situation, the defendant presents evidence
ahead of the plaintiff

When Reverse Order of Trial Proper
If the defendant in his/her answer relies upon an
affirmative defense, a reverse order of trial is proper

Section 6. Agreed statement of facts

This is known as STIPULATION OF FACTS and is
among the purposes of a pre-trial. The parties may
also stipulate verbally in open court. Such
stipulations are binding unless relief therefrom is
permitted by the court on good cause shown, such as
Defendant presents
evidence to support his
defense/counterclaim/c
ross-claim/third party
complaint
Defendant files:
demurrer to
evidence
Third party
defendant
presents
evidence, if any
Court grants
motion:
renders
dismissal
Court
denies
motion,
continues
with hearing
After presentation
of evidence;
1.oral arguments;
2.submission of
memoranda
Rebuttal evidence
by parties

DECISION
Page 52 of
error or fraud. But counsel cannot stipulate on what
their respective EVIDENCE consists of and ask that
judgment be rendered on the basis of such
stipulation.

NOTE: Stipulations of facts are not permitted in
actions for ANNULMENT OF MARRIAGE and for
LEGAL SEPARATION.

Section 7. Statement of judge

Section 8. Suspension of actions

ART. 2030 OF THE CIVIL CODE. EVERY CIVIL
ACTION OR PROCEEDING SHALL BE
SUSPENDED
1. If willingness to discuss a possible
compromise is expressed by one or both
parties; or
2. 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 the offer.

Section 9. Judge to receive evidence; delegation
to clerk of court

GENERAL RULE: The judge must himself personally
receive and resolve the evidence of the parties.

REQUSITES ON VALID DELEGATION OF POWER
TO RECEIVE
(a) The delegation may be made only in defaults
or ex parte hearings, or an agreement in
writing by the parties.
(b) The reception of evidence shall be made only
by the clerk of that court who is a member of
the bar.
(c) Said clerk shall have no power to rule on
objections to any question or to admission of
evidence or exhibits; and
(d) He shall submit his report and transcripts of
the proceedings, together with the objections
to be resolved by the court, within 10 days
from the termination of the hearing.

RULE 31
CONSOLIDATION OR SEVERANCE

CONSOLIDATION
Involves several actions having a common
question of law or fact which may be jointly tried.

SEVERANCE
Contemplates a single action having a number of
claims, counterclaims, cross-claims, third-party
complaints, or issues which may be separately
tried.

PURPOSE
To avoid multiplicity of suits, guard against oppression
or abuse, prevent delay, clear congested dockets,
simplify the work of the Trial Court and save
unnecessary costs and expenses.

Section 1. Consolidation

GENERAL RULE: Consolidation is discretionary
upon the court.

EXCEPTIONS: Consolidation becomes a matter of
duty when:
1. If the cases are pending before the same
judge; OR
2. If filed with different branches of the same
RTC and one of such cases has not been
partially tried.

Consolidation of cases on appeal and assigned to
different divisions of the SC and the CA is also
authorized. Generally, the case which was appealed
later and bearing the higher docket number is
consolidated with the case having the lower docket
number.

REQUISITES FOR CONSOLIDATION:
1. Actions which involves a common question of
law or fact; and
2. The actions are pending before the same
court.
If filed with different courts, authorization
from the SC is necessary.

3 WAYS OF CONSOLIDATING CASES:
1. By recasting the cases already instituted,
conducting only one hearing and rendering
only one decision;
2. By consolidating the existing cases and
holding only one hearing and rendering only
one decision; and
3. By hearing only the principal case and
suspending the hearing on the others until
judgment has been rendered in the principal
case. (TEST-CASE METHOD)

Section 2. Separate trials on any claim, cross-
claim, etc.

Page 53 of
When the separate trial of claims is conducted by the
court under this section, it may render separate
judgments on each claim.

RULE 32
TRIAL BY COMMISSIONER

Section 1. Reference to Commissioner by consent
of both parties

Reference to a commissioner may be had by the
written consent of both parties.

An irregularity in the appointment of a commissioner
must be seasonably raised in the trial court where the
defect could still be remedied. It can be waived by
consent of the parties expressly or impliedly.

Section 2. Cases when reference by motion of one
of the parties or motu proprio

SITUATIONS WHEN REFERENCE TO A
COMMISSIONER MAY BE MADE ON MOTION
1. Trial requires examination of a long account of
either side
2. Taking of an account is necessary for the
information of the court before judgment or for
carrying a judgment order into effect
3. Question of fact, other than upon the pleadings,
arises upon motion or otherwise, in any stage of
the case

Section 3. Order of reference; powers of the
Commissioner

Order may specify or limit the powers of the
Commissioner.

POWERS OF THE COMMISSIONER
1. Report only upon particular issues, or to do or
perform particular acts, or to receive and report
evidence only
2. Exercise the power to regulate the proceedings
in every hearing before him and to do all acts
and take all measures necessary or proper for
the efficient performance of his duties
3. Issue subpoenas and subpoenas duces tecum
4. Swear witnesses
5. Unless otherwise provided in the order of
reference, he may rule upon the admissibility of
evidence

Section 4. Oath of Commissioner before he enters
into his duties

Section 5. Proceedings before Commissioner
COMMISSIONER

Section 6. Failure of parties to appear before
Commissioner

If a party fails to appear at the time and place
appointed, the commissioner may proceed ex parte
or, in his discretion, adjourn the proceedings to a
future day, giving notice to the absent party or his
counsel of the adjournment.

Section 7. Refusal of witness to obey subpoena
issued by Commissioner

Disobedience to a subpoena issued by the
commissioner is deemed contempt of the court which
appointed the latter.

Section 8. Commissioner shall avoid delays

Section 9. Report of Commissioner

Section 10. Notice to parties of the filing of report

UPON FILING OF THE REPORT OF THE
COMMISSIONER:
1. The parties shall be notified by the clerk; AND
2. The parties shall be allowed 10 days within
which to object to the findings of the report.

Objections to the report based upon grounds which
were available to the parties during the proceedings
before the Commissioner shall not be considered by
the court, UNLESS they were made before the
Commissioner.

Section 11. Hearing upon report

Section 12. Stipulations as to findings

When the parties stipulate that a commissioners
findings of fact shall be final, only questions of law
shall thereafter be considered.

Section 13. Compensation of Commissioner

A person to whom a case pending in court is
referred, for him to take testimony, hear the parties
and report thereon to the court, and upon whose
report, if confirmed, judgment is rendered; includes
a referee, an auditor and an examiner.
Page 54 of

RULE 33
DEMURRER TO EVIDENCE

Section 1. Demurrer to evidence

DEMURRER TO
EVIDENCE
MOTION TO DISMISS
It is presented after the
plaintiff has rested its
case.
Presented before a
responsive pleading
(answer) is made by the
defendant.
The ground is based on
insufficiency of evidence.
It may be used on any of
those enumerated in
Rule 16.
If the motion is denied,
the defendant may
present his evidence.
If the motion is denied,
defendant may file his
responsive pleading.
If the motion is granted,
the complaint is
dismissed. The remedy
of the plaintiff is to
APPEAL.
If the motion is granted,
the complaint is
dismissed and
depending on the
ground, the complaint
may be re-filed.

2 SCENARIOS:

MOTION DENIED MOTION GRANTED BUT
REVERSED ON APPEAL
Movant shall have the
right to present his
evidence.
Movant is deemed to
have waived his right to
present evidence. The
decision of the appellate
court will be based only
on the evidence of the
plaintiff, as the defendant
loses his right to have the
case remanded for
reception of his
evidence.
Denial is interlocutory.
Sec. 1, Rule 36 (that
judgment should state
clearly and distinctly the
facts and the law on
which it is based), will not
apply. The denial is NOT
appealable.
Order of the court is an
ADJUDICATION ON
THE MERITS, hence, the
requirement in Section
1, Rule 36 should be
complied with.

CIVIL CASES CRIMINAL CASES
Defendant need not ask
for leave of court.
May be filed with or
without leave of court.
Leave of court is
necessary so that the
accused could present
his evidence if the
demurrer is denied.
If the court finds plaintiffs
evidence insufficient, it
will grant the demurrer by
dismissing the complaint.
The judgment of
dismissal is appealable
by the plaintiff. If plaintiff
appeals and judgment is
reversed by the appellate
court, it will decide the
case on the basis of the
plaintiffs evidence with
the consequence that the
defendant already loses
his right to present
evidence; no res judicata
in dismissal due to
demurrer.
If the court finds the
prosecutions evidence
insufficient, it will grant
the demurrer by
rendering judgment
acquitting accused.
Judgment of acquittal is
not appealable; double
jeopardy sets in.
If court denies demurrer,
defendant will present his
evidence.
If court denies the
demurrer:
a. if demurrer was with
leave, accused may
present evidence
b. if the demurrer was
without leave, accused
can no longer present his
evidence and submits
the case for decision
based on the
prosecutions evidence.
If court denies demurrer,
defendant will present his
evidence.
If court denies the
demurrer:
a. if demurrer was with
leave, accused may
present evidence
b. if the demurrer was
without leave, accused
can no longer present his
evidence and submits
the case for decision
based on the
prosecutions evidence.

DEMURRER TO EVIDENCE
It is made by the defendant after the plaintiff has
completed the presentation of his evidence where the
defendant moves for dismissal on the ground that
upon the facts and the law, the plaintiff has shown no
right to relief.

JUDGMENT ON DEMURRER TO EVIDENCE
It is a judgment rendered by the court dismissing a
case upon motion of the defendant, made after
Page 55 of
plaintiff has rested his case, on the ground that upon
the facts presented by the plaintiff and the law on the
matter, plaintiff has not shown any right to relief.

RULE 34
JUDGMENT ON THE PLEADINGS

JUDGMENT ON THE PLEADINGS
It is a judgment rendered by the court dismissing a
case upon motion of the defendant, made after
plaintiff has rested his case, on the ground that upon
the facts presented by the plaintiff and the law on the
matter, plaintiff has not shown any right to relief.

Section 1. When judgment on the pleadings is
proper

A judgment on the pleadings must be on motion of the
claimant. However, if at pre-trial, the court finds that a
judgment on the pleadings is proper, it may render
such judgment motu proprio.

By moving for judgment on the pleading, plaintiff
waives his claim for unliquidated damages. Claim for
such damages must be alleged and proved.

GROUNDS:
1. Answer fails to tender an issue because of:
a. general denial of the material
allegations of the complaint;
b. insufficient denial of the material
allegations of the complaint or
2. Answer admits material allegations of the
adverse partys pleading.

ACTIONS WHERE THE MATERIAL FACTS
ALLEGED IN THE COMPLAINT MUST ALWAYS BE
PROVED

1. Declaration of nullity of marriage
2. Annulment of marriage
3. Legal separation

JUDGMENT ON THE
PLEADINGS
JUDGMENT BY
DEFAULT
The defendant
answered, but did not
tender an issue or
admitted the material
allegations in the
complaint.
The defendant did not file
an answer.
Evidence is not received
as the same is based on
Evidence is received.

the pleadings alone.
Decision is based on the
allegations in the
pleadings.
Decision is based on the
evidence presented.

MOTION TO DISMISS MOTION FOR
JUDGMENT ON THE
PLEADINGS
Filed by defendant to a
complaint, counterclaim,
cross-claim or third-party
complaint.
Filed by the plaintiff if the
answer raises no issue.
If the complaint states no cause of action, a motion to
dismiss should be filed and no a motion for judgment
on the pleading.

Falcasantos v. How Suy Ching 91 Phil 456 (1952)
One who prays for judgment on the pleadings
without offering proof as to the truth of his own
allegations and without giving the opposing party an
opportunity to introduce evidence, must be
understood to ADMIT all MATERIAL and RELEVANT
ALLEGATIONS of the opposing party and to rest his
motion for judgment on those allegations taken
together with such of his own as are admitted in the
pleadings.

RULE 35
SUMMARY JUDGMENTS

SUMMARY JUDGMENT
One granted by the court for the prompt disposition of
civil actions wherein it clearly appears that there
exists no genuine issue or controversy as to any
material fact.

GENUINE ISSUE
It is an issue of fact which calls for the presentation of
evidence as distinguished from an issue which is
sham, fictitious, contrived, and patently unsubstantial
so as not to constitute a genuine issue for trial.

May be asked for by a party seeking to
recover upon a claim, counterclaim, cross-
claim, or to obtain a declaratory relief.

Although Rule does not specifically provide,
also unavailable in actions for annulment of a
and declaration of nullity of marriage, and for
legal separation since Section 1 refers to
actions to recover upon a claim, or to
recover a debt or a liquidated demand for
money, or to obtain declaratory relief.
Page 56 of

Section 1. Summary judgment for claimant

May be filed at any time after the pleading in answer
thereto has been served.

Section 2. Summary judgment for defending party

May be file at any time.

Section 3. Motion and proceedings thereon.

The motion shall be served at least 10 days before
the time specified for the hearing. The adverse party
may serve opposing affidavits, depositions, or
admissions at least 3 days before the hearing. After
the hearing, the judgment sought shall be rendered
forthwith if the pleadings, supporting affidavits,
depositions, and admissions on file, show that, except
as to the amount of damages, there is no genuine
issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.

Section 4. Case not fully adjudicated on motion.

The trial shall be conducted on the controverted facts
only.

Section 5. Form of affidavits and supporting
papers

Section 6. Affidavits in bad faith

Should it appear to its satisfaction at any time that any
of the affidavits presented pursuant to this Rule are
presented in bad faith, or solely for the purpose of
delay, the court shall forthwith order the offending
party or counsel to pay to the other party the amount
of reasonable expenses which the filing of the
affidavits caused him to incur, including attorneys
fees. It may, after hearing, further adjudge the
offending party or counsel guilty of contempt.

BASES OF SUMMARY JUDGMENT
1. Affidavits made on personal knowledge.
2. Depositions of the adverse party or a third
party under Rule 23
3. Admissions of the adverse party under Rule
26.
4. Answers to interrogatories under Rule 25; all
intended to show that:
a. there is no genuine issue as to any
material fact, except damages which
must always be proved; and
b. the movant is entitled to a judgment
as a matter of law.
c.
Vergara v. Suelto 156 SCRA 753 (1987)
Even if the answer does tender an issue, and
therefore a judgment on the pleadings is NOT proper,
a summary judgment may still be rendered if the
issues tendered are NOT genuine, are sham,
fictitious, contrived, set-up in bad faith, and patently
unsubstantial.

Mallilin v. Castillo 156 SCRA 753 (2000)
Where the pleadings under a genuine issue i.e.
an issue of fact the resolution of which calls for the
presentation of evidence, as distinguished from an
issue which is sham, contrived, set-up in bad faith, or
patently unsubstantial, summary judgment is not
proper.

Velasco v. CA 156 SCRA 753 (2005)
Trial courts are authorized to grant relief by
summary judgment. This is intended to expedite or
promptly dispose of cases where the facts appear
undisputed and certain from the pleading admissions
and affidavits. This rule does not vest in the court
summary jurisdiction to try the issue on pleadings and
affidavits but gives the court limited authority to enter
summary judgment only if it clearly appears that there
is no genuine issue of material fact.

SUMMARY
JUDGMENT
JUDGMENT
ON THE
PLEADINGS
JUDGMENT
BY DEFAULT
(Rule 9)
Based on the
pleadings,
depositions,
admissions, and
affidavits.
Based solely
on the
pleadings
Based on the
complaint and
evidence, if
presentation is
required.
Available to both
plaintiff and
defendant.
Generally
available only
to the plaintiff,
unless the
defendant
presents a
counterclaim.

Available to
plaintiff.

There is no
genuine issue
between the
parties, i.e. there
may be issues
but these are
irrelevant.
The answer
fails to tender
an issue or
there is an
admission of
material
allegations.
No issues as
no answer is
filed by the
defending
party.
10-day notice
required.
3-day notice
required.
3-day notice
rule applies.
May be
interlocutory or
On the merits. On the merits.
Page 57 of
on the merits.
Available only in
actions to
recover a debt,
or for a
liquidated sum
of money or for
declaratory
relief.
Available in any
action except
annulment of
marriage or
legal
separation
cases.
Available in any
action except
annulment of
marriage or
legal
separation
cases.

RULE 36
JUDGMENTS, FINAL ORDERS AND ENTRY
THEREOF

JUDGMENT
Final consideration and determination by a court of
the rights of the parties, upon matters submitted to it
in an action or proceeding.

Judgment is the result, or the dispositive part of the
decision while the opinion gives the grounds for the
decision.

DATE OF FINALITY OF JUDGMENT/ORDER
Date of the finality of the judgment or final order shall
be deemed to be the date of its entry. The judgment
or final order shall be entered by the clerk in the book
of entries of judgments if no appeal or motion for new
trial or reconsideration is filed within 15 days.

Section 1. Rendition of judgments and final orders

REQUISITES OF A JUDGMENT
1. It should be in writing, personally and directly
prepared by the judge;
2. Must state clearly and distinctly the facts and
the law on which it I based; and
3. It should contain a dispositive and should be
signed by the judge and filed with the clerk of
court

PARTS OF A JUDGMENT
1. Opinion of the court (findings of fact and
conclusions of law)
2. Disposition of the case (dispositive portion)
3. Signature of the judge

JUDGMENT UPON THE MERITS
Judgment rendered after consideration of the
evidence submitted by the parties during the trial of
the case.

PROMULGATION
The process by which a decision is published,
officially announced, made known to the public or
delivered to the clerk of court for filing, coupled with
notice to the parties or their counsel.

MEMORANDUM DECISION
The judgment or final resolution of the appellate court
may adopt by reference the findings of facts and
conclusions of law contained in the decision of the
trial court.

A judgment based on a compromise otherwise known
as JUDICIAL COMPROMISE has the force of law
and is conclusive between parties. It is NOT
appealable.

The power to amend a judgment is inherent to the
court before judgment becomes final and executory.

RULE OF IMMUTABILITY OF JUDGMENT
A final judgment cannot be modified, even if the
purpose is to correct perceived erroneous conclusions
of the facts or law.

EXCEPTIONS:
1. To make corrections of clerical errors, not
substantial amendments, as by an
amendment nunc pro tunc;
2. To clarify an ambiguity which is borne out by
and justifiable in the context of the decision;
3. Where the judgment is void; or
4. In judgments for support, it can always be
amended from time to time.

JUDGMENT NON PRO TUNC
A judgment intended to enter into the records acts
which had already been done, but which do not
appear in the records.

NOTE: A JUDGMENT is considered RENDERED: the
filing of the signed decision constitutes the rendition of
a judgment. This includes an amended decision
because an amended decision is a distinct and
separate judgment and must follow the established
procedural rule.

NOTE: Attack of judgment maybe direct or collateral

Direct attack
a. before finality
1.motion for new trial or reconsideration
2.appeal
b. after finality
1. relief from judgment, Rule 38
2. annulment of judgment, Rule 47

Page 58 of

PROMULGATION OF JUDGMENT

Section 2. The date of finality of the judgment or
final order shall be deemed to be the date of its
entry if no appeal or MNT or MR

The date of finality of the judgment or final order shall
be the date of its entry.

Section 3. Judgment for or against one or more of
several parties
Section 4. Several judgments

SEVERAL JUDGMENT
Judgment rendered by a court against one or more
several defendants and not against all of them leaving
the action to proceed against the others.

Several judgments is proper where the liability of each
party is clearly separable and distinct from his co-
parties such that the claims against each of them
could have been the subject of separate suits, and the
judgment for or against one of them will not
necessarily affect the other. It is not proper in actions
against solidary debtors.

Section 5. Separate judgments

SEPARATE JUDGMENT
Judgment rendered to dispose of one of the several claims
for relief presented in an action, made at any stage, upon a
determination of the issues material to a particular claim
and all counterclaims arising out of the transaction or
occurrence which is the subject matter of the claim, which
terminates such claim. Action shall proceed as to other
claims.
If no appeal
is taken or
did not avail
of remedies,
judgment
becomes final
and
executory
Court
maintains
decision
Court grants
motion:
1.modifies
decision; or
2.grants new
trial
Accepts decision
without further
contest
Within 15 days from
notice of judgment:

Motion for
reconsideration; or
motion for new trial
Losing Party
Filing appeal within
15 days from
notice of judgment
Court Renders Decision
Losing party may appeal within
the remaining period

It is proper when more than one claim for relief is
presented in an action and a determination as to the
issues material to the claim has been made. The
action shall proceed as to the remaining claims.

Section 6. Judgment against entity without
juridical personality

The judgment shall set out their individual or proper
names, if known.

REMEDIES AGAINST JUDGMENTS OR FINAL
ORDERS
Before finality of judgment or final order:
1. Motion for New Trial;
2. Motion for Reconsideration; and
3. Appeal

After Finality of the judgment or final order:
1. Relief from Judgment or Final Order;
2. Annulment of Judgment; and
3. Petition for Certiorari

Page 59 of

RULE 37
NEW TRIAL OR RECONSIDERATION

Filed within 15 days from notice of judgment and
resolved by the court within 30 days from submission
for resolution.

Section 1. Grounds of and period for filing motion
for new trial or reconsideration

NEW TRIAL
It is the rehearing of a case already decided by the
court but before the judgment rendered thereon
becomes final and executory, whereby errors of law
or irregularities are expunged from the record, or new
evidence is introduced, or both steps are taken.

MOTION FOR A
NEW TRIAL
MOTION FOR
RECONSIDERATION
The grounds are:
1. Fraud (Extrinsic),
Accident, Mistake or
Excusable
Negligence (FAME);
or
2. Newly discovered
evidence which
could not, with
The grounds are:
1. The damages awarded are
excessive, 2. The evidence is
insufficient to justify the
decision or final order; or
3. The decision or final order
is contrary to law.
reasonable
diligence, have
discovered and
produced at the
trial, and which if
presented would
probably alter the
result

Required:
1. must be in writing
2. affidavit of the
existence of FAME
and newly
discovered
evidence;
3. affidavit of merit
setting forth the
particular facts
claimed to
constitute a
meritorious cause of
action;
4. in case of newly
discovered
evidence, (a.)
affidavit of new
witnesses; (b.) duly
authenticated
documents to be
introduced

Required:
1. Must point out specifically
the conclusion of judgment;
2. express reference to
testimonial or documentary
evidence or to provisions of
law
Absent the requirements above, the motion for new
trial or reconsideration is considered PRO-FORMA
or merely a scrap of scratch paper and will not toll
the reglementary period for appeal

Second motion may
be allowed
Second motion from same
party is prohibited

If a new trial is
granted the trial
court will set aside
the judgment or final
order
If the court finds that
excessive damages have
been awarded or that the
judgment or final order is
contrary to the evidence or
law, it may amend such
judgment or final order
accordingly

If denied, not
appealable; will have
to wait for the
judgment and appeal
therefrom
If denied, not appealable; will
have to wait for the judgment
and appeal therefrom
Order denying
motion for new trial
Second motion for new trial
based on grounds not existing or
available when 1
st
motion was
filed
Appeal from the judgment or final
order and assign as one of the
errors the denial of the motion for
new trial
Order denying a motion for
new trial is not appealable

GROUNDS: MOTION FOR NEW TRIAL
Page 60 of
1. Fraud, accident, mistake, or excusable negligence
(FAME);
2. Newly discovered evidence

FRAUD Must be extrinsic fraud. Extrinsic fraud
connotes any fraudulent scheme executed by the
prevailing party outside the trial against the missing
party who because of such fraud is prevented from
presenting his side of the case.

ACCIDENT an event that takes place without ones
foresight or expectation.

MISTAKE generally refers to mistakes of fact or law
where, in good faith, the defendant was mislead in the
case.

EXCUSABLE NEGLIGENCE depends upon the
circumstances of the case.

REQUSITES TO BE CONSIDERED AS NEWLY
DISCOVERED EVIDENCE
1. Discovered after trial
2. Could not have been discovered and produced
at trial despite the exercise of reasonable
diligence
3. If presented, could probably alter the result of
the action
Otherwise it is called forgotten evidence.

GROUNDS FOR MOTION FOR
RECONSIDERATION
1. Damages awarded are excessive
2. Evidence is insufficient to justify the decision or
final order
3. Decision is contrary to law

Section 2. Contents of motion for new trial or
reconsideration and notice thereof

A motion suspends or tolls the running of the
reglementary period except when it is pro-forma.

PRO-FORMA MOTION
It is that which does not comply with Rule 15 and Rule
37, e.g. it does not point out specifically the findings
or conclusions of the judgment as are contrary to law,
making express reference to the testimonial or
documentary evidence or to the provisions of law
alleged to be contrary to such findings or conclusions,
and is merely intended to delay the proceedings or if
there is no affidavit of merit.

NOTE: Motion for reconsideration, no second motion
is allowed.

NOTE: New trial, however, a second motion is
allowed but must be based on a ground not existing
or available when the first motion was made, which
may be filed during the remainder of the 15-day
period.

Section 3. Action upon motion for new trial or
reconsideration

The Court may either::
1. set aside judgment or final order and grant
new trial
2. deny the motion for new trial or motion for
reconsideration
3. amend such judgment or final order
accordingly

Section 4. Resolution of motion

Section 5. Second motion for new trial

Section 6. Effect of granting of motion for new
trial

When motion is granted, the original judgment is
thereby vacated and the action stands for trial de
novo, but the recorded evidence taken upon the
former trial so far as the same is material and
competent to establish the issues, shall be used at
the new trial taking the same.

Lucas v. Fabros 324 SCRA 1 (2000)
A Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial, is a prohibited
pleading under Section 19 of the Revised Rule on
Summary Procedure. This rule, however, applies only
where the judgment sought to be reconsidered is one
rendered on the merits. "The motion prohibited by this
Section is that which seeks reconsideration of the
judgment rendered by the court after trial on the
merits of the case."

Section7. Partial new trial or reconsideration
when issues severable

Section 8. Effect of order for partial new trial

EFFECTS OF AN ORDER FOR PARTIAL NEW
TRIAL
1. enter a judgment or final order as to the rest
of the issues, or
2. stay the enforcement of such judgment

Section 9. Remedy against order denying a
motion for new trial or reconsideration is appeal
from the judgment
Page 61 of

RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR
OTHER PROCEEDINGS

Section 1. Petition for relief from judgment, order,
or other proceedings

Section 2. Petition for relief from denial of appeal

GROUNDS FOR PETITION FOR RELIEF
1. Judgment or final order entered against a
party by FAME; or
2. Judgment or final order is rendered and party
has been prevented by FAME from taking an
appeal

For fraud to be extrinsic, the losing party must
never have had a chance to controvert the adverse
partys evidence.
Uniform procedure for relief from judgments of
MTC and RTC

After petition is filed, court shall order adverse parties
to answer within 15 days from receipt. After answer is
filed or expiration of period therefore, court shall hear
the petition.

If granted, judgment set aside and court shall proceed
as if timely motion for new trial has been granted; if
granted against denial of appeal, court shall give due
course to appeal.

NEW TRIAL/
RECONSIDERATION
RELIEF FROM
JUDGMENT
Must be filed within the
appeal period.
Judgment not yet final.
Judgment is final within 60
days after petitioner learns
of the judgment to be set
aside and within 6 months
after such judgment is
entered.
A legal right More on equity
FAME + Newly
Discovered Evidence
FAME only
Judgment on final order Relief from judgment/order
on other proceeding

Section 3. Time for filing petition; contents and
verification

Filed within 60 days after learning of judgment

Not more than 6 months after such judgment

FORM AND CONTENTS OF THE PETITION
1. The petition for relief must be verified;
2. It must be supported by affidavit showing the
FAME relied upon; and
3. The affidavit of merit accompanying the
petition must also show facts constituting the
petitioners good or substantial cause of
action or defense.

An affidavit of merit serves as the jurisdictional basis
for the court to entertain a petition for relief. However,
it is not a fatal defect to warrant denial of the petition
so long as the facts required to be set out also appear
in the verified petition.

Party who has filed a timely motion for new trial
cannot file a petition for relief after the former is
denied. The two remedies are exclusive of one
another.

Section 4. Order to file an answer

If petition is sufficient in form and substance to justify
relief, court shall issue an order requiring adverse
parties to file answer within 15 days from receipt of
the notice.

Basco v. CA 326 SCRA 768 (2000)
In view of the peculiar circumstance of this case,
such that the defective notice of hearing on
petitioners motion for reconsideration was due to the
day-long brownouts that plagued the metropolis,
counsels failure to specify the date and time for
hearing of petitioners motion for reconsideration
should rightly be deemed excusable negligence.

Section 5. Preliminary injunction pending
proceedings

PURPOSE
This is to preserve the rights of the parties.

Preliminary Injunction is granted upon filing of the
petitioner of the BOND in favor of adverse party.

Such injunction shall not operate to discharge or
extinguish any lien which the adverse party may have
acquired upon the property of the petitioner.

Section 6. Proceedings after answer is filed

TWO HEARINGS:
Page 62 of
(a) Hearing to determine whether the judgment
be set aside
(b) If in the affirmative, a hearing on the merits of
the case

WHEN TRIAL ON THE MERITS NOT NECESSARY
1. When relief sought may be the allowance of
an appeal after the expiration of the period to
appeal.
2. When relief sought may be the staying of
immediate execution due to FAME.

Section 7. Procedure where the denial of an
appeal is set aside

The lower court shall be required to give due course
to the appeal and to elevate the record of the
appealed cases as if a timely and proper appeal had
been made.

RULE 39
EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENTS

Section 1. Execution upon judgments or final
orders

WHEN EXECUTION IS A MATTER OF RIGHT
1. On motion;
2. Upon judgment or order that disposes of the
action or proceeding;
3. Upon expiration of the period to appeal
therefrom and no appeal has been
duly perfected;
4. When appeal has been duly perfected and
resolved, by filing a motion with the court of
origin submitting true copies of the final
judgment or final order sought to be enforced.

If the court of origin refuses to issue a writ of
execution, the appellate court may, on motion, direct
the court of origin to issue the writ.

FINAL JUDGMENTS FINAL AND
EXECUTORY
JUDGMENTS
Dispose of, adjudicate, or
determine the rights of
parties
Becomes final &
excecutory by operation
of law
Still subject to appeal After lapse of period to
appeal and no appeal
was perfected, no further
action can be had
Execution of judgment not
a matter of right
Execution of judgment a
matter of right

JUDGMENTS AND FINAL ORDERS THAT MAY BE
EXECUTED AS A MATTER OF RIGHT BEFORE
EXPIRATION OF TIME TO APPEAL
1. Forcible entry and detainer
2. Injunction, receivership, accounting and
support
3. Award, judgment, final order, or resolution of
quasi-judicial agencies appealable to CA

INTERLOCUTORY ORDER THAT MAY BE
EXECUTED
Support pendente lite

JUDGMENTS THAT ARE NOT APPEALABLE:
1. Sin perjuico judgments
(judgment, w/o any stated facts in support of
the conclusion)
2. Conditional judgments
3. Incomplete judgments

GENERAL RULE: Trial Court has a ministerial duty to
order execution of final and executory judgments. It
cannot refuse execution and is compellable by
Mandamus.

EXCEPTIONS:

1. Change in the situation of the parties which
makes the execution inequitable or unjust;
2. Writ of execution varies judgment;
3. Controversy has never been submitted to the
judgment of the court;
4. Execution is sought against property exempt
from execution
5. Terms of the judgment not clear; leaves room
for interpretation;
6. Writ of execution improvidently issued,
defective in substance, issued against the
wrong party, judgment debtor has been paid
or otherwise satisfied, writ has been issued
w/o authority.

In the above exceptions, remedy is certiorari under
Rule 65.

WHEN EXECUTION OF FINAL AND EXECUTORY
JUDGMENT MAY BE ENJOINED
1. Upon filing of a petition for relief from
judgment
2. Attack against a judgment which is void for
lack of jurisdiction, or obtained through fraud
3. On equitable grounds
Page 63 of
4. In cases falling under the (6) exceptions
above

Judgment novated by a subsequent agreement
cannot be executed.
e.g. agreement entered into by the parties other
than terms of payment

Judgment for support is not final in a sense that it
cannot be modified.
Support depends not only on the varying
conditions affecting the ability of the obligor to
pay, but also upon the ever-changing needs of
the beneficiary himself.

GENERAL RULE: Final and executory judgment
cannot be amended or modified
Any amendment w/c substantially affects a
final and executory judgment is null and void
for lack of jurisdiction

EXCEPTION: JUDGMENT MAY BE MODIFIED AS
TO:
1. clerical errors or mistakes;

CLERICAL ERROR JUDICIAL ERROR
Errors not the result of
exercise of judicial
functions
Mistake relates to
something the court did
not consider or pass on, or
considered and
erroneously decided
May be modified,
corrected even after
judgment has become
final and executory
Cannot be modified
must be done in another
case/suit

2. to clarify ambiguity; or
3. to enter nunc pro tunc orders
- to make a present record of an order w/c the
court rendered at a previous term but, by
inadvertence has not been entered.

A final and executory judgment can no longer be
amended by adding thereto relief not originally
included e.g. award of ownership does not
necessarily include possession

Section 2. Discretionary execution

WHEN ISSUANCE OF WRIT OF EXECUTION IS
DISCRETIONARY
1. Execution pending appeal
(a) While trial court has jurisdiction over the case
and is in possession of either the original
record or record on appeal;
(b) When trial court has lost jurisdiction but has
not transmitted records of the case to the
appellate court;
(c) When trial court has lost jurisdiction and has
transmitted records motion for execution
pending appeal with appellate court
2. Execution of several, separate or partial judgments

SEVERAL
JUDGMENTS
SEPARATE/PARTIAL
JUDGMENTS
Rendered against one or
more of several
defendants, leading the
action to proceed
against others
Rendered at any stage of
the action regarding a
particular claim, leaving
the action to proceed as
to the remaining claims

DISCRETIONARY
EXECUTION
EXECUTION AS A
MATTER OF RIGHT
May issue before the
lapse of period to appeal
Issued when period to
appeal has already lapsed
and no appeal has been
perfected
Discretionary upon the
court; there is inquiry on
whether there is good
reason for execution
Ministerial duty of the
provided there are no
supervening events

REQUISITES FOR EXECUTION PENDING APPEAL
1) On motion by the prevailing party, with notice
to the adverse party;
2) Good reasons for issuing execution; and
3) The good reasons must be stated in a special
order.

Examples of good reasons
1) Where education of a person to be supported
would unduly be delayed
2) The immediate execution of an order to
support is valid
3) The judgment debtor is insolvent, except
when a co-defendant is solvent and his
liability is subsidiary

What are not good reasons:
1) the mere fact that a claim is not secured, w/o
any allegation that the defendant is insolvent
or is about to dispose of his properties
2) Where the reason given is that an appeal is
frivolous or dilatory, the trial judge may not
rightfully determine the same
3) Mere posting of a bond

Award for actual and compensatory damages may
be ordered executed pending appeal, but not moral
and exemplary damages.

Page 64 of
Moral and exemplary damages depends on
actual result of the appeal

Execution pending appeal is not applicable in land
registration proceedings

Section 3. Stay of discretionary judgment

Stay of execution may be allowed at the discretion of
the court by filing a supersedeas bond

SUPERSEDEAS BOND
It is one filed by a petitioner and approved by the
court before judgment becomes final and executory
and conditioned upon the performance of the
judgment appealed from in case it be affirmed wholly
or in part.

The supersedeas bond guarantees satisfaction of the
judgment in case of affirmance on appeal, not other
things like damage to property pending the appeal.

Aside from the supersedeas bond, an aggrieved party
may file a special civil action of certiorari under Rule
65 against the order granting execution pending
appeal where the same is not founded upon good
reasons.
This remedy may be availed of
notwithstanding the fact that 1) he has
appealed from the judgment, or 2) has filed a
supersedeas bond.

Section 4. Judgments not stayed by an appeal

The following judgments are immediately executory,
enforceable after their rendition and shall not be
stayed by an appeal, unless otherwise ordered by the
trial court:
1. Injunction;
2. Receivership;
3. Accounting;
4. Support; and
5. Such other judgments declared to be
immediately executory unless otherwise
ordered by the trial court.

Section 5. Effect of reversal of executed judgment

The trial court may, on motion, issue restitution or
reparation in an event of a reversal after a petition for
relief under Rule 38, or annulment of judgment under
Rule 47 is granted

How restitution is made. Effects of reversal,
modification.
COMPLETE SPECIFIC RESTITUTION
REVERSAL
Modified
judgment
Creditor may not be compelled to
make specific restitution; He can
be required to restore the excess
realized upon the execution over
and above the amount finally
awarded
Sale by sheriff to
a 3
rd
person
Sale is not affected by reversal;
title of 3
rd
person is protected,
except when there is want of
jurisdiction over the subject
matter
Sale of a creditor
to himself in a
public sale
He may be required to surrender
the property
Sale to a creditor,
but subsequently
sold to a 3
rd
party
Creditor may be required to
account for the value received by
virtue of the sale to the 3
rd
party;
title of 3
rd
party is protected,
unless writ of execution is
absolutely void, where:
- execution upon a void
judgment
- judgment has been paid
- execution levied on wrong
party

Section 6. Execution by motion or by independent
action.

A final and executory judgment or order may be
executed:
1) On motion, w/in 5 years from entry; or
2) By filing another action w/in 10 years from
entry

Lifespan of writ of execution= 5 years
A revived judgment is again enforceable by motion
w/in 5 years and thereafter, by another action w/in 10
years from finality of the revived judgment, not the
original judgment

EXECUTION OF A JUDGMENT BY COMPROMISE
WITH A TERM
If a compromise agreement w/ a term suspends the
enforceability of a final judgment, the 5 year/10 year
period must be counted from the end of such term,
not from the date of entry

REVIVAL OF A JOINT AND SEVERAL JUDGMENT
A judgment rendered against several defendants,
jointly and severally, can be revived against one of
them only.

Page 65 of
WHEN 5/10 YEAR PERIOD SUSPENDED
1) When the enforceability of a final decision is
suspended by the court;
2) When the 5 year period is interrupted or
suspended by agreement of the parties
3) When the judgment creditor institutes
supplementary proceedings to the execution
4) When delays are caused by judgment
obligors own initiatives and for her advantage

A valid execution issued and levied w/in the 5 year
period may be enforced by sale even after the lapse
of the said period
The levy is the essential act by which the property
is set apart for satisfaction of judgment
However, the execution sale must take place w/in
the 10 year period

WHEN 5 AND 10 YEAR PERIODS NOT
APPLICABLE
1) Judgment for support
- does not prescribe
- may still be enforced by motion even after
the 5 year period
2) Special proceedings
- e.g. land registration proceedings

NOTE: An action for support does not prescribe and
may still be enforced by motion even after the lapse of
5 year period since the obligation is a continuing one.
The court never loses jurisdiction to enforce such.

VENUE OF ACTION FOR ENFORCEMENT OF
JUDGMENT
personal action where plaintiff resides or
defendant resides, at the election of the plaintiff;
real action where the property is located

DEFENSES AVAILABLE IN AN ACTION FOR
ENFORCEMENT OF JUDGMENT
prescription
satisfaction of claim
counterclaims

JURISDICTION TO
CHANGE, ALTER,
MODIFY JUDGMENT
JURISDICTION TO
ENFORCE JUDGMENT
Terminates when the
judgment becomes final
Continues even after
judgment has become
final, for purposes of
execution and enforcement
Governed by Rule 39,
Section 1
Governed by Rule 39,
Section 6

Section 7. Execution in case of death of party.

This section applies when a party dies after rendition
of judgment, before or after entry.

A judgment of foreclosure of mortgage is enforceable
by execution against the executor or administrator
whether the judgment obligor died before or after
entry of judgment.

Section 8. Issuance, form, and contents of a writ
of execution.

The motion for execution and the writ of execution
must state specifically the amount of interest, costs,
damages, rents, or profits due as of the date of
issuance of the writ, aside from the principal
obligation

Special sheriffs for the service of writ of execution are
not authorized by law.

The writ of execution must conform to the judgment to
be executed, otherwise it is null and void.

Execution will issue in any case

An appeal is the remedy for an order denying the
issuance of a writ of execution.

DEATH OF A
OBLIGEE
Upon application of his executor,
administrator, or successor-
in-interest
DEATH OF A
OBLIGOR
Death Before Levy:
1. Action for recovery of real or
personal property or any
lien - execution will issue
2. Action for a sum of money
execution will NOT issue. In
this case, the judgment
obligee should file claim
against the estate of the
judgment obligor under Rule
86.

Death After Levy: execution will
issue since the property is
already separated from the
estate of the deceased and is
deemed in custodia legis.

Against his executor,
administrator, or successor-
in-interest
Page 66 of
GROUNDS FOR QUASHING A WRIT OF
EXECUTION:
1) writ of execution varies judgment;
2) change in the situation of the parties making
execution inequitable and unjust;
3) execution sought to be enforced against
property exempt from execution;
4) controversy has never been submitted to the
judgment of the court;
5) terms of judgment are not clear and there
remains room for interpretation;
6) writ of execution is improvidently issued,
defective in substance, issued against the
wrong party, judgment debt has been paid, or
writ issued without authority

Section 9. Execution of judgments for money,
how enforced

3 WAYS TO ENFORCE A JUDGMENT FOR MONEY
1. Immediate payment on demand
judgment obligor shall pay in cash,
certified bank check payable to the
judgment obligee, or any other form of
payment acceptable to the latter
payment made to the judgment obligee or
his representative, or if not present, to the
sheriff, or if
not practicable, to a fiduciary account

2. satisfaction by levy

LEVY
An act by which an officer sets apart or
appropriates a part or whole of the property of
the judgment debtor for purposes of the
execution sale.

The officer shall levy upon properties of
the judgment obligor not otherwise
exempt from execution
Judgment obligor exercises option to
chose w/c property levied upon; if not
exercised, officer shall levy 1
st
on
personal property, then on real property
The sheriff shall sell only property
sufficient to satisfy the judgment and
other lawful fees.
The on execution creates a lien in favor of
the judgment obligee over the right, title,
and interest of the judgment
obligor in such property at the time of
the levy, subject to liens and
encumbrances then existing.

3. garnishment of debts and credits

GARNISHMENT
An act of appropriation by the court when
property of debtor is in the hands of third
persons.

The sheriff may levy on debts due to
debtor, or other credits, including bank
deposits, financial interests, royalties,
commissions and other personal
property, not capable of manual delivery
in the possession or control of 3
rd
parties
Notice served on 3
rd
party (garnishee)

GENERAL RULE: All property belonging to judgment
obligor not exempt from execution may be attached.

EXCEPTIONS:
1) Usufruct
2) Ascertainable interest in real estate as mortgagor,
mortgagee, or otherwise
3) Unused balance of an overdraft account (credit
not subject to garnishment)

Levy on personal property may be actual or
constructive
e.g. levy on a barge by registration w/ Philippine
Coast Guard (constructive)

Section 10. Execution of judgments for specific
act

SPECIFIC ACTS
1) Conveyance, delivery of deeds, or other specific
acts; vesting title
- if party fails to comply within the time
specified, the court may direct the act to
be done at the cost of the disobedient
party
- Real or personal property situated w/in
the Philippines: court in lieu of
conveyance may give order divesting title
and may vest it in others
2) Sale of real or personal property
3) Delivery or restitution of real property
- officer shall demand person to peaceably
vacate property w/in 3 working days, and
restore possession to judgment obligee,
otherwise officer shall oust such persons
4) Removal of improvements on property subject of
execution
- officer shall not destroy, demolish, or
remove improvements except upon
special order of the court
Page 67 of
- special order issued upon motion, after
judgment obligor failed to remove the
same
5) Delivery of personal property officer shall take
possession of the same and deliver it to the
judgment oblige

Failure to comply with specific acts under Rule 39
Sec. 10 is not necessarily punishable by contempt.
However, if a party refuses to:

1. vacate the property the sheriff must oust the
party. A demolition order from the court is required
to effect removal of an improvement constructed by
the defeated party.
2. deliver the sheriff will take possession and
deliver it to the winning party.
3. comply the court can appoint some other
person at the expense of the disobedient party and
the act shall have the same effect as if the required
party performed it

No time limit w/in which an order of demolition
should be carried out; defeated party is given
reasonable period to look for another place.

ORDER OF DEMOLITION COULD BE ISSUED
AFTER THE 5 YEAR PERIOD
but writ of execution must be served w/in 5 years
order of demolition ancillary to writ

Certiorari is available if requirements for issuance of
order of demolition are not followed

Section 11. Execution of special judgment

SPECIAL JUDGMENT
A special judgment is one that can be complied with
only by the judgment obligor himself.

It requires the performance of any other act than
payment of money, or the sale or delivery of real or
personal property

Failure to comply with special judgment under Section
11 is punishable as contempt by imprisonment

Section 12. Effect of Levy on execution as to third
persons

Section 13. Property exempt from execution

PROPERTIES EXEMPT FROM EXECUTION
1) family home, or homestead, land necessarily
used in connection therewith
2) ordinary tools and implements used in trade,
employment, or livelihood
3) 3 horses, cows, carabaos, or other beast of
burden necessarily used in his ordinary
occupation
4) necessary clothing and articles for ordinary
personal use, except jewelry
5) household furniture and utensils necessary
for housekeeping P100K
6) Provisions for individual or family use
sufficient for 4 months
7) Professional libraries and equipment
8) One fishing boat and accessories P100K
used in livelihood
9) Salaries, wages, or earnings as are
necessary for support of family w/in 4 months
preceding levy
10) Lettered gravestones
11) Monies, benefits, privileges, or annuities
accruing out of any life insurance
12) Properties specially exempt from execution

OTHER PROPERTIES SPECIALLY EXEMPT FROM
EXECUTION
1) Property mortgaged to DBP (Section 26, CA
458)
2) Property taken over by Alien Property
Administration (Section 9[f], US Trading With
The Enemy Act)
3) Savings of national prisoners deposited with
the Postal Savings Bank (Act 2489)
4) Backpay of pre-war civilian employees (RA
304)
5) Philippine Government backpay to guerillas
(RA 897)
6) Produce, work animals, and farm implements
of agricultural lessees, subject to limitations
(Section21, RA 6389)
7) Benefits from private retirement systems of
companies and establishments, with
limitations (RA 4917)
8) Labor wages, except for debts incurred for
food, shelter, clothing, and medical
attendance (Art. 1708, NCC)
9) Benefit payments from the SSS (Section 16
RA 1161 as amended by PDs 24, 65, and
177)
10) Copyrights and other rights in intellectual
property under the former copright law (PD 49
cf. Section 239.3, RA 8293)
11) Bonds issued under RA 1000 (NASSCO v.
CIR L-17874 31 August 1963) (Regalado, F.
Remedial Law Compendium Vol. 1, 8
th
ed.,
pp. 447-448).

Page 68 of
Section 14. Return of writ of execution

Writ of execution is returnable to the court after
judgment it satisfied

Sheriff shall report to the court w/in 30 days after
receipt and every 30 days until the judgment is
satisfied in full

Lifetime of writ of execution 5 years from entry of
judgment

The rules do not provide any lifetime for a writ of
attachment unlike writ of execution

Section 15. Notice of sale of property on
execution

REQUISITES FOR
NOTICE OF SALE OF
PERSONAL
PROPERTY
REQUISITES FOR
NOTICE OF SALE OF
REAL PROPERTY
- perishable property:
notice posted in 3
public places for such
time as may be
reasonable
considering the
character & condition
of the property
- other personal
property: notice
posted in 3 public
places for not less
than 5 days
- If 50,000: notice
posted in 3 public
places for 20 days

- If > 50,000: Publication
once a week for 2
consecutive weeks and
notice posted in 3 public
places for 20 days
- In all cases, written notice of the sale shall be given
to the judgment obligor, at least 3 days before the
sale, except as provided in paragraph (a) hereof
where notice shall be given at any time.

EFFECTS OF AN EXECUTION SALE WITHOUT
THE REQUIRED NOTICE
1. Sheriff and creditor are joint tortfeasors
2. Liable in solidum because liability is joint and
solidary

Want of notice does not invalidate the execution sale
where purchaser is innocent and no collusion appears
(buyer in good faith)

Section 16. Proceedings where property claimed
by third persons

3
RD
PARTY CLAIM
A claim by any person other than the judgment debtor
or his agent on property levied on execution

PURPOSE OF 3
RD
PARTY CLAIM
1) To recover property levied on by sheriff
(although 3
rd
party can vindicate claim in a
separate action)
2) To hold sheriff liable for damages for the
taking or keeping of such property

WHEN TO FILE A 3
RD
PARTY CLAIM
At any time, so as long as the sheriff has the
possession of the property levied upon, or before the
property is sold under execution

WHAT IS THE PROCEDURE FOR A 3
RD
PARTY
CLAIM
3
rd
party should make an affidavit of his title thereto,
or right of possession thereof, and should serve such
affidavit upon the sheriff and a copy thereof to the
judgment obligee.

The sheriff may or may not require the judgment
obligee to file a bond.

INDEMNITY BOND
FILED
NO INDEMNITY BOND
FILED
Action for damages
brought against the
principal and sureties on
the bond
Action for damages may
be brought against sheriff
himself
Sheriff not liable for
damages
Sheriff liable for damages
Sheriff bound to keep
property on behalf of
judgment obligee
Sheriff not bound to keep
property under levy

REMEDY OF THE CREDITOR
1. File a bond to indemnify 3
rd
party complainant
- amount of bond not less than value of
property
- sheriff not liable for damages if bond is filed

2. File a claim for damages against 3
rd
party in
the same or separate action
- based on the ground that 3
rd
party claim is
frivolous or plainly spurious

REMEDY OF THE 3
RD
PARTY
1. Vindicate his claim in a separate action
- no intervention allowed since judgment
final & executory
2. File a separate action for damages against
the sheriff (if no bond filed)
3. File a claim for damages against the bond
- claim must be w/in 120 days from filing of
bond

Page 69 of
The sheriff is at complete liberty to suspend or not to
suspend execution if the judgment creditor does not
file a bond.

The judgment creditor cannot be compelled to file a
bond because he is at complete liberty to do so.

Without an indemnity bond, the sheriff acts at his own
risk if he keeps the property (can be liable for
damages).

Section 17. Penalty for selling without notice, or
removing or defacing notice

PERSONS LIABLE UNDER SECTION 17
1) Officer selling without notice
2) Any person willfully removing or defacing
notice posted (e.g. notice posted in 3 public
places)

What is the liability?
1. punitive damages to any person injured thereby =
P5000, 2. actual damages

Section 18. No sale if judgment and costs paid

If judgment obligor paid the amount of judgment
NO writ of execution may be issued or implemented.

Section 19. How property sold on execution; who
may direct manner and order of sale

All sales of property under execution must be made:
1. at a public auction
2. to the highest bidder
3. to start at the exact time fixed in the notice

Sale of real properties must be made in the province
where the same are situated
Purpose is to obtain the best price

PERSONS PROHIBITED FROM BUYING
Judge, who issued the writ of execution
Officer conducting sale, or his deputy

EFFECT OF SALE OF REAL PROPERTY IN MASS
GENERAL RULE: Valid

EXCEPTION:
1. when it appears that a larger sum would have
been realized from a sale in parcels, or
2. a sale of less than whole would be sufficient
to satisfy debt

Mere inadequacy of price is not material if there is a
right of redemption.

Shocking inadequacy of price may be ground for
setting aside sale

Who has jurisdiction to set aside execution sale?
Court w/c rendered judgment that became final and
executory has exclusive jurisdiction

After sufficient property has been sold to satisfy the
execution, no more sale shall be made and any
excess shall be promptly delivered to the judgment
obligor or his authorized representative, unless
otherwise directed by the judgment or order of the
court.

Section 20. Refusal of purchaser to pay

Section 21. Judgment obligee as purchaser

Officer may sell again the property to the highest
bidder
refusing purchaser may be liable for amount of
loss occasioned by such refusal
Refusing purchaser may be punished for
contempt
Officer may reject subsequent bid of refusing
purchaser

If judgment obligee is the successful bidder
BID JUDGMENT IF BID > JUDGMENT
Judgment obligee not required
to pay bid
Judgment obligee required
to pay excess

Section 22. Adjournment of Sale

If both obligee and obligor agree in writing, sale
may be adjourned to any date and time agreed
upon
Without such agreement, sale may be adjourned
from day to day if it becomes necessary to o so
for lack of time.
Adjournment = waiver of publication of another
notice requirement

Section 23. Conveyance to purchaser of personal
property capable of manual delivery

After purchaser pays the purchase price, the
sheriff must deliver the property capable of
manual delivery to the purchaser
If desired the sheriff shall execute and deliver a
certificate of sale
No right of redemption in sales of personal
property on execution

Page 70 of
Section 24. Conveyance to purchaser of personal
property not capable of manual delivery

For personal property not capable of manual
delivery, the officer must execute and deliver to
purchaser certificate of sale (symbolic delivery)

Section 25. Conveyance of real property;
certificate thereof given to purchaser and filed
with registry of deeds

CERTIFICATE OF SALE MUST CONTAIN
1) Description of real property sold;
2) Price paid (per lot)
3) Whole price paid
4) Statement of right of redemption 1 year from
date of registration of certificate of sale

ORDINARY SALE ON
EXECUTION
EXECUTION IN JUDICIAL
FORECLOSURE OF
MORTGAGE
Need not be confirmed Needs judicial confirmation
Right of redemption No right of redemption (except
where mortgagee is a bank)
Purchaser acquires title
upon expiration of
redemption period
Purchaser acquires title after
judicial confirmation of sale

Purchaser acquires only right, title, interest and claim
of judgment obligor.

Purchaser of property registered under Torrens
system acquires the same free from liens or
encumbrances not noted thereon.

Auction sale retroacts to date of levy
E.g. a 3
rd
party claim was filed after the levy. The fact
that the 3
rd
party claim was presented 1 day before
the execution sale is immaterial. If the levy is valid,
the sale is also valid. The auction sale retroacts to the
date of the levy.

The purchaser is not entitled to possession during the
period of redemption.

Section 26. Certificate of sale where property
claimed by 3
rd
person

The certificate of sale to be issued shall make
express mention of the existence of such third-party
claim.

Section 27. Who may redeem real property so
sold

RIGHT OF REDEMPTION:
1. Personal Property None; sale is absolute
2. Real Property there is a right of redemption

WHO MAY REDEEM?
JUDGMENT DEBTOR REDEMPTIONER
Judgment obligor, or his
successor in interest (e.g.
transferee, assignee,
heirs, joint debtors)
One who has a lien by virtue of
another attachment, judgment,
or mortgage on property
SUBSEQUENT to the lien
under which the property was
sold
When?
Within 1 year from the
date of registration of the
certificate of sale
When?
1. Within 1 year from the date
of registration of the certificate
of sale; or
2. Within 60 days from the last
redemption by another
redemptioner.

A surety is NOT a successor in interest
By paying the debt, he stands in the place of the
creditor, not obligor

Right of redemption cannot be levied on by
judgment creditor
The judgment debtor may, of course, legally sell his
right of redemption

Section 28. Time and manner of, and amounts
payable on, successive redemptions; notice to be
given and filed

PERIOD OF REDEMPTION
JUDGMENT
OBLIGOR
REDEMPTIONER
Judgment Obligor
has 1 year from
registration of
certificate of sale
1
st
redemptioner has 1 year to
redeem
2
nd
redemptioner has 60 to
redeem after 1
st
redemption
3
rd
redemptioner has 60 days
after 2
nd
, etc.
Once he redeems,
no further
redemption is
allowed
Further redemption allowed,
even after lapse of 1 year, as
long as each redemption is
made w/in 60 days after the
last

Payment how and to whom made
Tender of redemption money may be made to
purchaser or sheriff
If tender to sheriff duty to accept

Medium of payment
Cash, although Sec. 9, Rule 39 allows certified
bank check
If check is dishonored, redemption invalid
If check became stale for not being presented,
through no fault of redemptioner, redemption valid
Page 71 of

Amounts Payable On Redemption
JUDGMENT
OBLIGOR
REDEMPTIONER
If he redeems from the
purchaser:
- Purchase
price + 1%
interest +
assessment
or taxes

If he redeems from
redemptioner
- Redemption
price + 2%
interest +
assessment
or taxes

If he redeems from the
purchaser:
- Same as
judgment obligor
- Amount of lien, If
purchaser also
creditor w/ prior
lien
If he redeems from
redemptioner
- Same as judgment obligor
- Amount of liens held by
last redemptioner prior to
his own, w/ interest

Section 29. Effect of redemption by judgment
obligor, and a certificate to be delivered and
recorded thereupon; to whom payments on
redemption made

If judgment obligor redeems, no further redemption is
allowed. The Person to whom redemption was made
must execute and deliver to the judgment obligor a
certificate of redemption.

Payments may be made to the purchaser,
redemptioner, or sheriff.

Redemption can be paid in other forms than cash.
The rule is construed liberally in allowing redemption
(aid rather than to defeat the right) and it has been
allowed to in the case of a cashiers check, certified
bank checks, and even checks.

A formal offer to redeem is not necessary where the
right to redeem is exercised through the filing of a
complaint to redeem in the courts, within the period to
redeem.

Section 30. Proof required of redemptioner

PROOF REQUIRED
JUDGMENT OR
FINAL ORDER
REDEMPTIONER
No proof required

Right of redemption
appears on record
If based on judgment or final
order:
- must serve copy of
judgment or final order,
certified by clerk of court

If based on Mortgage or
other lien, must serve:
- memorandum of record, or
any assignment, AND
- affidavit, showing amount
due on lien

Failure to produce proof by redemptioner is waived by
refusal on other grounds.

Validity of redemption not affected by failure to
present proof
If person to whom redemption was offered accepts
without requiring proof redemption valid

Section 31. Manner of using premises pending
redemption; waste restrained

During the period pending the redemption, the court
issues an order to restrain the commission of waste
on the property by injunction.

WHAT IS NOT COMMISSION OF WASTE
1) Use in the same a manner previously used;
2) Use in the ordinary course of husbandry;
3) Make necessary repairs to buildings thereon

Section 32. Rents, earnings and income of
property pending redemption

During the period of redemption, all rents, expenses,
income and fruits derived still belong to the debtor.

During the period of redemption, the purchaser or
redemptioner is not entitled to:
1. possession
2. receive the rents, earnings, and income of
property sold on execution;
3. reimbursement for improvements

Section 33. Deed and possession to be given at
expiration of redemption period; by whom
executed or given

Upon expiration when no redemption has been made
within 1 year, purchaser is entitled to conveyance and
possession of property.

Upon expiration when no redemption has been made
within 6 months, last redemptioner is entitled to
conveyance and possession of property.

Within 1 year purchaser acquires only the rights, title,
interest and claim of judgment obligor to property.
After 1 year, the purchaser now has his own right and
Page 72 of
acquires right to the property. It is at this time that the
writ of possession is issued.

Writ of possession may be enforced against
judgment obligor, successors-in-interest
- but NOT against persons whose right of
possession is adverse to the latter

Section 34. Recovery of price if sale not effective;
revival of judgment

If purchaser fails to recover possession, evicted,
judgment reversed, property exempt from execution,
or 3
rd
party vindicated claim, purchaser may, on
motion or in a separate action:
1) recover from creditor price paid w/ interest, or
so much w/c is not returned to judgment
obligor; or
2) have original judgment revived for whole price
w/ interest

Section 35. Right to contribution or
reimbursement

If property is executed against several persons, and
more than due proportion has been satisfied one
who pays may compel contribution from the others

If surety pays he may compel repayment from the
principal

Section 36. Examination of judgment obligor
when judgment unsatisfied

Upon return of writ of execution, and judgment is still
unsatisfied, the creditor may ask the court to require
the debtor to appear and his property or income be
examined

PROCEEDINGS SUPPLEMENTARY TO
EXECUTION
The proceedings are to aid judgment creditors in
discovery of debtors property and its application to
the satisfaction of judgment. It is to compel the
disclosure of any property that is not exempt from
execution

1) Sec. 36 examination of judgment obligors
property
2) Sec. 37 examination of judgment obligors
debtor (garnishee)
3) Sec. 38 enforcement of attendance and
conduct of examination (punishable by
contempt)
4) Sec. 39 judgment obligors debtor may pay
sheriff
5) Sec. 40 order to apply to obligors property
in the hands of another, investigate income,
expenses, earnings order fix monthly
payments
6) Sec. 41 appoint receiver
7) Sec. 42 sale of debtors interest in real
estate
8) Sec. 43 if garnishee denies debt, court may
order creditor to institute action against such
person to pay debt

Section 37. Examination of obligor of judgment
obligor

Any person or corporation who has property of the
debtor, or is indebted to the debtor court may order
such person to be examined to bind the credits due
to debtor

CITATION
The garnishee becomes a forced intervenor, requiring
him to pay his debt not to the judgment debtor but to
the creditor (a form of involuntary novation).

Section 38. Enforcement of attendance and
conduct of examination

A party or other person may be compelled by an order
of subpoena, to attend before the court or
commissioner to testify as provided in Sections 36 &
37.

Failure to obey such order or subpoena may be
punished for contempt.

Section 39. Obligor may pay execution against
obligee

Persons indebted to the debtor may pay sheriff.

Sheriffs receipt shall mean a discharge for the
amount paid and shall be credited by the obligee on
execution

Section 40. Order for application of property and
income to satisfaction of judgment.

Court may order property of judgment obligor, or
money due him, in the hands of either himself or
another, to be applied to the satisfaction of the
judgment

Investigation of income and expenses if it appears
earnings more than necessary for support of family
court may order that he pay judgment in fixed monthly
installments otherwise contempt
Page 73 of

Section 41. Appointment of receiver

The sheriff is not a proper person to be appointed as
receiver.

Section 42. Sale of ascertainable interest of
judgment obligor in real estate.

If Judgment obligor has interest in real estate (as
mortgagor or mortgagee, or otherwise)
Receiver may be ordered to sell and convey
real estate or interest therein

Section 43. Proceedings when indebtedness
denied or another person claims property.

Person or corporation having property of obligor or
indebted to him, claims an interest in property
adverse to him or denies debt

Court may:
1. authorize judgment obligee to institute action
against person or corporation for recovery of
such interest or debt;
2. forbid transfer or other disposition of such
interest or debt w/in 120 days from notice of
order; or
3. may punish disobedience of such order as for
contempt.

Court cannot make a finding that 3
rd
person has in his
possession property belonging to judgment debtor or
is indebted to him and to order said person to pay
amount to judgment creditor

Execution may issue only upon an incontrovertible
showing that 3
rd
party holds property of judgment
obligor or is indebted to him

Section 44. Entry of satisfaction of judgment by
clerk of court

Section 45. Entry of satisfaction with or without
admission

Judgment obligee is obliged to execute and
acknowledge admission of satisfaction of judgment
only if judgment obligor demands

ENTRY OF SATISFACTION OF JUDGMENT-WHEN
MADE
1) upon return of execution satisfied
2) upon filing of admission of satisfaction by
creditor
3) upon indorsement of such admission
4) upon order of the court

Creditor who compels satisfaction of judgment loses
right of appeal.

Debtor who voluntary satisfies judgment loses right to
appeal.

But, the debtor who is compelled to pay does NOT
lose right to appeal.

TENDER OF PAYMENT
OF JUDGMENT
TENDER OF PAYMENT OF
CONTRACTUAL DEBT
- If tender refused, not
necessary to make
consignation
- Court may direct
money to be paid to
the court, and order
entry of satisfaction of
judgment
- If tender refused, must
consign payment w/
court

Section 46. When principal bound by judgment
against surety

SURETY SUED
ALONE
PRINCIPAL
AND SURETY
JOINTLY
SUED
PRINCIPAL
SUED
ALONE
- principal also
bound by
judgment
- surety should
notify principal
and request him
to join in
defense; surety
must still file
separate action
for
reimbursement
but principal can
no longer set up
defenses w/c he
could have set
up in the original
action
- if principal not
notified, he may
set up defenses
in a subsequent
action
- judgment
may be
rendered
against
them jointly
& severally
- surety
should file
cross-claim
for
reimbursem
ent
- principal
has no
cause of
action
against
surety

The principal is bound by the same judgment from the
time he has notice of the action or proceeding and
Page 74 of
has been given an opportunity at the suretys request,
to join the defense.

Section 47. Effect of judgment or final orders.

Paragraph (a) refers to rule on Res Judicata in
judgments IN REM.

JUDGMENT OR FINAL
ORDER
EFFECT:
CONCLUSIVE AS TO
Against A specific thing

the title of the thing

Probate of a will or
administration of the
estate of a deceased
person
Will or administration.
However, only prima facie
evidence of the death of
the testator or intestate
In respect to the
personal, political, or
legal condition or status
of a particular person
Condition, status, or
relationship of the person

Paragraph (b) refers to as bar by former judgment or
Res Judicata in judgments IN PERSONAM

RES JUDICATA
It is a matter adjudged; an existing final judgment or
decree rendered on the merits is conclusive upon the
rights of the parties or their privies, in all other actions
or suits in the same or any other judicial tribunal, on
the points and matters in issue in the first suit.

It is based on the principle that parties should not
litigate the same matter more than once.

REQUISITES OF RES JUDICATA
1) Former judgment or order must be final and
executory;
2) Court has jurisdiction over subject matter and
parties;
3) Former judgment or order was on merits;
4) Identity of parties, subject matter, and cause
of action between first and second action.

Test to determine IDENTITY OF CAUSE OF
ACTION
Whether the same evidence would sustain both
causes of action

NOTE: Res Judicata applies only between adverse
parties in a former suit, NOT between co-parties

Paragraph (c) is known as conclusiveness of
judgment or preclusion of issues or rule of AUTER
ACTION PENDANT

CONCLUSIVENESS OF JUDGMENT
Issues are actually and directly resolved in a former
suit cannot again be raised in any future case
between the same parties involving a different cause
of action.

RES JUDICATA OR
BAR BY FORMER
JUDGMENT
ESTOPPEL BY
JUDGMENT OR
CONCLUSIVENESS BY
JUDGMENT
- Refers to same
action, claim or
demand
- Refers to another action
between same parties
but involves different
claim
- Absolute bar to
subsequent action
- there is finality as to
the claim or demand
in controversy, not
only to matters
presented, but as to
any other admissible
matter w/c might
have been
presented
- judgment merely an
estoppel only as to those
matters in issue or
controverted
- identity of parties,
SM, cause of action
- identity of parties, SM
only

Section 48. Effect of foreign judgments or final
orders.

EFFECT OF A FOREIGN ORDER OR TRIBUNAL:
1) Against a specific thing conclusive upon title
to the thing.
2) Against a person presumptive evidence of a
right as between the parties and their
successors in interest by a subsequent title.

In both instances, the judgment may be repelled by
evidence of want of jurisdiction, notice, collusion,
fraud, or clear mistake of law or fact.

ENFORCEMENT OF FOREIGN JUDGMENTS
By filing an action based on said judgment; foreign
judgment is presumed to be valid and binding.

RECOGNITION OF A FOREIGN JUDGMENT
Raise the foreign judgment as res judicata in the
defense (not in a separate action).
Page 75 of

Ateneo 2007 Civil Procedure

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