Lecture Notes On Civil Procedure

LECTURE NOTES ON CIVIL PROCEDURE
WHAT IS CIVIL PROCEDURE

It is the procedure governing the filing, processing and adjudication of
civil actions. It essentially is the lawyers law that defines the rules of the
game that lawyers and judges play.
It is embraced in Rules 1 to 71 of the Rules of Court and after its
revision, is now commonly known as the 1997 Rules of Civil Procedure.
It is divided into the following topics: General Provisions (Rule 1),
Ordinary Civil Actions (Rules 2-5), Procedure in Regional Trial Courts
(Rules 6-39), Appeals (Rules 40-43), Procedure in the Court of Appeals
(Rules 44-55), Procedure in the Supreme Court (Rule 56), Provisional
Remedies (Rules 57-61), and Special Civil Actions (Rules 62-71).
Included within its scope are the 1991 Rules on Summary Procedure and
Local Government Code provisions on the Katarungang Pambarangay.
JURISDICTION
Any discussion of procedural rules should always be preceded by a
discussion of jurisdiction.
The presence of jurisdiction gives rise to the application of the rules for
the purpose of resolving the action that is brought before a court. Absent
jurisdiction, the only thing a court can do as provided by the rules is to
dismiss the action. If a court acts without jurisdiction, all its acts are null
and void. Further, any decision it may render is not a decision in
contemplation of law and cannot be executory. See: Abbain v. Chua 22
SCRA 748, Estoesta vs. CA 179 SCRA 203, Dava v. People 202 SCRA
62
Simply defined JURISDICTION refers to the power and authority of a
court or tribunal to hear, try and decide a case. It has also been defined as
the authority by which courts and judicial officers take cognizance of and
decide cases.
REQUISITES FOR A VALID EXERCISE OF JURISDICTION
1. It must have jurisdiction over the persons of the parties. It is acquired
over the plaintiff upon his filing of a complaint. On the other hand, it is
acquired over the defendant by his voluntary appearance before the court
or the employment of the coercive power of legal process.
2. It must also have jurisdiction over the subject matter in controversy
Jurisdiction over the subject matter of the compliant as determined by the
allegations in the complaint and the law in force at the time of the
commencement of the action.
2.1
Determined by allegations in the complaint
2.1.a
The facts allege dispossession of the property by force the
allegations make out a case for forcible entry The law provides that
such cases fall within the jurisdiction of the MTC.
2.1.b
The allegation is for recovery or payment of the sum of 500,000,
subject matter jurisdiction is with the RTC
2.1.c
The plaintiff claims PHP 500,000 but after trial he is only
entitled to PHP 100,000, subject matter jurisdiction is with the RTC. See:
Ratilla v. Tapucar, 75 SCRA 64
2.1.d
It cannot be made to depend on the defenses interposed in an
answer or a motion to dismiss AS IT IS THE COMPLAINT, PETITION
OR INITIATORY PLEADING THAT BRINGS THE CASE FOR TRIAL
AND JUDGMENT ALTHOUGH THE DEFENDANT MAY IN HIS
ANSWER OR MOTION ATTACK JURISDICTION if the Rule were
otherwise NO ACTION CAN PROSPER as all the defendant has to do
is to allege that jurisdiction is vested in another court. The EXCEPTION
is the defense of agricultural tenancy. See Section 3, Rule 70
2.2
Determined by the law in force at the time of the
commencement of the action
2.2.a
If action for payment of a sum of money is filed after the
effectivity of RA 7961 on April 15, 1994 (Expanding the jurisdiction of
the MTC and implemented by Adm. Circular 9-94-June 14, 1994)
interest, damages of whatever kind ( as long as incidental), attorneys
fees, litigation expenses and costs are not to be considered in fixing the
jurisdictional amount, but must be specifically alleged and filing fees
paid thereon
2.2.b
There is a shipment of goods from HK to Manila. The shipment
was short. Consignee sued in Manila, carrier moved to dismiss for lack of
jurisdiction since the Bill of Lading provided that in case of dispute, suit
must be brought in HK. Motion will not prosper as jurisdiction is
conferred by law and cannot be stipulated by the parties.
DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION
EXERCISED BY THE COURTS
1. AS TO THE NATURE OF THE EXERCISE OF JURISDICTION it
is General, meaning it is exercised over all kinds of cases or Limited,
meaning it exercised over and extends only to a particular or specified
cases
2. AS TO THE NATURE OF THE CAUSE OR THE ACTION it is
Original, meaning it is exercised by courts in the first instance or
Appellate, meaning it is exercised by a superior court to review and
decide a cause or action previously decided by a lower court.
3. AS TO THE EXTENT OF THE EXERCISE OF JURISIDICTION it
is Exclusive, meaning it is confined to a particular court or
CONCURRENT, meaning two or more courts have jurisdiction at the
same time and place. In this instance, the court which has first validly
acquired jurisdiction takes it to the exclusion of the others. NOTE
THOUGH the DOCTRINE OF HIERARCHY OF COURTS which
requires litigants to initially seek proper relief from the lower courts in
those cases where the Supreme Court has concurrent jurisdiction with the
Court of Appeals and the Regional Trial Court to issue the extraordinary
writs of certiorari, prohibition or mandamus. The Supreme Court is a
court of last resort and its jurisdiction to issue extra-ordinary writs should
be exercised only when absolutely necessary, or where serious and
important reasons therefor exist. See Pearson v. IAC, 295 SCRA 27.
Also, concurrence of jurisdiction does not grant any party seeking any of
the extra-ordinary writs the absolute freedom to file the petition with the
court of his choice. See: Ouano vs. PGTT International Investment
Corporation, 384 SCRA 587
2
4. AS TO SITUS it is Territorial, meaning it is exercised within the

limits of the place where the court is located or Extra-Territorial meaning
it is exercised beyond the confines of the territory where the court is
located.
WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED

Jurisdiction once acquired continues until the case is terminated. It is not
affected by subsequent legislation placing jurisdiction in another tribunal.
See Mercado vs. Ubay, 187 SCRA 719. The exception is when the
expressly provides for retroactivity. See Latchme Motoomull v. Dela Paz,
187 SCRA 743
DOCTRINE OF PRIMARY JURISDICTION
That which vests in an administrative tribunal the jurisdiction to
determine a controversy requiring the exercise of sound administrative
discretion stated otherwise if jurisdiction is vested upon an
administrative body, no resort to courts can be made until the
administrative body shall have acted on the matter.
WHEN CAN THE ABSENCE OF JURISDICTION BE QUESTIONED
The general rule is jurisdiction may be questioned at any stage of the
proceedings, even on appeal, BUT a party may be barred from raising it
on the ground of laches or estoppel when he has actually invoked the
jurisdiction of the court by participating in the proceedings, then
belatedly questions lack of jurisdiction after judgment has gone against
him. See: Tijam v. Sibonghanoy, 23 SCRA 29, Lopez v. Northwest 223
SCRA 469, Soliven v. FastForms Phil. Inc, GR No. 139091, October 18,
2004, citing PNOC v. CA,. 297 SCRA 402, APT v. CA 300 SCRA 597
and Producers Bank v. NLRC, 298 SCRA 517. See also: Sections 2 and
3, Rule 47 Annulment of Judgment based on extrinsic fraud or lack of
jurisdiction.If based on lack of jurisdiction before it is barred by laches or
estoppel.
PROBLEM AREAS AFFECTING JURISDICTION

1.
ACTIONS INCAPABLE OF PECUNIARY ESTIMATION
1.1
Generally, it is one where the basic issue is something other than
the right to recover money, where the money claim is incidental to or is a
consequence of the principal relief being sought. It is a claim, the subject
of which cannot be estimated in terms of money.
1.2
Examples: Action for specific performance although damages
are being sought BUT if damages are part of an alternative prayer,
jurisdiction should be based on the amount. OTHERS: Action for
appointment of receivers, expropriation, interpleader, support, and
rescission
1.3
In determining which court has jurisdiction, the applicable test
is the NATURE OF THE ACTION TEST (Determination as to whether
or not the action is capable of pecuniary estimation. If not capable,
jurisdiction is with the RTC. If capable-jurisdiction is determined by the
amount claimed/value of the personal property) BUT this test must yield
to the PRIMARY OBJECTIVE TEST (where notwithstanding the fact
that the action appears to be incapable of pecuniary estimation, if the
primary objective is to recover real property, jurisdiction will be
determined by the assessed value of the real property)
2.
DETERMINATION OF AMOUNTS OF THE CLAIM TO
DETERMINE JURISDICTION AND PAYMENT OF DOCKET FEES 2.1
Foreclosure of chattel to collect 100K but actual value is 500K
MTC RULE: Jurisdiction is determined by the amount claimed by the
plaintiff.
2.2
Action for removal of improvements with prayer for 10,000 for
attorneys fees RTC incapable of pecuniary estimation.
2.3
Action to collect sum of money within jurisdiction of the
MTC but with accessory prayer for damages beyond MTC jurisdiction
MTC - if action is personal, damages are to be excluded (Adm Circ.
09-94 June 14, 1994) for determining jurisdiction but payment is still to
be collected Damages, Interest, Attorneys fees and Litigation costs.
BUT if action is for damages over 400K RTC because it is the main
cause of action or one of the causes of action.
3. IF DOCKET FEES ARE INCORRECT The trial court should allow
the plaintiff to pay within a reasonable period of time before the
expiration of the applicable prescriptive or reglamentary period
EFFECT defendant must move to dismiss the complaint on the ground
of lack of jurisdiction if not he may be considered to be in estoppel. See
NSC v. CA GR 123215, Feb 2, 1999)
4. DOCKET FEES FOR MAIN/REAL ACTION PAID BUT THOSE
FOR RELATED DAMAGES ARE NOT PAID Trial court may expunge
the claims or allow on motion, a reasonable time for amendment of the
complaint or accept payment of the requisite legal fees.
5. IF CLAIMS ARE UNSPECIFIED BUT ARISE AFTER FILING The
required additional fee shall constitute a lien on the judgment
LEVELS OF SUBJECT MATTER JURISDICTION
1. JURISDICTION OF THE SUPREME COURT
The jurisdiction of the Supreme Court in civil cases of which it cannot
be deprived and which cannot be diminished by Congress is to review,
revise, reverse, modify, or affirm on appeal or certiorari as the law or the
Rules of Court may provide, final judgments and orders of lower courts
in: (a) all cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question;
(b) all cases involving the legality of any tax, impost, assessment, or toll,
or any penalty imposed in relation thereto; (c) all cases in which the
jurisdiction of any lower court is in issue; and (d) all cases in which only
an error or question of law is involved.
4
The foregoing Constitutional definition is of appellate jurisdiction.

Congress, however, is not prohibited from increasing or adding to this
Constitutionally-defined jurisdiction. And so Congress has given the
Supreme Court original jurisdiction over cases affecting ambassadors,
other public ministers, and consuls and petitions for the issuance of writs
of certiorari, prohibition and mandamus against the Court of Appeals.
Congress has also vested the Supreme Court with jurisdiction, concurrent
with the RTCs, over petitions for the issuance of the writs of certiorari,
prohibition, habeas corpus, and in actions brought to prevent and restrain
violations of law concerning monopolies and combinations in restraint of
trade.
The appellate jurisdiction in civil cases of the Supreme Court as
defined in the Constitution had been revised and expanded a little bit
more by law to include all cases involving petitions for naturalization or
denaturalization, all decisions of the Auditor General, if the appellant is a
private person or entity, and final judgments or orders of the Commission
on Elections.
2. JURISDICTION OF THE COURT OF APPEALS
The Court of Appeals has both original and appellate jurisdiction. Its
original jurisdiction, which is exclusive, is over actions for annulment of
RTC judgments. Its original jurisdiction, which is concurrent with the
Supreme Court and the RTCs, is to issue writs of mandamus, prohibition,
certiorari, habeas corpus and quo warranto, and auxiliary writs or
processes, whether or not in aid of its appellate jurisdiction.
The appellate jurisdiction of the Court of Appeals, which is exclusive,
is over final judgments or resolutions of RTCs and quasi-judicial
agencies, such as the Securities and Exchange Commission,
Sandiganbayan an National Labor Relations Commission.
3. JURISDICTION OF REGIONAL TRIAL COURTS
The RTCs are our second-level trial courts. As the Supreme Court and
the Court of Appeals, RTCs have both original and appellate jurisdiction
in civil cases.
Their original jurisdiction is concurrent with the Supreme Court and
the Court of Appeals in the issuance of writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunctions but, as issued
by RTCs, these writs may be enforced only within their respective
regions, and over actions affecting ambassadors and other public
ministers and consuls. The original jurisdiction of RTCs, which is
exclusive, is broad and covers the following cases: (1) all civil actions in
which the subject of the litigation is incapable of pecuniary estimation;
(2) all civil actions which involve the title to, or possession of, real
property, or any interest therein, where the assessed value of the property
involved exceeds Two hundred thousand pesos (P200,000.00) or for civil
actions in Metro Manila, where such value exceeds Four hundred
thousand pesos (P400,000.00) except actions for forcible entry into and
unlawful detainer of lands or buildings, original jurisdiction over which
is conferred upon the Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts; (3) all actions in admiralty and
maritime jurisdiction where the demand or claim exceeds Two hundred
thousand pesos (P200,000.00) or in Metro Manila, where such demand or
claim exceeds Four hundred thousand pesos (P400,000.00); (4) all
matters of probate, both testate and intestate, where the gross value of the
estate exceeds Two hundred thousand pesos (P200,000.00) or, in probate,
both testate and intestate, where the gross value of the estate exceeds
Two hundred thousand pesos (P200,000.00) or, in probate matters in
Metro Manila, where such gross value exceeds Four hundred thousand
5
pesos (P400,000.00); (5) all actions involving the contact of marriage and
marital relations; (6) all cases not within the exclusive jurisdiction of any
court, tribunal, person or body exercising jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial functions;
(7) all civil actions and special proceedings falling within the exclusive
jurisdiction of a Juvenile and Domestic Relations Court and of the Court
of Agrarian Relations as then provided by law; and (8) all other cases in
which the demand, exclusive of interest, damages of whatever kind,
attorneys fees, litigation expenses, and costs or the value of the property
in controversy exceeds Two hundred thousand pesos (P200,000.00) or, in
such other cases in Metro Manila, where the demand, exclusive of the
above-mentioned items exceeds For hundred thousand pesos
(P400,000.00).
The appellate jurisdiction of the RTCs is over all cases decided by
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts in their respective territorial jurisdiction.
The term damages of whatever kind has been specially defined by
the Supreme Court for purposes of determining the jurisdictional amount
in respect to the jurisdiction of the RTC. This term is understood to apply
only to cases when the damages are merely incidental to or a
consequence of the main cause of action, and that therefore where the
claim for damages is the main cause of action or one of the causes of
action, the amount of the claim shall be considered in determining the
jurisdiction of the court.
The Supreme Court has however designated certain branches of the
RTCs to handle exclusively certain cases as corporate and intellectual
property cases.
4. JURISDICTION OF METROPOLITAN TRIAL COURTS,
MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL
COURTS
The MTCs are the first-level trial courts in this country. They have
therefore no appellate jurisdiction and all their jurisdiction is exclusive
and encompasses the following cases: (1) all civil actions and probate
proceedings, testate and intestate, including the grant of provisional
remedies in proper cases, where the value of the personal property, estate,
or amount of the demand does not exceed Two hundred thousand pesos
(P200,000.00) or, in Metro Manila where such personal property, estate,
or amount of the demand does not exceed Four hundred thousand pesos
(P400,000.00), exclusive of interest, damages of whatever kind,
attorneys fees, litigation expenses, and costs, the amount of which must
be specifically alleged: Provided, That where there are several claims or
causes of actions between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the totality of the
claims in all the causes of action irrespective of whether the causes of
action arose out of the same or different transactions; (2) cases of forcible
entry and unlawful detainer: Provided, That when, in such cases, the
defendant raises the question of ownership in his pleadings and the
question of possession cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved only to determine the
issue of possession; and (3) all civil actions which involve title to, or
possession of, real property or any interest therein where the assessed
value of the property or interest therein does not exceed Two hundred
thousand pesos (P200,000.00) or, in civil actions in Metro Manila, where
such assessed value does not exceed Four hundred thousand pesos
(P400,000.00) exclusive of interest, damages of whatever kind, attorneys
fees, litigation expenses and costs.
The MTCs may however be assigned by the Supreme Court to hear

and determine certain cadastral cases and petitions for habeas corpus.
RULE I GENERAL PROVISIONS

The Rules shall be known and cited as the Rules of Court. 1 They shall
apply in all courts, except as otherwise provided by the Supreme Court 2
in civil, criminal and special proceedings. 3They do not apply to election
cases, land registration, cadastral, naturalization and insolvency, and
other cases not herein provided, except by analogy or in suppletory
character and whenever practicable and convenient.4
For purposes of the subject matter, only Rules 1 to 71 or the 1997 Rules
of Civil Procedure shall be discussed herein.
1.A Civil Action is one by which a party sues another for the
enforcement or protection of a right or the prevention or redress of a
wrong. Examples: To enforce payment of a loan or to eject an intruder on
ones property.
1.1
A Civil Actions may be:
1.1.a
ORDINARY or SPECIAL both are governed by the rules for
ordinary civil actions, subject to specific rules prescribed for a special
civil action.
1.1.b
IN PERSONAM- brought against a person based on personal
liability to the person bringing the action
1.1.c
IN REM- it is directed against the thing itself rather than the
person
1 Section 1, Rule 1, 1997 Rules of Civil Procedure

2 Supra, Section 2, Rule 1
4 Supra,,Section 4, Rule 1
7
1.1.d
QUASI IN REM names a person as a defendant but its object
is to subject the persons interest in property to a corresponding lien or
obligation (Ramos vs. Ramos, 399 SCRA 43)
1.2
Distinguishing it from other kinds of actions:
1.2.a
CRIMINAL - one by which the state prosecutes a person for an
act or omission punishable by law.
1.2.b
SPECIAL PROCEEDING remedy by which a party seeks to
establish a status, right or a particular fact.
1.3
DISTINCTIONS BETWEEN A CIVIL ACTION AND SPECIAL
PROCEEDINGS
CIVIL ACTION
Adversarial-between plaintiff and
and defendant
formal demand of a right by one
against the other
SPECIAL PROCEEDINGS
not necessarily as it may involve only 1
party
declaration of a status, right or a parti
cular fact
WHEN AN ACTION IS COMMENCED
An action is commenced upon the filing of the original complaint in
court. If an additional defendant is impleaded in a later pleading it is
commenced on the date of the filing of the later pleading
IRRESPECTIVE OF WHETHER THE MOTION FOR ITS
ADMISSION, IF NECESSARY, IS DENIED BY THE COURT.5
1.Note though that FILING IS DEEMED DONE ONLY UPON
PAYMENT OF THE DOCKET FEE REGARDLESS OF ACTUAL
DATE OF THE FILING OF THE COMPLAINT 6 (MAGASPI V.
RAMOLETE 115 S 193)
EXCEPT if the plaintiff is authorized to litigate as a pauper litigant he
is exempt from filing fees.
2.Note that the commencement of the action interrupts the period of
prescription as to the parties to the action.7
HOW SHOULD THE RULES BE CONSTRUED
The rules shall be construed liberally in order to promote their objective
of securing a just speedy and inexpensive disposition of every action or
proceeding.8

6 Magaspi v Ramolete, 115 SCRA 193
7 Cabrera v Tiano,8 SCRA 542
8
1.Liberal construction is the controlling principle to effect substantial

justice. Litigation should as much as possible, be decided on their merits,
and not on technicalities. It does not mean, however, that procedural rules
are to be ignored or disdained at will to suit the convenience of a party.9
2.Liberal construction of the rules should be made by the courts in cases:
(1) a rigid application will result in manifest failure or miscarriage of
justice, especially if a party successfully shows that the alleged defect in
the questioned final and executory judgment is not apparent on its face or
from the recitals contained therein (2) where the interest of substantial
justice will be served (3) where the resolution of the motion is addressed
solely to the sound and judicious discretion of the court (4) where justice
to the adverse party is not commensurate with the degree of this
thoughtlessness in not complying with the procedure prescribed.10
3.Note that in doing so, substantial justice and equity considerations must
not be sacrificed. Periods for filing are as a matter of practice, strictly
construed. Neither can liberality of the rules be invoked if it will result in
the wanton disregard of the rules or cause needless delay in the
administration of justice.11
4.Concommitant to a liberal application of the rules of procedure should
be an effort on the part of the party invoking liberality to adequately
explain his failure to abide by the rules.12
5.The rules and procedure laid down for the trial court and the
adjudication of cases are matters of public policy. They are matters of
public order or interest which can in no wise be changed or regulated by
agreements between or stipulations by parties to an action for their
singular convenience.13 (Republic vs. Hernandez, 253 SCRA 509)
6.The Supreme Court has the power to suspend or set aside its rules in
the higher interest of justice.14
RULE 2CAUSE OF ACTION

The basis of an ordinary civil action is a cause of action. 15 A cause of
action is the act or omission by which a party violates a right of another.16
WHAT ARE THE REQUISITES OF A CAUSE OF ACTION
The requisites for a cause of action are: (1) a right in favor of the plaintiff
by whatever means and under whatever law it arises or is created (2) an
obligation on the part of the defendant to respect and not to violate such
right (3) an act or omission on the part of the defendant constituting a
violation of the plaintiffs right.17
8 Supra,Section 6, Rule 1
9 Vda De Toledo v Toleda, 417 SCRA 260
10 Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755
11 El Reyno Homes v Ong, 397 SCRA 563
12 Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684
13 Republic v Hernandez, 253 SCRA 509
14 Fortica v Corona, GR No. 131457, April 24, 1998
17 Navao v CA, 251 SCRA 545
9
DISTINGUISHING IT FROM RIGHT OF ACTION

RIGHT OF ACTION is the right to commence and maintain an action, it
is a remedial right that depends on substantive law, while a CAUSE OF
ACTION is a formal statement of the operative factsthat give rise to such
remedial right which is a matter of statement and is governed by
procedural law. WHEN ALL ELEMENTS OF A CAUSE OF ACTION
ARE PRESENT, THERE WILL BE A RIGHT OF ACTION
The distinction is best used to explain the principle that the existence of a
cause of action may only be ascertained from the allegations of the
complaint.18
HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION
A party may not institute more than one suit for a single cause of action.19
1.
If a party institutes more than one suit, the filing of one or a
judgment upon the merits in anyone is available as a ground for the
dismissal of the others.20 This is also known as SPLITTING A CAUSE
OF ACTION.
2.The SINGLENESS OF CAUSE OF ACTION of a cause of action is
determined as follows:
2.1
In an action EX DELICTO, the singleness of a cause of action
lies in the singleness of the delict or wrong violating the right of a
person. If however, one injury results from several wrongful acts, only
one cause of action arises. Example: A party who is injured could not
maintain an action for damages based on a breach of the contract of
carriage against the owner of the vehicle in which he was riding and
another action for quasi-delict against the driver/owner of the offending
vehicle. The recovery under one remedy necessarily should bar recovery
under another. This, in essence, is the rationale for the proscription in our
law againt double recovery for the same act or omission which,
obviously stems from the fundamental rule against unjust enrichment.21
2.2In an action EX CONTRACTU, the rules are as follows:
2.2.a
In a single or indivisible contract, only one cause of action
arises from a single or several breaches. Example: In a contract of sale of
personal property by installments, the remedies of the unpaid seller is
alternative, they are: (1) elect fulfillment (2) cancel the sale, should the
vendees failure to pay cover two or more installments, and (3) foreclose
the mortgage on the thing sold if one has been constituted should the
vendee fail to pay two or more installments. 22
2.2.bIf the contract provides for several obligations, each obligation not
performed gives rise to a single cause of action. But if upon filing of the
complaint several obligations have already matured, all of them shall be
integrated into a single cause of action. Example: Contract for delivery of
goods in part or over a period.
18 Equitable Bank v CA, 425 SCRA 544

21 Joseph v Bautista, 170 SCRA 540
22 Articles 1484,1486, NCC
10
2.2.c
If the contract is divisible in its performance, and the future
performance is not yet due, but the obligor has already manifested his
refusal to comply, the contract is entire and the breach is total. Thus,
there can only be one action.23
IF A PARTY HAS SEVERAL CAUSES OF ACTION
He can join his causes of action24 as he may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may have against
the opposing party, subject to the following conditions:
1.party joining the causes of action shall comply with the rule on joinder
of parties, which provides that : All persons in whom or against whom
any right to relief is respect to or arising out of the same transaction is
alleged to exist, whether jointly, severally or in the alternative, may
except as otherwise provided in these rules, join as plaintiffs or be joined
as defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise in the
action.25
2.joinder does not allow the inclusion of special civil actions or actions
governed by special rules . Example: An action for a sum of money
cannot be joined with an action for iIlegal detainer
3. where causes of action are between same parties but pertain to different
venues or jurisdictions, joinder may be allowed in the RTC provided one
of the causes of action falls within its jurisdiction and venue lies therein.
4. when the claims in all causes of action are principally for recovery of
money, the aggregate amount shall be the test of jurisdiction.
EFFECT OF MISJOINDER
Upon motion of a party or on the initiative of the court, a misjoined cause
of action may be severed and proceeded with separately.26
RULE 3PARTIES TO CIVIL ACTIONS
WHO MAY BE PARTIES TO A CIVIL ACTION
Only natural or juridical persons or entitles authorized by law may be
parties in a civil action.27 They are called: PLAINTIFF he is one who
has interest in the subject of the action and obtaining the relied
demanded. He may be the claimant in the original complaint, the counterclaimant in the counter claim, or cross-claimant in a cross-claim or the
third party plaintiff and the DEFENDANT he is one who has an
interest in the controversy adverse to the plaintiff. He may be the original
defending party, the defendant in a counter-claim, or cross-defendant in a
cross-claim.
For ready reference, a COUNTER-CLAIM is any claim which a
defending party may have against an opposing party.28A CROSS-CLAIM
23 Blossom & Co v Manila Gas Corporation, 55 Phil 226

27 Supra,,Section 1, Rule 3
11
is a claim by one party against a co-party arising out of the transaction or

occurrence that is the subject matter either of the original action or of a
counter-claim therein.29A THIRD PARTY CLAIM is a claim that a
defending party may, with leave of court, file against a person not party
to an action for contribution, indemnity, subrogation or any other relief,
in respect to his opponents claim.30
1.The state or any of its political subdivisions, while considered as
juridical entities, they can sue but as a general rule, they cannot be sued
without its consent.
2.
A foreign corporation cannot be a plaintiff in suit when it is
transacting business in the Philippines without a license.
3. Entities authorized by law are recognized labor organizations and
entities without legal personality referring to 2 or more persons not
organized as an entity with juridical personality enter into a transaction,
they may be sued under the name by which they are generally or
commonly known but in their answer to the complaint, their names and
addresses must be revealed.31
4.A sole proprietorship may not be a party as it is neither a natural,
juridical or entity allowed or authorized by law. If one sues as such, the
action may be dismissed on the ground of lack of capacity to sue. It does
not possess a juridical personality separate and distinct from the
personality of the owner of the enterprise.32It cannot sue or file or defend
an action in court.33
PARTIES IN INTEREST
A real party in interest in the party who stands to be benefited or injured
by the judgment or party entitled to the avails of the suit. UNLESS
OTHERWISE AUTHORIZED BY LAW OR THE RULES all actions
must be prosecuted or defended in the name of the real party in interest.34
1.A real party in interest-plaintiff is one who has a legal right, while a
real party in interest-defendant is one who has a correlative obligation,
whose act or omission violates the legal rights of the former.35
2.WHEN A SUIT IS NOT BROUGHT IN THE NAME OF THE REAL
PARTY IN INTEREST,it may be dismissed on the ground that the
complaint states no cause of action. 36 Note that the dismissal is not due to
lack of or no legal capacity to sue nor lack of legal personality, as the
latter is not ground for dismissal for dismissal under the 1997 Rules of
Civil Procedure.
2.1It states NO CAUSE OF ACTION BECAUSE IT IS NOT BEING
PROSECUTED IN THE NAME OF THE REAL PARTY IN INTEREST.
2.2
LACK OF LEGAL CAPACITY TO SUE means that the
plaintiff is not in exercise of his civil rights, does not have the necessary
qualification to appear or does not have the character or representation he
claims. Example: Trustee or Minor, AS DISTINGUISHED FROM

32 Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA 763
33 Juasing Hardware v Mendoza, 115 SCRA 783
35 Gan Hock v. Court of Appeals, 197 SCRA 223
36 Tankiko v Cesar, 302 SCRA 559
12
LACK OF LEGAL PERSONALITY means that the plaintiff is not the

real party in interest. Dismissal is based on the fact that the complaint
states no cause of action
3. Legal standing means a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of
the act being challenged. The term interest is material interest, an interest
in issue, and to be affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest. Moreover,
the interest must be personal and not one based on a desire to vindicate
the constitutional right of some third or unrelated party.
CLASSIFICATION OF REAL PARTIES IN INTEREST
1. INDISPENSABLE PARTY is a party without whom no final
determination can be had of an action.37 They are those with such an
interest in the controversy that a final decree would necessarily affect
their rights, so that the courts cannot proceed without their presence.
Example: owners of property over which reconveyance is asserted are
indispensable parties without whom no relief is available and without
whom the court can render no valid judgment.38
1.1Without the presence of indispensable parties to the suit, the judgment
of the court cannot attain real finality.39
2. NECESSARY PARTY is a party who is not indispensable but who
ought to be joined as a party if complete relief is to be accorded as to
those already parties or for a complete determination or settlement of the
claim subject of the action.40 A necessary partys presence is necessary to
adjudicate the whole controversy but whose interests are so far separable
that a final decree can be made in their absence without affecting them.
Example: If the plaintiff only sues a one of his joint debtors, the joint
debtor who is not sued is merely a necessary party. As a consequence, the
plaintiff only recovers the share of the debt due from the joint debtor
defendant.
2.2A necessary party is to be impleaded as a party for complete
determination of an action, while an indispensable party is impleaded for
a final determination of an action.
PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN
INTEREST
The following may sue in behalf of a real party in interest
1. REPRESENTATIVES- actions are allowed to be prosecuted / defended
by a representative or by one acting in a fiduciary capacity BUT the
BENEFICIARY SHALL BE INCLUDED IN THE TITLE and shall be
deemed to be the REAL PARTY IN INTEREST.41
1.1Examples of representatives are: (1) trustee of an express trust (2) a
guardian, executor or administrator, or (3) a party authorized by law or
the Rules.

38 Valenzuela v Court of Appeals, 363 SCRA 779
39 Domingo v Scheer, 421 SCRA 468
13
1.2
An agent acting in his own name and for the benefit of an
unknown principal may sue or be sued without joining the principal
except when the contract involves things belonging to the principal. This
refers to an AGENCY WITH AN UNDISCLOSED PRINCIPAL.42
2.HUSBAND AND WIFE- as a general rule shall sue or be sued jointly,
except as provided by law.43 Non joinder of partys husband is not fatal. It
is a mere formal defect.44
2.1They are required to sue and be sued jointly as they are joint
administrators of the Absolute Community or the Conjugal Partnership.45
2.2The exceptions provided by law are when the property relations of
husband and wife are governed by the rules on separation of property 46
or one is disposing of exclusive property.47
2.3NOTE that the legal provision against the disposition of conjugal
property by one spouse without the consent of the other has been
established for the benefit, not of third persons, but only for the spouse
for whom the law desires to save the conjugal partnership from damages
that might be caused. No other party can avail of the remedy other than
the aggrieved spouse.48
3.MINORS OR INCOMPETENTS- may sue or be sued with the
assistance of father, mother, guardian or, if he has none, a guardian ad
litem.49
3.1A guardian ad litem is a special guardian appointed by the court in
which a particular litigation is pending to represent or assist a minor or
an incompetent person involved in or has interest in the property subject
of litigation. His status as such exists only in that particular litigation in
which the appointment occurs.
3.2
Note that the appointment of a guardian ad litem may occur in
the following: for minor heirs when substituting for a deceased party50,
incompetency or incapacity of a party51, service of summons on a minor
or incompetent52, and when the best interest of the child require it.53
JOINDER OF PARTIES
Joinder of Parties refers to the act of uniting several parties in a single
suit either as plaintiffs or defendants.
1.The rule on joinder of parties states that: All persons in whom or
against whom any right to relief in respect to or arising out of the same
transaction is alleged to exist, whether jointly, severally or in the
alternative, may except as otherwise provided in these rules, join as
plaintiffs or be joined as defendants in one complaint, where any
42 Article 1883, NCC

44 Miranda v Besa, 435 SCRA 532
45 Articles 96 and 124, Family Code
46 Article 145, Family Code
48 Villaranda v Villaranda, 423 SCRA 571
14
question of law or fact common to all such plaintiffs or to all such

defendants may arise in the action.54
2.Joinder of Parties, as a rule, is permissive when there is a question of
law or fact common to all the plaintiffs or defendants. This means that
the right to relief or to resist the action arises out of the same transaction
or event or series of transactions or events. Example: action by
passengers of a common carrier for injuries sustained in an accident,
there is no community of interest, the extent of the interest is limited to
the extent of damages being claimed by each.
3. It becomes compulsory when the parties to be joined are indispensable
parties.55
4.The exception to compulsory joinder of parties is when the subject of
the action is proper for a class suit. The subject matter of the controversy
is proper for a class suit when it is one of common or general interest to
many persons so numerous that it is impractical to join all as parties. 56
All the parties who are interested in the action as plaintiffs or defendants
are all indispensable parties but not all need to be joined.
4.1The requisites of a class suit are:
1. The subject matter of the controversy is one of common or general
interest to many persons. There must be an INDIVISIBLE RIGHT
AFFECTING MANY INDIVIDUALS WHOSE PARTICULAR
INTEREST IS OF INDETERMINATE EXTENT AND IS INCAPABLE
OF SEPARATION. This requires that the benefit to one is a benefit to all.
Examples: stockholder derivative suits and taxpayer suits.
1.1
Improper for a class suit is when a claimant is interested only in
collecting his claims and has no concern in protecting the interests of the
others.57
2.The parties affected are so numerous that it is impracticable to join all
as parties
3. The parties bringing or defending the class suit are found by the court
to be sufficiently numerous and representative as to fully protect the
interest of all.
To comply with the 2 nd and 3rd requisite, the Complaint most allege: (1)
existence of a subject matter which is of common or general interest to
many persons, and (2) existence of a class and the number of persons
belonging to that class
4.2
It can be brought by the plaintiffs as a class or may be filed
against the defendants as a class
4.3
Any party in interest shall have the right to intervene to protect
his individual interest.
4.4
The general rule, is that the party bringing the suit in his own
name and that of others similarly situated has the right to control the suit,

57 Cadalin v POEA Administrator, 238 SCRA 721
15
BUT, it shall not be dismissed or compromised without the approval of

the court.58
5.If there is a failure to join an indispensable party, the court must order
the plaintiff to amend his complaint for the purpose of impleading the
indispensable party. If the plaintiff fails, refuses or the party cannot be
sued because he is a non-resident defendant in a personal action, the
complaint must be dismissed.59
6.If there is a failure to join a necessary party, the pleader in the pleading
in which a claim is asserted without joining a necessary party shall (1) set
forth the name of the necessary party, if known and (2) state the reason
for omission. If the court finds the reason for the omission is not
meritorious, it may order the inclusion of the omitted necessary party if
jurisdiction over his person is obtained.
If pleader fails to comply with order for inclusion without justifiable
cause, it shall be deemed a waiver of the claim against the party, BUT
the non-inclusion does not prevent the court from proceeding in the
action, and the judgment therein shall be without prejudice to rights of
such necessary party.60
7.MISJOINDER OR NON JOINDER NOT A GROUND FOR
DISMISSAL.Parties may be dropped or added by order of the court on
motion of any party or on its own initiative at any stage of the action and
on such terms that are just. Any claim against a misjoined party may be
severed and proceeded against separately.61
NOTE HOWEVER that if the party to be joined is indispensable and
the plaintiff fails or refuses or such party cannot be sued the complaint
must be dismissed (NDC v. CA 211 S 422)
8.IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT
CONSENT OR CANNOT BE OBTAINED he may be made a defendant
and the reason therefor shall be stated in the complaint.62
DISTINCTIONS BETWEEN
Indispensable party
Necessary party
if not joined action cannot proceed

proceeds judgment
judgment is not valid
the contro-
if
not
joinedaction
is voted but does not resolve

versy.
-non joinder dismissed

claim
non joinder waiver of
WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN

59 NDC v Court of Appeals, 211 SCRA 422
16
If he (plaintiff) uncertain against who of several persons he is entitled

to relief HE MAY JOIN ANY OR ALL OF THEM AS DEFENDANTS
in the ALTERNATIVE although a right to relief against one may be
inconsistent with a right of relief against the other.63
EXAMPLE: An action where the owner of goods is not sure whether
they were lost in transit or while it was on deposit in the warehouse of
the arrastre operator He may sue the shipper or the operator of the
warehouse in the ALTERNATIVE although the right against the
SHIPPER is based on ADMIRALITY, while that against the OPERATOR
is based on CONTRACT. Action for damages arising from loss of goods
due to a collision.
IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN
He may be sued as the unknown owner, heir, devisee or by such other
designation as the case may require WHEN THE IDENTITY OR
NAME IS DISCOVERED the pleading must be amended
accordingly.64 EXAMPLE: Action to recover real property from several
unknown heirs of a common ancestor.
EFFECT OF DEATH OF A PARTY (Sec 16)

When a party dies and his claim is not extinguished it shall be the duty
of counsel to inform the court within 30 days after such death of the :
(1) FACT OF DEATH (2) NAME AND ADDRESS OF LEGAL
REP/REPS
IF NOT, Counsel may be subject to disciplinary action.
ONCE NOTICE IS GIVEN The COURT SHALL ORDER THE
LEGAL REP/S TO APPEAR AND BE SUBSTITUTED WITHIN 30
DAYS FROM NOTICE.
Note: Heirs may be allowed to be substituted for the deceased without
requiring the appointment of an executor or administrator and the court
can appoint a guardian ad litem for minor heirs.
IF LEGAL REP/S DO NOT APPEAR OR NOTICE IS NOT GIVENThe court can order the opposing party, within a specified time to
procure the appointment of an executor or administrator to appear for and
in behalf of the deceased Expenses if paid by opposing party can be
recovered as costs
IF DEATH/SEPARATION OF A PUBLIC OFFICER (Sec 17)
If sued in his public capacity and he dies, resigns or otherwise ceases to
hold office
The action may be MAINTAINED AND CONTINUED by or against his
successor, if within 30 days after successor assumes the office or such
time as granted by the court it is SATISFECTORILY SHOWN by a
party that there is a substantial need for continuing and maintaining it and
that the successor ADOPTS or CONTINUES OR THREATENS to adopt
or continue the action of his predecessor.

17
BEFORE SUBSTITUTION IF NO EXPRESS ASSENT, the public

officer shall be given reasonable notice of the application and be
accorded an opportunity to be heard.
EFFECT OF DEATH OF DEFENDANT ON A CONTRACTUAL
MONEY CLAIM
If the action is for the recovery of money that arises from a CONTRACT,
express or implied, and the defendant dies BEFORE ENTRY OF A
FINAL JUDGMENT, the RULE is it will not be dismissed but shall be
allowed to continue until entry of judgment, a favorable judgment
obtained shall be enforced in the manner provided by the rules for
prosecuting claims against the ESTATE OF A DECEASED PERSON.65
1.RULES TO BE OBSERVED IN CASE OF DEATH OF OBLIGOR
are: (a) If he dies before the action is filed, a money claim must be filed
in the testate or intestate proceedings (b) if he dies during the pendency
of an action, the action continues until entry of judgment, and the
judgment claim is then filed with the testate or intestate proceedings. It
must be noted that a money claim judgment need not be proven because
it is conclusive. NOTE FURTHER, that if property has been levied upon
before death. It can disposed of in the manner provided by the rules on
execution of judgments because it has already been segregated from
estate. If there is a deficiency, a money claim can be filed subsequently.
2. IF IT DOES NOT ARISE FROM CONTRACT, RE: CLAIMS FOR

RECOVERY, ENFORCEMENT OF A LIEN OR DAMAGES DUE TO
TORT, the rules are: (a) if he dies before the action is filed, it may be
filed against the executor or administrator (b) if already filed , it
continues to final judgment and may be executed on as against the
executor or administrator.66
3.In a case for ejectment where the defendant died before the case could
be decided and without being able to testify on his counterclaim for
damages. The trial court dismissed the ejectment suit and ordered the
plaintiff to pay the wife of the defendant moral damages and attorneys
fees. The plaintiff contends on appeal that the counterclaim should have
been dismissed pursuant to Rule 3, Section 21 (old rule). HELD: The
argument is misplaced, defendant was the plaintiff in his counterclaim,
the rule is not applicable as it pertains to a defendant who dies before
final judgment. In this case, it is the plaintiff who died and all that is
required is a timely motion for substitution. No recovery though can be
allowed as no evidence was adduced.67
4.If a claim involves a conjugal debt that was not brought and one of the
spouses die before filing, the claim must be brought in the testate or
intestate proceedings of the deceased spouse.68 ( Alipio v. CA, GR.
134100, 9-29-2000)
5.IF IT IS THE PLAINTIFF WHO DIES: (a) if action is purely personal
to him, the action is abated (b) if action is not purely personal, it
continues but counsel must give notice of death.

67 UST v Court of Appeals, GR No. 124250, October 18, 2004
68 Alipio v Court of Appeals, GR No. 134100, September 29, 2000
18
EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION

1. The court, upon motion with notice, may allow the action to be
continued by or against the incompetent or incapacitated person assisted
by his guardian or guardian ad litem.69
EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION
1.The action may be continued by or against the original party, unless
the court upon motion directs the person to whom interest is transferred
to be substituted in the action or joined with the original party.70
2.The rule refers to a transfer pendente lite. The transferee pendente lite
shall stand exactly in the shoes of the transferor. Consequently, any
judgment will be binding upon him.
3. A transferee pendent elite does not have to be included or impleaded
by name in order to be bound by the judgment because the action or suit
may be continued for or against the original party or the transferor and
still binding on the transferee.71
4.In a case on appeal where the transferee pendente lite did not appeal, he
nevertheless was benefited by the appeal of the transferor pendent elite. 72
INDIGENT/PAUPER LITIGANT
1.An indigent or pauper litigant Is one who litigates on a claim that he
has no money, or property sufficient and available for food, shelter and
basic necessities for himself and his family.73
2.An indigent or pauper litigant must file an ex-parte application for
authority to litigate as an indigent that is too be resolved by the court
after hearing. Attached to the motion is an affidavit attesting to the fact
that he does not earn a gross income of PHP 4000.00 in Metro-Manila,
or PHP 3,000.00 elesewhere and has no real property with a fair market
value of PHP 50,000.00. Said affidavit must be supported by another
affidavit of a disinterested person. Note that recently, an indigent litigant
has been defined as one (a) whose gross income and that of their
immediate family does not exceed an amount double the monthly
minimum wage of an employee and (b) who does not own real property
with a fair market value as stated in the current tax declaration of more
than PHP 300,000.00. If there is any falsity in the affidavit or that of the
disinterested person, it shall constitute sufficient ground to dismiss the
action or strike out the pleading, without prejudice to whatever criminal
liability is incurred.74
3.The effect of being allowed to litigate as an indigent or pauper litigant
are: (1) exemption from the payment of docket fees and other lawful fees
(2) exemption from TSN fees which the Court may order to be furnished
BUT, the amounts due shall be a LIEN on a favorable judgment unless
the Court orders otherwise.
4. The allowance to litigate as an indigent or pauper litigant can be
contested at any time before judgment is rendered by any adverse party.
If found to be meritorious, the proper fees are assessed and are to be
69 Supra, Section 3 and 18, Rule 3

71 State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47
72 Jocson v Court of Appeals, GR 88297, March 22, 1990
73 Supra, Section 21
74 Section 19, Rule 141, Rules of Court
19
collected. IF NOT PAID, execution shall issue on the payment thereof

without prejudice to other sanctions.
5. On appeal, a motion to litigate as an indigent or pauper litigant is
allowed.
WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR
In any action involving the validity of any treaty, law, ordinance,
executive order, presidential decree, rule or regulation, the court, in its
discretion, may require the appearance of the SOLGEN, who may be
heard in person or through a representative duly designated by him.75
RULE 4 VENUE OF ACTIONS
1.Venue is the place where the action is to be commenced and tried. It
has also been defined as the proper location for the trial of a case.
2. Distinguishing it from jurisidiction: (a) venue is the place where
action is commenced and tried, jurisdiction is the authority of a court to
hear
and decide the action (b) venue may be waived, jurisdiction
over the subject matter cannot be waived, but that over the person can be
waived (c) venue may be the subject of a written agreement, jurisdiction
cannot be subject of a written agreement (d) a court cannot motu-propio
dismiss on improper venue, while when there is no jurisdiction, a court
can motu-propio dismiss the action.
3. The following are the rules on venue:
3.1
IF IT IS A REAL ACTION or one that affects title to or
possession of real property, or interest therein, it shall be commenced and
tried in the proper court which has jurisdiction over the area wherein the
real property involved or a portion thereof is situated. Forcible Entry and
Detainer actions are to be commenced and tried in the Municipal Trial
Court which has jurisdiction over the area wherein the real property
involved, or any portion thereof, is situated.76
2.IF IT IS A PERSONAL ACTION or one that is brought for the
recovery of personal property, for the enforcement of a contract or
recovery of damages for its breach of for the recovery of damages due to
injury to person or property or such all other actions shall be commenced
or tried where the plaintiff or ANY OF THE PRINCIPAL PLAINTIFFS
reside or any of the defendants reside, or if a NON-RESIDENT
DEFENDANT, where he may be FOUND at the election of the plaintiff77
2.1RESIDE means the place of abode, whether permanent or temporary
as distinguished from domicile fixed permanent residence, where if
one is absent he intends to return.
2.2
Is the complaint for cancellation of a real estate mortgage with
damages, a real or personal action? It is a real action, the controlling
factor in determining venue of such a case is the primary objective for
which it is filed. An action for cancellation of a real estate mortgage is
necessarily an action affecting title to real properties since the primary
objective is to recover the properties that the bank had foreclosed on.78

78 Go v UCPB, GR No. 156187, November 11, 2004
20
2.3In personal actions, it is the residence of the proprietor, not the

business address of the sole proprietorship that is considered to determine
venue as a sole proprietorship has no legal personality.79
2.4R engaged the services of L as geodetic surveyor to subdivide two
parcels of land located in Batangas. As payment for Ls services, R
agreed to given him one lot. After the survey, R delivered to L possession
of one lot as payment for his services. However, R failed to deliver to L
the tile of the lot. L, who resides in Quezon City, filed with the RTC of
Quezon City an action against R for specific performance to compel R to
deliver to him the title to the lot. R moved to dismiss on the ground of
improper venue, contending that since his is a real action, the complaint
must be filed in the RTC of Batangas where the lot is situated. Is R
correct? No, R is not correct. This action for specific performance is a
personal action. The venue therefore, was properly laid in Quezon City
where the plaintiff resides. It is not a real action because plaintiff L is not
seeking the recovery of the lot as he is already in possession thereof. He
is merely asking the delivery of the title to him, which is a personal
action.80
3.IF DEFENDANT IS A NON-RESIDENT or one who does not reside
and is not found in the Philippines, and the action affects the personal
status of the plaintiff , or any property of said defendant located in the
Philippines, the action may be commenced and tried in the court of the
place where the plaintiff resides, or where the property or any portion
thereof is situated or found.81
3.1The provision refers to a Quasi in Rem action in which an individual
is named as a defendant, and the purpose of the action is to subject his
interest therein to an obligation or lien burdening the property.
3.2
A non-resident alien who cannot be found can sue and be sued
as by filing his complaint, he submits to the jurisdiction of the Court,
even if he has never been able to enter the Philippines. 82 (Dilweg vs.
Philipps, 12 S 243)
THE RULES ON VENUE ARE NOT APPLICABLE

The rules on venue will not apply if: (1) in cases where a specific rule or
law provides otherwise (2) Where the parties have validly agreed in
writing BEFORE FILING OF THE ACTION ON EXCLUSIVE
VENUE83
1.EXAMPLES: (1) Quo Warranto proceedings may be instituted in the
Supreme Court, Court of Appeals or the Regional Trial Court exercising
territorial jurisdiction over the area where the respondent/s reside. If the
79 Mangila v Court of Appeals, 387 SCRA 162

80 Dimo Realty & Development, Inc. et al. v. Dimaculangan, G.R. NO. 130991, March 11, 2004

82 Dilweg v Philipps, 12 SCRA 243
21
Solicitor General commences the action, he may do so in the Supreme

Court, Court of Appeals or the Regional Trial Court of Manila. 84 The
criminal or civil action for damages due to libel can only be instituted
either in Regional Trial Court of the place where he holds office or in the
place where the alleged libelous article was printed and first published;
and if the offended parties are private individuals, the venue shall be in
the Regional Trial Court of the place where the libelous article was
printed and first published or where any of the offended parties actually
resides at the time of the commission of the offense 85
or 2.Art 360,
RPC. Libel Civil and Criminal action to be distributed in the RTC
where public official holds office or where libelous article was first
printed or published (3) Intracorporate Controversies are to be filed in the
Regional Trial Court where principal office corporation is located. 86
2.Any agreement as to venue must be in writing and for exclusivity, the
intent must be clear, otherwise, it will be interpreted to allow for an
additional venue.
2.1
The freedom of the parties to stipulate on the venue is however
subject to the usual rules on contract interpretation. Where the provision
appears to be one-sided as to amount to a contract of adhesion, the
consent of the parties thereto may well be vitiated and the venue
stipulation will not be given effect.87
2.2Venue as stipulated in the promissory note shall govern
notwithstanding the absence of a stipulation as to venue in an
accompanying surety agreement as the latter can only be enforced in
conjunction with the former.88
HOW VENUE IS QUESTIONED
Venue may be questioned in (1) in a motion to dismiss 89, or (2) in an
answer by way of an affirmative defense90. If NOT SO MADE, it is
deemed waived.
RULE 5-UNIFORM PROCEDURE IN TRIAL COURTS
The procedure in Municipal Trial Court shall be the same as in the
Regional Trial Court, except when (1) a provision applies only, expressly
or impliedly, to a particular court, or (2) In civil cases covered by the
Rules on Summary Procedure
1.An example of a provision that applies only to a Municipal Trial Court
is that which refers to an appeal taken from an order of the lower court
dismissing the case without trial on the merits.91
PROCEDURE IN REGIONAL TRIAL COURTS
RULE 6- KINDS OF PLEADINGS

85 Article 360, Revised Penal Code
86 RA 8799, and A.M. 01-02-04-CS, March 13, 2001
87 Sweet Lines v Teves, 83 SCRA 361
88 Philippine Bank of Communications v Lim, 455 SCRA 714
89 Supra, Section 1 (c) ,Rule 16
22
PLEADING DEFINED is a written statement of the respective claims

and defenses of the parties submitted to the court for appropriate
judgment.92
1.The pleadings that are allowed are: (a) Claims of a party are asserted in
the complaint, counterclaim, cross-claim, 3rd party complaint (4th..), or
complaint in intervention (2) Defenses of a party are alleged in the
answer to the pleading asserting a claim against him (3) Reply to the
answer93
2.The specific KINDS OF PLEADINGS are: (a) COMPLAINT, which is
the pleading alleging the plaintiffs cause of action or causes of action.
The names/residences of the plaintiffs and defendants must be stated in
the complaint94 (b) ANSWER, which is a pleading in which a defending
party sets forth his defenses95. Its essential purpose is to secure joinder of
the issues and not to lay down evidentiary matter.96
2.1The following are the kinds of defenses97 that may be interposed in an
answer:
2.1.1NEGATIVE DEFENSE which is a specific denial of a material fact
or facts alleged in the pleading of a claimant essential to his cause/s of
action. A specific denial is made 98 by: (a) Specifically denying the
material averment in the pleading of the adverse party and setting forth
the substance of the matter upon which he relies for such denial (b)Deny
only a part of the averment by specifying that so much of it is true and
deny the remainder (c)
Allegation of lack of knowledge or
information sufficient to form a belief as to the truth of the material
averment in the pleading of the adverse party.
2.1.2
AFFIRMATIVE DEFENSE which is an allegation of new
matter, which although hypothetically admitting the material allegations
in the pleading would nevertheless bar or prevent recovery. They include
fraud, statute of limitations, release, payment, illegality, statute of frauds,
estoppel, former recovery, discharge in bankruptcy, or any other matter
by way of confession and avoidance.
Any of the grounds for a motion to dismiss may be pleaded as an
affirmative defense. He may then move for a preliminary hearing as if a
timely motion to dismiss has been filed.99
NOTE that the rule that a defending party who sets up an affirmative
defense HYPHOTHETICALLY ADMITS the allegations does not apply
if the defense set up is any of the grounds for extinguishment of the
obligation. The EFFECT is that the defending party is deemed to have
admitted the validity of the obligation, and if the motion to dismiss is
denied, what is left to be proven is the fact of payment or non-payment.
3.COUNTERCLAIM, which is any claim which a defending party may have against an opposing party.100
3.1KINDS OF COUNTERCLAIMS

96 Naga Development Corporation v Court of Appeals, 41 SCRA 105
23
COMPULSORY
(1) Arises out of or is connected
w/ the transaction or occurrence
constituting the subject matter of
the opposing partys claim
(2) barred if not set up in the
answer
(3) plaintiff need not answer
(4) if not answered no default
(5) does not require a certification
as to non-forum shopping
PERMISSIVE
1. does not arise out of or is not connected
with the transaction or occurrence constituting the subject matter of the opposing
partys claim
2. not barred even if not set up in the
answer
3. plaintiff must answer once docket fees are
paid
4. if not answered default lies
5. being an initiatory pleading it requires a
certification as to non-forum shopping
3.2
The REQUISITES OF A COMPULSORY COUNTER-CLAIM
are:(a) It arises out of or is necessarily connected w/the transaction or
occurrence that in the subject matter of the partys claim (b)It does not
require for adjudication the presence of 3 rd parties over whom the court
cannot acquire transaction (c) It must be cognizable by the regular courts
of justice (d) It must be within the jurisdiction of the court both as to
amount and the nature thereof, except that in an original action before the
RTC, counterclaim is considered compulsory regardless of amount (e) It
must already be existing at the time defending party files his answer
(Rule 6, Sec. 7, Rule 11, Sec. 8)
See Reyes De leon v Del Rosario, 435 SCRA 232, test to determine
whether counterclaim is compulsory or not.
3.2.1
A compulsory counterclaim that is not yet in existence at the
time of the filing of an answer may be presented or set-up by a
supplemental pleading before judgment.101
3.2.2A compulsory counterclaim may implead persons not parties to the
original complaint as their presence is required for granting complete
relief in the determination of a counter-claim or cross claim, the court
shall order them brought in as defendants, if jurisdiction over them can
be obtained.102 Summons must thus be served upon them as they must
answer the counterclaim as they cannot rely on the rule that the defendant
101 Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581
24
in the counterclaim is deemed to have adopted the allegations of the

complaint in his answer.103
3.3The REQUISITES OF A PERMISSIVE COUNTERCLAIM are: (a)
It does not require for adjudication the presence of 3 rd parties over
whom the court cannot acquire jurisdiction (b) It must be cognizable by
the regular courts of justice (c) It must be within the jurisdiction of the
court both as to amount and the nature thereof, except that in an original
action before the RTC, counterclaim is considered compulsory regardless
of amount
4. A CROSS-CLAIM is a claim by one party against a co-party arising
out of a transaction/occurrence that is the subject matter either of the
original action or the counter-claim.
It may include a claim that a party against whom it is asserted is or may
be liable to the cross claimant for all or part of a claim asserted in the
action against the cross-claimant. 104
NOTE that counterclaims may be asserted against an original counterclaimant and that cross-claims may also be filed against an original
cross-claimant.105
5.A REPLY is a pleading, the office or function of which is to deny or
allege facts in denial or avoidance of new matters alleged by way of
defense in the answer and thereby join or make an issue as to such
matters.
5.1
If a reply is not filed, all new matters are deemed controverted.
If plaintiff wishes to interpose any claims arising out of the new matters
so alleged, such claims shall be set forth in an amended/supplemental
complaint.
5.2
If the defense is based on an actionable document, it must be
replied to, otherwise it is admitted.
6. A 3RD PARTY COMPLAINT is a claim that a defending party may,
WITH LEAVE OF COURT, file against a person, NOT A PARTY, called
3RD party defendant. FOR CONTRIBUTION INDEMNITY,
SUBROGATION, OR ANY OTHER RELIEF in respect of his
opponents claim.106
6.1EXAMPLES:
CONTRIBUTION- A sues X for collection of money based on a
promissory note signed jointly and severally with Y. X may file a
complaint against Y for contribution
INDEMNITY S, as surety, is sued for recovery of the obligation of M.
S may file a complaint against M for whatever amount he may be
adjudged to pay as surety
SUBROGATION X, as lessor, sues Y, as lessee for repairs. Y may file a
complaint against his sub-lessee who filed to comply with the obligation
to repair
103 Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522
25
OTHER RELIEF X bought land from Y. Later X is sued by A for

recovery of the land. X may file a complaint against Y for his warranty
against eviction.
6.2
An ANSWER TO 3RD PARTY COMPLAINT may include
(a)DEFENSES COUNTERCLAIMS OR CROSS-CLAIMS including
such defenses that the 3RD PARTY PLAINTIFF may have against the
original plaintiffs claim, and (b) IN PR0PER CASES, he may assert a
counter-claim against the ORIGINAL PLAINTIFF in respect to his claim
against the 3rd party plaintiff.107
EXAMPLE: a REINSURER (3 rd party defendant) may set up in his
answer the defense alleged by defendant insurer that loss is caused by
plaintiff insured. However 3rd party defendant cannot file a counterclaim
against the original plaintiff as there is no privity of contract.
WHEN NEW PARTIES CAN BE BROUGHT
If the presence of others besides the parties is required for the granting of
full relief in the determination of a counter-claim or cross- claim the
court shall order them to be brought in as defendants, if jurisdiction over
them can be obtained108.
RULE 7 PARTS OF A PLEADING

The PARTS OF A PLEADING of a pleading are CAPTION, BODY,
SIGNATURE,
ADDRESS,
VERIFICATION,
AND
CERTIFICATION AGAINST FORUM SHOPPING.
1. CAPTION it sets forth the (a) NAME OF THE COURT (b) THE
TITLE OF THE ACTION- this includes an indication of the NAME of
the PARTIES, who are REQUIRED to be NAMED in the ORIGINAL
COMPLAINT OR PETITION. In subsequent pleadings, the name of the
first party on each side is sufficient with an appropriate indication when
there are other parties. NOTE: In an appeal, Sections 5 and 6, Rule 41
requires all names to be indicated in the NOTICE OF APPEAL and
RECORD ON APPEAL (c) DOCKET NUMBER , if one has already
been assigned.109
2.BODY - sets forth its designation, the allegations or a partys claims /
defenses, the relief prayed for, and the date of the pleading
2.1
The allegations in the body shall be divided unto paragraphs so
NUMBERED to be readily IDENTIFIED. Each shall contain
STATEMENT OF A SINGLE SET OF CIRCUMSTANCES so far as it
can be done with convenience. A paragraph may be referred to by its
number in all succeeding pleadings.
2.2
Headings must be used when 2 or more causes of action are
joined, the statement of the first shall be prefaced by : FIRST CAUSE
OF ACTION etc. WHEN: 2 or more paragraphs are addressed to one or
several causes of action in the complaint, they shall be prefaced by:
ANSWER TO THE FIRST CAUSE OF ACTION and so on. If it
addresses several causes of action, the paragraphs shall be prefaced
accordingly.

26
2.3
Relief should be specified but it may add a general prayer for
such further or other relief as may be deemed just and equitable.
2.4
Date every pleading is required to be dated.
3. SIGNATURE AND ADDRESS- every pleading must be signed by the

party OR counsel representing him, stating in either case his ADDRESS
which should not be a post office box.
3.1
NOTE the word OR because a party may litigate / defend PRO
SE or for himself without aid or counsel. This applies even if a party is
already represented by counsel.
3.2
AN ADDRESS IS REQUIRED for service of pleadings or
judgments
3.3
SIGNIFICANCE OF COUNSELS SIGNATURE it is a
CERTIFICATE BY HIM THAT: (a)
He has read the pleading
(b)To the best of his information, knowledge and belief there is good
ground to support it (c)
It is not interposed for delay
3.4
IF PLEADING IS UNSIGNED It produces NO LEGAL
EFFECT. However, the court in its discretion can allow the deficiency to
be remedied if: it SHALL APPEAR THAT THE SAME IS DUE TO
INADVERTENCE AND NOT INTENDED FOR DELAY
3.5
COUNSEL SUBJECT TO DISCIPLINARY ACTION IN
RELATION TO the Rule when (a) He deliberately files an unsigned
pleading (b)
Signs a pleading in violation of the Rule (c) Alleges
scandalous or indecent matter (d) Fails to promptly report to the court a
change in his address
4. VERIFICATION is an affidavit that the affiant has read the pleading
and that the allegations therein are TRUE and CORRECT of his
PERSONAL KNOWLEDGE AND/OR IS BASED ON AUTHENTIC
RECORDS.
4.1
IF A PLEADING REQUIRED TO BE VERIFIED CONTAINS
A VERIFICATION BASED ON INFORMATION AND BELIEF, OR
UPON KNOWLEDGE INFORMATION AND BELIEF, OR LACKS A
PROPER VERIFICATION, it shall be treated as an UNSIGNED
PLEADING.
4.2
A pleading need not be verified, except when otherwise
specifically required by LAW OR RULES110.
4.3A VERIFICATION IS REQUIRED under rules governing (a) cases
covered by the Rules on Summary Procedure (b) Petition for relief from
judgment / order111 (c) Petition for review 112 (d) Appeal by certiorari113
(e)Petition for annulment of judgment 114 (f) Injunction115 (g)

27
Receivership116 (h) Support117 (i) 69) Certiorari, Prohibition or

Mandamus118 (j) Quo Warranto119 (k) Expropriation120 (l) Forcible Entry /
Detainer121 (m) Indirect Contempt 122
4.4An improper verification is cured by amending the pleading with the
CORRECT VERIFICATION
5. CERTIFICATION AGAINST FORUM SHOPPING is executed by the
plaintiff or principal party who shall certify under OATH in the
COMPLAINT or INITIATORY PLEADING ASSERTING A CLAIM
OR RELIEF OR IN A SWORN CERTIFICATION ANNEXED
THERETO AND SIMULTANEOUSLY FILE THEREWITH: (1)
That he has not therefore commenced any action or filed any claim
involving the same issues in any COURT, TRIBUNAL OR QUASIJUDICIAL AGENCY, AND to the best of his knowledge, no such other
claim or action is pending therein (2) If there is such other pending action
or claim, a complete statement of the present status thereof (3) That if he
should thereafter learn that the same or similar action has been filed or is
pending, he shall report that fact within 5 days therefrom to the court
wherein his complaint / initiatory pleading has been filed.123
5.1The lack of a certification is not curable by amendment, but such shall
be cause for dismissal of the complaint. The dismissal shall be without
PREJUDICE unless otherwise provided, upon motion and after
hearing.124
5.2The NON-COMPLIANCE WITH ANY OF THE UNDERTAKINGS
OR SUBMISSION OF A FALSE CERTIFICATE shall constitute indirect
contempt without prejudice to corresponding administrative and criminal
actions. PROVIDED, that if the acts of the party or counsel clearly
constitute WILLFUL and DELIBERATE forum shopping, it shall then be
ground for SUMMARY DISMISSAL WITH PREJUDICE, and shall
constitute DIRECT CONTEMPT as well as cause for administrative
sanctions.
5.3
Forum Shopping exists when as a result of an adverse opinion in
one forum, a party seeks a favorable opinion, other than by appeal or
certiorari, in another, or when he institutes two or more actions or
proceedings grounded on the same cause, on the gamble that one or the
other court would make a favorable disposition. The most important
factor in determining the existence of forum shopping is the vaxation
caused the courts and parties-litigants by a party who asks different
courts to rule on the same or substantially the same reliefs.125
5.3.1It also occurs when a party attempts to have his action tried in a
particular court or jurisdiction where he feels he will receive the most
favorable judgment.

118 Supra, Sections 1,2,3, Rule 65

124 Castillo v Court of Appeals, 426 SCRA 369
125 Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
28
5.3.2
It has been said to exist also where the elements of litis
pendentia are present or where a final judgment in one case will amount
to res judicata in another. Hence, the following requisites concur: (a)
identity of parties, or at least such parties represent the same interests in
both actions (b) identity of rights asserted and relief prayed for, the
relief being founded on the same facts, and (c) identity of the two
preceding particulars is such that any judgment rendered in the other
action will, regardless, of which party is successful, amount to res
judicata in the action under consideration. 126
5.4The purpose of the certification against forum shopping is to prohibit
and penalize the evils of forum shopping.127 Forum Shopping is a
deplorable practice because it results in unnecessarily clogging of the
already heavily burdened docket of the courts.128
5.5The execution of the certification is required to be accomplished by
the petitioner himself as it is the petitioner himself who has actual
knowledge of whether or not he has initiated similar actions or
proceedings in different courts or agencies.
5.5.1
If there are several plaintiffs, the general rule is that all of them
must sign BUT IT MUST BE NOTED that there is jurisprudence to the
effect that: (1) the execution by one of the petitioners or plaintiffs in a
case constitutes substantial compliance where all the petitioners, being
relatives and co-owners of the properties in dispute, share a common
interest in the subject matter of the case. 129 (2) the case is filed as a
collective raising only one cause of action or defense 130 (3) the signing by
1 spouse substantially complies as they have a common interest in the
property131 or is signed by husband alone is substantial compliance as
subject of case is recovery of conjugal property 132 (4) 2 of the parties did
not sign as they were abroad. It was considered reasonable cause to
exempt them from compliance with the requirement that they personally
execute the certificate133
5.5.2If the plaintiff or petitioner is a juridical person, the Board may pass
a specific resolution allowing a representative to sign.
5.5.3
Counsel has been allowed to sign the certification in the
following instances: (a) Where the counsel is the Solicitor General has
been deemed to be substantial compliance 134 (b)Certification by acting
regional counsel of NPC was accepted because it was his basic function
to prepare pleadings and to represent NPC Mindanao as such he was
in the best position to know and certify if a similar action was pleading or
had been filed135 (c) Certification was signed by counsel. The procedural
lapse may be overlooked in the interest of substantial justice. 136 (d)
Certification was executed by an in house counsel is sufficient
compliance with the Rules137
126 TADI v Solilapsi, 394 SCRA 269

127 BA Savings Bank v Sia, 336 SCRA 484
128 Ruiz v Drilon, 209 SCRA 695
129 Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722
130 HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners Association, 411 SCRA
504
131 Dar v Alonso Legasto, 339 SCRA 306
132 Docena v Lapesura, 355 SCRA 658
133 Hamilton v Levy, 344 SCRA 821
134 Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87
135 Robern Development Corporation v Quitain, 315 SCRA 150
136 Sy Chin v Court of Appeals, 345 SCRA 673
137 Mercury Drug Corporation v Libunao, 434 SCRA 404
29
SEE: Ateneo de Naga vs. Bernal, GR 160455, May 9, 2005

The rule in Section 1, Rule 17 is that the plaintiff may dismiss his
complaint by filing a notice of dismissal at any time before service of the
answer or of a motion for summary judgment. As a general rule, such
dismissal is without prejudice. Suppose P filed a complaint against D,
and before service of the answer or of motion for summary judgment, P
caused the dismissal of his complaint by filing a notice of dismissal.
Months later, P filed the same complaint against D. In the certification on
non-forum shopping appended to the second complaint, P failed to
mention about the prior filing and dismissal of the first case. Is Ps failure
to mention about the prior filing and dismissal of the first case fatal?
No. An omission in the certification on non-forum shopping about any
event or case which would not constitute res judicata or litis pendentia is
not fatal. In the problem presented, the dismissal of the first case would
not constitute res judicata precisely because such dismissal is without
prejudice to the refilling of the case. (Roxas v. CA, G.R. No. 139337,
Aug. 15, 2001.)
To be included as 4th paragraph of the answer in Q&A No. 13; p. 62:
Also, a case pending before the Ombudsman cannot be considered for
purposes of determining forum shopping as the power of the
Ombudsman is only investigative in character and its resolution cannot
constitute a valid and final judgment because its duty is to file the
appropriate case before the Sandiganbayan. (Sevilla v. Laggui, A.M. No.
RTJ-01-1612, Aug. 14, 2001.)
CAN THE CERTIFICATION BE FILED LATERGeneral Rule NO Note Uy v. Land Bank GR 136100 July 24, 2000REINSTATEMENT OF THE CASE AFTER MOTION TO ADMIT
CERTIFICATION
BUT: Loyola v. CA 245 S 477 one day after, Roadway Express v. CA
264 S 696 14 days before the CA dismissed Petition for Review.
Shipside v. Ca GR 143377, Feb 20, 2001 motion for reconsideration
showing authority of petitioner to execute certification prior to filing.
REASON special or compelling reasons justified relaxation of the Rule
IN Shipside merits of case justified deviation.
DISTINGUISH BETWEEN VERIFICATION / CERTIFICATION

Verification
-allegations are true and correct
based on personal knowledge /
authentic records
-required in complaints, initiatory
30
pleadings and in some responsive

pleadings.
-may be cured by amendment or
order to verify
-may not result in dismissal
-may be signed by counsel
Certification
-no action/claim involving the same
no action/claim involving the same
- required only in complaints/initiatory
pleadings.
- cannot be cured by amendment
- results in dismissal
- by the party himself
RULE 8
PLEADINGS
MANNER
OF MAKING
ALLEGATIONS
IN
HOW ALLEGATIONS ARE MADE IN A PLEADING

In general, a pleading must contain in a METHODICAL and LOGICAL
form a PLAIN, CONCISE, and DIRECT statement of the ULTIMATE
FACTS on which the party pleading relies for his claim or defense138
1.ULTIMATE FACTS are the 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. Examples: (a)
That an obligation has been constituted, that party must comply, that
there is no compliance (b)That party is the owner of property, that he has
a right to its use/possession, that he has been dispossessed
2. Mere EVIDENTIARY FACTS or those that are necessary for the
determination of the ultimate facts are to be omitted. Evidentiary facts
are the premises upon which conclusions of ultimate facts are based.
Examples: (a)That obligation as covered by promissory note was
executed before specified persons, that defendant has several letters
indicating intention to/or not to pay (b) How property was acquired
3. LAWS may be pleaded only if the pleading is an Answer.
PLEADING ALTERNATIVE CAUSES OF ACTION OR DEFENSES
1. A party may set forth two or more statements of a claim or a defense
alternatively or hypothetically, either in one cause of action or defense or
in separate causes of actions or defenses. If two or more statements are
made in the alternative and if one of them if made independently would
be sufficient, the pleading is not made insufficient by the insufficiency of
one or more of the alternative statements. 139Example: (a) allegations for
breach of contract of carriage and tort (b) allegations for breach of
contract and fraud (c) defense of failure to repurchase by plaintiff and
that property was inherited are inconsistent defenses.

31
2.Overruling of one does not bar other defense. However, if not set up,
determination of one shall bar the determination of the other.
3. The OBJECT OF PROVISION is to relieve a party from making a
definite election in cases where his claim or defense might fall within
two different substantive classes. SO, a party may state as many
claims/defenses as he has regardless of inconsistency.
HOW TO PLEAD CONDITIONS PRECEDENT
A general averment of the performance or occurrence of all conditions
precedent is sufficient.140 (a) that earnest efforts at a compromise have
been exerted, the suit being one between members of the same family (b)
that prior resort to conciliation has been undertaken to no avail
PLEADING CAPACITY TO SUE AND TO BE SUED
The following must be averred: (1) capacity to sue or be sued (2)
authority of a party to sue or be sued in a representative capacity (3) legal
existence of an organized association of persons that is made a party.141
1.Note the cross reference to Sections 1 and 3, Rule 3 referring to who
may be parties and representative parties, and to Section 1(d), Rule 16
referring to a motion to dismiss on the ground of lack of legal capacity to
sue, meaning that a party is not in possession of his civil rights, does not
have the qualification to appear, or does not have the character or
representation claimed.
2. A party desiring to raise the issue of lack of legal capacity shall do so
by specific denial, which shall include such supporting particulars as
peculiarly within the pleaders knowledge.
HOW TO AVER FRAUD, MISTAKE, CONDITION OF MIND
Fraud and mistake must be stated with particularity. Condition of mind,
such as malice, intent, knowledge may be averred generally.142
HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A
DOMESTIC/FOREIGN
COURT,
JUDICIAL/QUASI-JUDICIAL
OFFICER TRIBUNAL BOARD
It is sufficient that a general allegation of the existence of the judgment is
made, without setting forth matter showing jurisdiction to render it. 143
Jurisdiction in this case is presumed.
IF ACTION/DEFENSE
DOCUMENT
IS
BASED
ON
AN
ACTIONABLE
1.Where the action or defense is based on a written document ( an

actionable document) it is pleaded by (a) setting forth the substance of
such document in the pleading and attaching the original/copy as an
annex OR (b) setting it forth verbatim in the pleading.144
2.AN ACTIONABLE DOCUMENT IS CONTESTED by specifically
denying it under oath and setting forth what he claims to be the fact.

32
2.1
The requirement DOES NOT APPLY IF: (a) adverse party is
not/does not appear to be a party to the actionable document. Example:
Heirs are sued on a document executed by a person they will inherit from
(b) when compliance with an order for an inspection of the original
document is refused.145 (c) when the document is not an actionable
document but is merely evidence of the claim or existence of the
actionable document . Example: demand letters (d) when the party who
has the benefit of an implied admission waives the benefit Example: he
presents evidence as to genuineness and due execution
3.The EFFECT of not SPECIFICALLY DENYING AN ACTIONABLE
DOCUMENT UNDER OATH is that the genuineness and due execution
is admitted. MEANING, that it was executed by him/by someone
authorized by him, it was in the words/figures set forth in the pleading,
and that the formal requirements of law have been observed. THUS,
there is no need to present it formally in evidence because it is an
admitted fact.
3.1
A PARTY THOUGH IS NOT BARRED FROM
INTERPOSING OTHER DEFENSES as long as it is not inconsistent
with the implied admission. Example: (a) the defense of forgery would
be inconsistent, ON THE OTHER HAND (b) Fraud/Payment are not
inconsistent and may be allowed.
HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED

It is sufficient to aver that document was issued or act done in
compliance with law.146 Example: issuance of certification to file action
by Lupon Tagapayapa chair.
HOW ARE SPECIFIC DENIALS MADE
A specific denial is made147 by: (a) Specifically denying the material
averment in the pleading of the adverse party and setting forth the
substance of the matter upon which he relies for such denial (b)Deny
only a part of the averment by specifying that so much of it is true and
deny the remainder (c)
Allegation of lack of knowledge or
information sufficient to form a belief as to the truth of the material
averment in the pleading of the adverse party.
1. If allegations are not denied in the prescribed manner, a party is
deemed to have made a GENERAL DENIAL which is TANTAMOUNT
TO AN ADMISSION.148(Section 11)
1.1An exception to the rule
UNLIQUIDATED DAMAGES
are
allegations that
pertain
to
1.2
Note that when the allegations pertain to (a) allegations of usury
in a complaint to recover usurious interest,OR (b) genuineness and due
execution of an actionable document are required to be made UNDER
OATH OTHERWISE THEY ARE ADMITTED.

33
STRIKING OUT OF A PLEADING OR MATTER CONTAINED

THEREIN
If the pleading or any matter therein is SHAM, FALSE, REDUNDANT,
IMMATERIAL, IMPERTINENT OR SCANDALOUS, the court can
order the pleading or matter contained therein to be stricken therefrom (a)
upon motion made by a party before responding to a pleading (b) if no
responsive pleading is allowed / permitted by the Rules, upon motion by
a party within 20 days after service of the pleading, OR (c) upon the
Courts own initiative149
RULE 9 EFFECTS OF FAILURE TO PLEAD

The general effect of the failure to plead is that the defenses / objections
not so pleaded in an Answer or a Motion to Dismiss are deemed waived.
HOWEVER, if it appears from the pleadings or evidence on record that
(a) the Court has no jurisdiction over the subject matter (b) there is
another action pending between the same parties for the same cause, or
(c) the action is barred by prior judgment or statute of limitations, the
court shall DISMISS the claim.150 These defenses are not barred if not set
up (Section 1)
1.A compulsory counterclaim or a cross-claim not set up shall also be
barred.151 Note that this is in consonance with the requirement of the
Rules that a a compulsory counterclaim or cross claim existing at the
time of the filing of the answer must be contained therein 152 BUT if it
arises after the filing of an answer, it may be set up in a supplemental
pleading before judgment153 OR if failure is due to oversight,
inadvertence, excusable neglect or when justice requires, it may be set up
by amendment with leave of court before judgment.154
WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO
ANSWER WITHIN THE TIME ALLOWED
If there is failure to plead within the time allowed, the defendant may be
declared in default upon compliance with the following: (a) the plaintiff
must file a motion to declare the defendant in default (b) serve notice of
his motion to defendant, which must include a notice of hearing (c) at the
hearing, show proof of failure on the part of the defendant to file his
answer within the reglamentary period. 155 Note that a court cannot motu
propio declare a defendant in default.
ONCE DECLARED IN DEFAULT
The court can proceed to render judgment granting the claimant such
relief as his pleading may warrant, UNLESS, the Court in its discretion
requires the claimant to submit the evidence. Such reception may be
delegated to the Clerk of Court, who must be a member of the BAR

34
1.In addition, the defaulted defendant is entitled to NOTICE OF

SUBSEQUENT PROCEEDINGS but HE CANNOT TAKE PART IN
THE TRIAL.156
2.EFFECT OF A PARTIAL DEFAULT, where a pleading asserting a
claim states a common cause of action against several defending parties,
some of whom answer while others do not , THE COURT SHALL TRY
THE CASE AGAINST ALL UPON THE ANSWERS THUS FILED
AND RENDER JUDGMENT UPON THE EVIDENCE PRESENTED.157
3.THE EXTENT OF RELIEF THAT MAY BE AWARDED shall not
exceed the amount or be different in kind from that prayed for nor award
unliquidated damages.158
WHAT ARE THE REMEDIES OF A DEFAULTED DEFENDANT
The available remedies of a defendant who is declared in default are as
follows:
1.MOTION TO SET ASIDE ORDER OF DEFAULT- under oath, filed at
any time after notice of declaration in default and before judgment.
Defendant must show by an AFFIDAVIT OF MERIT that failure to file
an answer was due to FAME and that he has a meritorious defense
2.
MOTION FOR NEW TRIAL on the ground of FAME if the trial
court has rendered judgment but it has not yet become final
3.
APPEAL the judgment by default (not the order as it is
interlocutory, and cannot be appealed) within 15 days from notice of
judgment. Note: that if in the meantime, a motion to set aside order of
defendant has been denied, it can be assigned as an error in the appeal.
THE NON FILING THOUGH DOES NOT BAR APPEAL
4.
PETITION FOR RELIEF FROM JUDGMENT based on
FAME provided no appeal has been taken within 60 days from notice
and 6 months from entry of judgment.159
5. ACTION TO ANNUL JUDGMENT based on EXTRINSIC /
COLLATERAL FRAUD within 4 years from discovery of the fraud
(ONE THAT INDUCES ONE NOT TO PRESENT HIS
CASE/PREVENTS FULL AND FAIR HEARING)
6.
CERTIORARI if improperly declared in default OR motion to
set aside was denied and is tainted with grave abuse of discretion. Filed
within 60 days from notice or judgment order resolution or 60 days from
denial (notice) of motion for reconsideration.160
CASES WHERE NO DEFAULT LIES
In the following cases, default does not lie: (a) annulment of marriage
(b)declaration of nullity of marriage (c) legal separation (d)
expropriation, and (e) forcible entry, illegal detainer and the other actions
covered by the Rules on Summary Procedure. In the first three cases, the
court shall order the prosecuting attorney to investigate whether or not
156 Supra, Section 3 (a), Rule 9

157 Supra, Section 3 (c), Rule 9
158 Supra, Section 3 (d), Rule 9
159 Supra, Rule 38
160 Supra, Rule 65
35
collusion exists, and if there is no collusion, to intervene for the state in

order to see that the evidence so presented is not fabricated.161
RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

WHAT ARE AMENDMENTS
Amendments consist of: (1)Adding or striking out an allegation or the
name of any party (2) Corrections of mistakes in the name of a party or
mistaken or inadequate allegation or description in any other respect.
PURPOSE FOR ALLOWING AMENDMENTS
Actual merits of the controversy may speedily be determined without
regard to technicalities and in the most expeditious and inexpensive
manner. 162
KINDS OF AMENDMENTS
The kinds of amendments are:
1.Formal Amendments which are defects in the designation of the parties,
other clerical or typographical errors that may summarily be corrected
provided no prejudice is caused the adverse party and are allowed at any
stage, at the Courts own initiative or on motion.163
2.ALL OTHER AMENDMENTS ARE considered as SUBSTANTIAL.
WHEN AMENDMENTS CAN BE MADE
1. Formal and Substantial amendments can be made once as a matter of
right before a responsive pleading is served, or in case of a Reply, at any
time within 10 days after it is served.164
1.1Note that the FILING OF MOTION TO DISMISS does not bar an
amendment as it is not a responsive pleading, but can no longer be made
if the order dismissing the complaint has become final.
1.2
Prior to the filing of an answer, the plaintiff has the absolute
right to amend the complaint whether a new cause of action or change in
theory is introduced.165
2.After the filing of a responsive pleading, Substantial amendments
require leave of court, but leave may be refused if it appears to the court
that the motion was on made with INTENT TO DELAY. Orders related
to leave shall be made upon motion filed in court, with notice to the
adverse party and opportunity to be heard.166
2.1That the amendments should not substantially alter the cause of action
or defense is NO LONGER THE RULE as the Rules now allow the
161 Supra, Section 3,(e), Rule 9

165 Remington Industrial Sales Corporation v Court of Appeals, 382 SCRA 499
36
pleading of alternative causes of action/defenses 167 and that all such

causes or defenses must be pleaded in accordance with the rule on
waiver.168
2.2The Trial Court may refuse leave or amendments when: (a) a
responsive pleading has been filed and the motion for leave to amend is
made with intent to delay (b) purpose is to confer jurisdiction as the court
must first acquire jurisdiction before it can act 169 (c) purpose is to cure the
defect of a non-existent cause of action. Example: An amendment of the
complaint to correct its having been filed prematurely or when the
obligation was not yet due.
2.3IF NO LEAVE IS OBTAINED, the pleading it has no standing and
may be stricken from records
2.4
PROBLEM: Complaint is filed against several defendants.
Some defendants answer, the others have not yet filed their answers.
Amendments will be allowed as a matter of right against those who have
not filed answers, and with leave of court, as against those who have
filed their answers.170
3.Substantial amendments can also be made when it is necessary to
conform to the evidence. This occurs when issues are tried with the
express or implied consent of parties. If such, they are treated in all
respects as if they have been raised in the pleadings 171, thus paving the
way for an amendment of the pleadings to conform to the evidence. This
is made upon motion of any party, even after judgment THOUGH
FAILURE TO AMEND DOES NOT AFFECT THE RESULT OF THE
TRIAL. Example: Increased claim for the payment of damages OR made
to authorize presentation of evidence. This occurs when evidence is
objected to at the trial on the ground that it is not within the issues made
by the pleadings, the court may allow the pleadings amended and shall
do so with liberality to authorize presentation of evidence.172
3.1THUS, the failure of a complaint to state a cause of action may be
cured by (1) Presentation of evidence to prove that cause of action
followed by an amendment to conform to evidence, OR (2) Evidence is
objected to and the trial court sustains the objection, this is then followed
by an amendment with leave of court to authorize presentation of
evidence. Same remedies may be resorted to WHEN A PARTY FAILS
TO RAISE A DEFENSE IN HIS PLEADING.
THE EFFECTS OF AN AMENDED PLEADING
1.
It supersedes the pleading that it amends
2.
Admissions in the superseded pleading may be received in
evidence against the pleader because it is not expunged from the records
and admissions in the superseded pleading are in the nature of judicial
admissions made by a party in the course of the proceedings which do
not require proof and ordinarily cannot be contradicted except by
showing that it was made through palpable mistake or that no such
admission was made.173

169 Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
170 Siasoco v Court of Appeals, 303 SCRA 186
171 Bernardo v Court of Appeals, 263 SCRA 660
37
3. Claims or defenses alleged in the superseded pleading but not

incorporated in the amended pleading shall be deemed waived.174
HOW IS AN AMENDED PLEADING FILED
A new copy of the entire pleading incorporating the amendments which
shall be indicated by appropriate marks shall be filed.175
1.NOTE that the date of filing of amended pleadings does not retroact to
the date of the filing of the original pleading. Hence, the statute of
limitations runs until the filing of the amendment, but, an amendment
that merely supplements and amplifies facts originally alleged in the
complaint relates back to the date of the commencement of the action and
is not barred by the statute of limitations that expired after service of the
original complaint. Example: The statement of a cause of action is
imperfect and is corrected by an amended complaint, the plea of
prescription relates to the time of filing BUT the rule will not apply if a
new defendant is impleaded in the amended complaint and prior to its
filing prescription has set in.
WHAT IS A SUPPLEMENTAL PLEADING
A supplemental pleading setting forth transactions, occurrences or events
which have happened since the date of the pleading sought to be
supplemented Example: Setting up counterclaims after an answer has
been filed.176
1.A supplemental pleading is always upon motion, and on such terms as
are just and upon reasonable notice and the ADVERSE PARTY IS
GIVEN 10 DAYS FROM NOTICE OF ORDER ADMITTING THE
SUPPLEMENTAL PLEADING TO PLEAD THERETO.177
2.A supplemental pleading is meant to supply deficiencies in aid of an
original pleading, not to entirely substitute the latter.178 Thus, when the
cause of action stated in the supplemental complaint is different from the
cause of action mentioned in the original complaint, the court should not
admit the supplemental complaint.179
DISTINCTIONS BETWEEN AN
SUPPLEMENTAL PLEADING
AMENDED PLEADING AND A
(1) An amended pleading is filed either as a matter of right or with leave,

a supplemental pleading is always with leave (2) An amended pleading
alleges matters occurring before the filing of the original pleading, while
a supplemental pleading alleges matters occurring after the filing of the
original pleading (3) An amended pleading supersedes the original
pleading, while a supplemental pleading allows the original pleading to
stand.
RULE 11: WHEN RESPONSIVE PLEADINGS ARE TO BE FILED
ANSWER TO THE COMPLAINT

176 Supra, Section 9, Rule 11 and Section 2, Rule 9
178 Shoemart, Incorporated v Court of Appeals, 190 SCRA 189
179 APT v Court of Appeals, 324 SCRA 533
38
1.Within 15 days after service of summons unless a different period is

fixed by the Court.180 The same period applies to third party
complaints.181
2.If covered by the Rules on Summary Procedure, it is 10 days
3. If the complaint is amended: (a) as a matter of right, within 15 days
from being served with a copy (b) if with leave of court, within 10 days
from notice of order admitting the same. If no new answer is filed, a
previously filed answer may serve as the answer.HOLDS ALSO FOR
ANSWERS TO AMENDED COUNTER-CLAIMS, CROSS CLAIMS,
THIRD PARTY (ETC) CLAIM OR COMPLAINTS IN
INTERVENTION.182
4.If defendant is a foreign private juridical entity, within 15 days if
service of summons is made on the resident agent, within 30 days from
receipt of summons by the entity at its home office if received by the
government office designated by law.183
5.If it is a complaint in- intervention, within 15 days from notice of the
order admitting the complaint in intervention
6. If it is a supplemental complaint, within 10 days from notice of the
order admitting the supplemental complaint. The answer to the complaint
shall serve as the answer to the supplemental complaint if no new or
supplemental answer is filed.184
7.If it involves a complaint served on a non-resident defendant who is not
in the Philippines through any of the modes of extra-territorial service,
including by publication, within a reasonable time which shall not be less
than 60 days after notice as the court may specify in its order granting
leave to effect extra-territorial service of summons
ANSWER TO A CROSS CLAIM OR COUNTER CLAIM
The answer to a cross claim or a counter-claim shall be filed within 10
days from service.185 NOTE that compulsory counterclaims need not be
answered unless it raises issues not covered by the complaint .
NOTE that it is required that a compulsory counterclaim or a cross claim
existing at the filing of defendants answer must be included therein
BUT, if it matures / or is acquired after serving of answer, it may with the
courts permission be presented as such in a supplemental pleading. If
already existing and not set up through oversight, inadvertence, or
excusable neglect, it may, by leave of court be set up as such by
amendment before judgment.186
REPLY

183 Supra, Section 2, Rule 11, Section 128, Corporation Code
186 Supra, Sections 8,9, and 10, Rule 11
39
It must be filed within 10 days from service of the pleading responded

to.187 Altough the filing of a reply is optional as if one is not filed, all new
matters are deemed controverted.188
MAY THE TIME TO PLEAD BE EXTENDED
Upon motion and on terms as may be just, the Court it may extend or
allow it to be filed after the time fixed by the Rules. 189 The court may
also, upon like terms, allow an answer or other pleading t be filed after
the time fixed by these Rules.
1.NOTE that in cases covered by the Rules on Summary Procedure, the
period cannot be extended nor shortened.
2. In quo warranto cases, the period may be shortened.190
3.A lawyer shall not, after obtaining extensions of time to file pleadings,
memoranda, or briefs, let the period lapse without submitting the same or
offering an explanation for failure to do so.191
WHEN A COMPLAINT SHOULD BE FILED
A complaint is not a responsive pleading. It is to be filed upon accrual of
the cause of action or any time thereafter but before it is barred by
prescription.
RULE 12 BILL OF PARTICULARS
WHAT IS A BILL OF PARTICULARS
It is a definitive statement of any matter which is not covered with
sufficient definiteness or particularity to enable him to properly prepare
his responsive pleading.192
1.The PURPOSE of which is to make more particular or definite the
ultimate facts in a pleading but is NOT INTENDED TO SUPPLY
EVIDENTIARY MATTERS
2. It is to be resorted to when the complaint is deficient in details with
respect to the factual basis of each and every item claimed, but such
deficiency is not such as to amount to a failure to state a cause of action
as the remedy then is to file a motion to dismiss.193
WHEN SHOULD IT BE FILED
Before filing or responding to a pleading or before filing an answer. If
pleading is a reply, within 10 days from service thereof
WHEN WILL OR WHEN CAN COURT ACT UPON IT
Upon filing of the motion that points out the defects complained of, the
paragraphs wherein they are contained, and the details desired (it is a
litigated motion, thus requires a notice of hearing) the CLERK OF
COURT must IMMEDIATELY BRING IT TO THE ATTENTION OF

191 Rabanal v Tugade, 383 SCRA 484
193 Sabangan v Manila Railroad Company, 28 SCRA 772
40
THE COURT, who may deny or grant the motion OUTRIGHT or allow
the parties an opportunity to be heard.194
1.IF GRANTED, whether in WHOLE or in PART, the compliance
therewith must be effected within 10 days from notice of order, unless a
different period is fixed by the Court.
2. The BILL OF PARTICULARS may be filed either in a separate or in
an amended pleading, serving a copy on the adverse party. 195 ONCE
filed, it becomes part of the pleading for which it is intended.196
EFFECT OF NON-COMPLIANCE WITH ORDER
In case of failure to obey or insufficient compliance, the Court may order
the pleading or portions thereof to which the order was directed to be
stricken out OR make such order as it deems just. 197 HENCE, it may also
dismiss for failure of the plaintiff to obey order of the Court. 198 The
striking out of a complaint by the lower court upon motion of the
defendant for failure of the plaintiff to comply with an order requiring
him to submit a bill of particulars as a ground for dismissal is equivalent
to an adjudication on the merits unless otherwise provided by the court.199
WHEN MUST A RESPONSE / ANSWER BE FILED

After service of a bill / definitive pleading OR notice of denial of the
motion for a bill of particulars, the moving party has the remaining
period that he was entitled to at the time of the filing of the motion,
which shall not be less then 5 days in any event.200
RULE 13 FILING / SERVICE OF PLEADINGS JUDGMENTS /
OTHER PAPERS
The Rule applies to all pleadings / papers as well as service thereof,
except those for which a different mode of service is prescribed.201
FILING / SERVICE DEFINED
FILING is the act of presenting the pleading or other paper to the clerk of
court, while SERVICE is the act of providing a party with a copy of the
pleading / paper
IF A PARTY IS REPRESENTED BY COUNSEL service is made upon
counsel or one of them UNLESS service is ordered to be made upon the
party by the Court.
If there is one counsel for several parties, he is entitled to only one copy
served by the opposite side. 202
MODES OF FILING

199 Vda. De Quillosa v Salazar, 14 SCRA 656
41
The modes of filing are (1) Presenting the original copies of pleadings,
appearances, motions, notices, orders, judgments and all other papers to
the clerk of court, OR (2) By registered mail.203
1.The clerk of court shall if filing be PERSONAL, endorse on the
pleading, the date and the hour of filing. If it BY MAIL, the date
appearing on the post office stamp / registry receipt shall be date of the
filing / deposit of court. The envelope shall be attached to the record. It
bears stressing that it is the date of mailing, not the date of receipt of the
mail matter, which shall be considered as the date of filing. 204 This has
been the practice since mail is considered an agent of the
Government.205This is also known as the MAILBOX RULE.
2.The PAPERS that are to served or ARE TO BE FILED / SERVED are
JUDGMENTS,
RESOLUTIONS,
ORDERS,
PLEADINGS
SUBSEQUENT TO THE COMPLAINT, WRITTEN MOTIONS,
NOTICE, APPEARANCES, REMAND, OFFER OF JUDGMENT OR
SIMILAR PAPERS SHALL BE FILED AND SERVED UPON
AFFECTED PARTIES206
WHAT ARE THE MODES OF SERVICE
The general rule is that PLEADINGS, MOTION, NOTICES, ORDERS,
JUDGMENTS AND OTHER PAPERS shall be served PERSONALLY
or by MAIL.207
1.IF PERSONALLY served, it may done: (a) by delivering personally a
copy to party or his counsel, OR (b) leaving it in his office with a clerk or
person having charge thereof, OR (3) IF NO PERSON IS FOUND IN
THE OFFICE OR HE HAS NO OFFICE, by leaving a copy between the
hours of 8am to 6pm at partys / counsels residence, if known, with a
person of sufficient age and discretion residing therein.208
2.IF BY MAIL, by depositing a copy in the post office in a sealed
envelope, plainly addressed to the party or counsel, if known, at his
address / office, OTHERWISE, at his residence, if known, postage
prepaid and with instructions to the postmaster to return the mail to
sender after 10 days if UNDELIVERED. If no registry service is
available in the locality of the addressee or sender, service may be by
ordinary mail.209
2.1If mailed by PRIVATE CARRIER, the date of actual receipt by the
court of such pleading and not date of delivery to the carrier is deemed
the date of filing of that pleading.210
3.NOTE THOUGH THAT JUDGMENTS, FINAL ORDERS OR
RESOLUTIONS shall be served personally or by registered mail.
3.1
ALSO, if a party is summoned by publication, and he has failed
to appear, judgments, final orders / resolutions shall also be served upon
him by publication at the expense of the prevailing party.211

204 Ansel v Aledo, 420 SCRA 645
205 Supra, Mintu v Court of Appeals, 53 SCRA 114
210 Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55
42
4.IF SERVICE CANNOT BE MADE personally or by mail,

SUBSTITUTED SERVICE MAY BE AVAILED OF as long as the office
and place of residence of the party or his counsel is also unknown,
service may be made by delivering a copy to the clerk of court, with
proof of failure of both personal service and service by mail. The service
is complete at the time of such delivery.212
WHEN SERVICE IS COMPLETE
Service will be deemed complete: (a) Upon actual delivery if undertaken
personally (b) Upon expiration of 10 days after mailing, unless the Court
orders otherwise if undertaken by ordinary mail (c) Upon actual receipt
by addressee or after 5 days from the date he received the 1 st notice of the
postmaster, whichever date is EARLIER, if undertaken by registered
mail213 (d) At the time of delivery to the clerk of court, if undertaken by
substituted service
WHAT IS THE RULE ON PRIORITY OF SERVICE
Whenever practicable, service and filing of pleadings and other papers
shall be done personally EXCEPT, with papers emanating from the court.
A resort to other modes must be accompanied by an explanation why
service or filing was not done personally. IF NOT, it may be cause to
consider the paper as not filed. 214
1.Where the address of the respondents counsel is 83 kilometers away
from the address of petitioners counsel, such distance makes personal
service impracticable, and a written explanation why service was not
done personally might have been superfluous. Liberal construction has
been allowed in cases where the injustice to the adverse party is not
commensurate with the degree of thoughtlessness in not complying with
the procedure prescribed.215
WHAT CONSTITUTES PROOF OF FILING

Proof of filing is shown by: (a) existence of the pleading or other paper in
the records of the case (b) If not in the record, but is claimed to be: (1)
FILED PERSONALLY by the written / stamped acknowledgment of its
filing by the Clerk of Court on a copy, and (2) FILED BY REGISTERED
MAIL by the registry receipt and the affidavit of the person who did the
mailing containing a FULL STATEMENT OF: (a) Date and place of
depositing in the post office in a sealed envelope addressed to the Court,
with postage prepaid, and (b) Instructions are given to the postmaster to
return the mail to sender after 10 days, if undelivered.216
WHAT CONSTITUTES PROOF OF SERVICE
Proof of service is shown by: (a) Written admission of the party served
OR official return of the server, or affidavit of the party serving,
containing a full statement of the DATE, PLACE, MANNER OR
SERVICE if served personally (b) An affidavit of the person mailing of
facts showing compliance with Section 7 of the Rule if served by
ordinary mail (c) An affidavit and registry receipt issued by the mailing

215 Maceda v. De Guzman vda de Macatangay, 481 SCRA 415
43
office. The registry return card shall be filed immediately upon its receipt
by the sender, or in lieu thereof, the unclaimed letter together of the
sworn / certified copy of the notice given by the postmaster to the
addressee.217
1.If service is by registered mail, proof of service consists of the affidavit
of the person mailing and the registry receipt, both of which must be
appended to the motion. Absent one or the other, or both, there is no
proof of service.218
2.Late filing of the affidavit of service may be considered as substantial
compliance with the Rules.219
3.Failure of a party to comply with the required proof of service may be
excused where the motion is not a contentious motion and therefore, no
right of the adverse party would be affected by the admission thereof.220
NOTICE OF LIS PENDENS
Is an announcement to the world that a particular property (real) is in
litigation, serving as a warning that one who acquires the property or an
interest therein does at his own risk which is filed with the Office of the
Register of Deeds of the place where the property is located.
1.It shall contain (a) the names of the parties (b) object of the action or
defense (c) description of the property.221
2.It is only from the time of the filing of the notice for record shall a
purchaser or encumbrancer of the property affected thereby, be deemed
to have constructive notice of the pendency of the action and only of its
pendency against parties designated by their real names
3. It is available only in an action affecting title or right of possession of
real property. Specifically in actions (a) to recover possession of real
estate
(b)to quiet title (c) to remove a cloud (d) for partition (e) other
proceeding of any kind in court directly affecting title to the land or the
use or occupation thereof or buildings thereon.222
WHO MAY AVAIL OF IT
The plaintiff or the defendant when affirmative relief is claimed in the
answer
WHEN MAY IT BE CANCELLED
Upon order of the court when: It is shown that it has for the purpose of
molesting the adverse party or it is not necessary to protect the rights of
the party who caused it to be recorded.223
RULE 14 SUMMONS
DEFINED

218 Cruz v Court of Appeals, 388 SCRA 72
219 Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
220 PEA v Caoibes, Jr., 312 SCRA 767
222 Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals, 334 SCRA 756
223 Lim v Vera Cruz, 356 SCRA 386
44
It is a writ issued sealed and signed by the clerk of court upon filing of a
complaint and payment of requisite legal fees224 ISSUED to and
DIRECTED to the defendant containing the following: (a) name of the
court and of the parties (b) a direction that the defendant answer within
the time fixed by the Rules, and (c) notice that unless defendant answers,
plaintiff will take judgment by default and may be granted the relief
prayed for. ATTACHED THERETO IS A COPY OF THE COMPLAINT
AND ORDER FOR THE APPOINTMENT OF A GUARDIAN AD
LITEM, IF ANY.225
1.It shall also contain a reminder to the defendant to observe restraint in
filing a motion to dismiss and instead allege the grounds thereof as
defenses in the answer.226
WHO SERVES SUMMONS
The sheriff, his deputy, or other proper Court Officer, or for justifiable
reasons by any suitable person authorized by the court issuing the
summons.227
1.An Officer having management of a jail or institution, if a defendant is
a prisoner therein is deputized as a special sheriff for service of
summons.228
SIGNIFICANCE OF SUMMONS
The significance of summons is that it is the primary means by which a
Court is able to acquire jurisdiction over the person of the defendant and
to give notice that an action has been commenced against him.
1.Jurisdiction cannot be acquired over the person of the defendant even if
he knows of the case against him unless he is validly served with
summons229 OR the defendant voluntarily appears in the action.
2.Voluntary appearance shall be equivalent to service of summons. The
inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a
voluntary appearance.230
2.1The rule abandons previous rulings of the Supreme Court that a
motion to dismiss on the ground of lack of jurisdiction over the person be
based solely on that ground, otherwise, it is a voluntary appearance. This
is so because of the OMNIBUS MOTION RULE 231 that all objections
then available be included otherwise they are waived, as the only
exceptions are (1) the Court has no jurisdiction over the subject matter;
(2) there is another action pending between the same parties for the same
cause; (3) or, the action is barred by prior judgment or statute of
limitations.232 These defenses are not barred if not set up.
WHAT ARE THE MODES OF SERVICE

226 A.M. No. 03-1-09-SC
229 UCPB v Ongpin, 368 SCRA 464
230 Supra, Section 20, Rules 14
45
1. Service in person on the defendant by handling a copy thereof to the

defendant in person, or if he refuses to receive and sign for it, by
tendering it to him233
2. Substituted service by leaving a copy of the summons at defendants
residence with some person of suitable age and discretion, then residing
therein or leaving it at defendants office or regular place of business
with some competent person in charge thereof.234
2.1BUT, it may only be resorted to, if for justifiable causes, the defendant
cannot be served personally within a reasonable time. The impossibility
of service in person must be indicated in the return, otherwise,
substituted service is void. 235
2.2Service of summons on the defendant shall be by personal service first
and only when the defendant cannot promptly be served in person will
substituted service be availed of.236
3. Service by publication with leave of court, obtained by the filing of a
motion in writing, supported by an affidavit of the plaintiff or some
person in his behalf, setting forth the ground that allows resort to it.237
3.1The grounds that allow service of summons by publication are: (a)
Identity of the defendant is unknown OR whereabouts of the defendant is
unknown and cannot be ascertained by diligent inquiry238 (b)Defendant
does not reside and is not found in the Philippines but the suit can be
maintained against him because it is in REM OR QUASI IN REM 239 (c)
Defendant is a Philippine resident but is temporarily out of the country.240
Note the cross reference with Section 15 and the fact that
SUBSTITUTED SERVICE MAY ALSO BE AVAILED OF.
4.Extra-Territorial Service is allowed in suits against a non-resident
defendant not found in the Philippines can be made by:
4.1
(a) Personal service (b)
Publication in a newspaper of general
circulation in such places and for such time as the court may order, in
which case a copy of the summons and order of the court shall be sent by
registered mail to the last known address (c) Or any other manner the
court may deem sufficient.241 Resort to registered mail has been deemed
appropriate.242
4.2EXTRA-TERRITORIAL SERVICE CAN BE AVAILED OF when:
(a)
Action affects the personal status of the plaintiff (b) Action
relates to, or the subject of which is property within the Philippines in
which the defendant has or claims a lien or interest, actual or contingent
(c) When the relief demanded, in whole or in part consists of excluding
the defendant from any interest in property located in the Philippines (d)
When the defendants property has been attached in the Philippines.243

235 Hamilton v Rey, GR 139283, November 15, 2000
236 Samartino v Raon, 383 SCRA 664
241 Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92
242 Cariaga v Malaya, 143 SCRA 441
46
4.3Resort to extra-territorial service requires leave of court.

UPON WHOM MAY SERVICE OF SUMMONS BE MADE
Service of summons is to be made upon the defendant. If the defendant
is: (a) AN ENTITY WITHOUT JURIDICAL PERSONALITY it is to be
served upon any one of them or upon person in charge of the office or
place of business maintained in such name BUT such shall not bind
individually any person whose connection with the entity has, UPON
DUE NOTICE, been severed before the action has brought 244 (b)
MINOR, INSANE OR OTHERWISE INCOMPETENT it is to be served
upon him personally and his guardian / or guardian ad litem. In addition,
in case of a minor, service may also be made on his father or mother 245
(c) REPUBLIC OF THE PHILIPPINES it is to be served on the Solicitor
General 246 (d) PROVINCE, CITY,MUNICIPALITY OR SIMILAR
PUBLIC CORPORATION it is to be served on the executive head, or on
such other officers as the law or court may direct247 (e) DOMESTIC
PRIVATE JURIDICAL ENTITY its is to be served on the president,
managing partner, general manager, corporate secretary, treasurer or in
house counsel.248 Note the abandonment of doctrine of substantial
compliance.249 (f) FOREIGN PRIVATE JURIDICAL ENTITY it is to be
served upon its resident agent. If there be no resident agent, the
Government official designated by law such as the SEC, Insurance
Commissioner, Superintendent of Banks. If none, any of its officers or
agents in the Philippines. Note the required sequence of service. In
addition, if a lawyer enters an appearance without proof of having been
engaged by the foreign corporation, no voluntary appearance can be
inferred.250
AFTER SERVICE IS COMPLETE, WHAT MUST SERVER DO
1.Within 5 days after completion, a copy of the return must be served,
personally or by registered mail, to plaintiffs counsel, and he shall return
the summons to the clerk of court who issued it together with proof of
service.251
2.PROOF OF SERVICE is the writing executed by the server setting
forth (1) the manner, place and date of service; (2) the paper/s which
have been served with the process and name of the person who received
the same. IT SHALL BE SWORN TO WHEN MADE BY A PERSON
OTHER THAN THE SHERIFF / DEPUTY.252
2.1IF SUMMON IS BY PUBLICATION, PROOF OF SERVICE
CONSISTS OF: (a) Affidavit of printer, foreman, principal clerk editor,
business manager or advertising manager, COPY OF PUBLICATION
ATTACHED, and (b) Affidavit showing the deposit of a copy of the
summons and order for publication in the post office, postage prepaid
directed to the defendant by registered mail at / to his last known
address.253

249 Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa and Partner Co, Ltd v. Benito, 312 SCRA 65
250 Litton Mills v Court of Appeals, 256 SCRA 696
47
RULE 15 MOTIONS
DEFINED
A motion is an application for relief other than a pleading.254
REQUISITES OF A VALID MOTION
1. Shall be in writing except when made in open court or in the course of
the hearing or trial.255 Example: a motion for continuance made in
presence of adverse party.
2. It must state the relief sought to be obtained and the grounds on which
it is based, and if required by the rules or necessary to prove facts alleged
therein, it shall be supported by affidavits or other papers.256
3. It shall be set for hearing by the applicant except when the motion can
be acted upon by the court without prejudicing the rights of the adverse
party.257 Example: Motion for extension of time to plead
4. It must contain a notice of hearing addressed to all parties concerned,
specifying the time, date of the hearing which must not be later than 10
days after the filing thereof. 258
4.1A motion without a notice of hearing is pro-forma or a mere scrap of
paper. It presents no question which the court should decide. The
rationale behind the rule is plain: unless the movant sets the time and
place of hearing, the court will be unable to determine whether the
adverse party agrees or objects to the motion, and if he objects, to hear
him on his objection. The objective is to avoid a capricious change of
mind in order to provide due process to both parties and ensure
impartiality.259
4.2The absence of the notice of hearing will not toll the running of the
reglementary period for appeal.260
5. It must be served, together with the notice of hearing on the adverse
party at least 3 days before the date of hearing UNLESS THE COURT
FOR GOOD CAUSE SETS THE HEARING EARLIER.261
5.1The purpose of the three day notice rule is to avoid surprise upon the
opposite party and to give him time to study and meet the arguments of
the motion.262
6. There must be proof of service of every written motion set for hearing
otherwise it shall not be acted upon.263
6.1As a general rule, proof of service is mandatory.264
254 Supra, Section 1, Rule 15,

259 Fajardo v Court of Appeals, 354 SCRA 736
260 Cledera v Sarmiento, 39 SCRA 553
262 Remonte v. Bonto, 16 SCRA 257
264 Cruz v Court of Appeals, 388 SCRA 72
48
6.2A judge can act ex-parte on a motion where the rights of the adverse
party are not affected.265
WHEN SHOULD MOTIONS BE SET
All motions must be scheduled for hearing on Friday afternoons or if it
be a non-working holiday, in the afternoon of the next working day
UNLESS THE MOTION REQUIRES IMMEDIATE ACTION. 266This
day is MOTION DAY.
WHAT SHOULD A MOTION CONTAIN
1.A motion attacking a pleading (motion to dismiss) order, judgment, or
proceedings (motion for reconsideration) shall include all objections then
available, and all objections not so included are deemed waived
EXCEPT the defenses of Lack of Jurisdiction, Litis Pendentia, Res
Judicata, Statute of Limitations.267
1.1This is the OMNIBUS MOTION RULE.268
1.2The purpose of the Rule is to obviate multiplicity of motions as well
as discourage dilatory pleadings.269 Litigants should not be allowed to
reiterate identical motions speculating on the possible change of opinion
of the court or judges thereof.270
1.3
It requires the movant to raise all available exceptions in a
single opportunity to avoid multiple piecemeal objections. But to apply
the statutory norm, THE OBJECTIONS MUST BE AVAILABLE TO
THE PARTY AT THE TIME THE MOTION WAS FILED.271
2.IF MOTION IS ONE FOR LEAVE TO FILE A PLEADING OR
MOTION, IT SHALL BE ACCOMPANIED BY THE PLEADING /
MOTION SOUGHT TO BE ADMITTED.272 Example: Motion for leave
to admit amended complaint.
3.As to FORM, the Rules applicable to pleadings shall apply to written
motions as far as it concerns captions, designation, signature and other
matters.273
RULE 16 MOTION TO DISMISS
WHEN AND HOW IT CAN BE FILED
1.By Motion, within the time for the filing of an answer but before the
filing of an answer.
1.1
The rule is not absolute as a motion to dismiss may still be filed
after answer on the ground of (a) lack of jurisdiction (b) litis pendentia
265 Sumadchat v Court of Appeals, 111 SCRA 488

269 Dacanay v Alvendia, 30 SCRA 31
270 Miranda v Court of Appeals, 71 SCRA 295
271 PH Credit Corporation v Court of Appeals, 370 SCRA 155
49
(c) lack of a cause of action, and (d) discovery during trial of evidence
that would constitute ground for dismissal.274
2.AS AN AFFIRMATIVE DEFENSE IN THE ANSWER, and in the
discretion of the court, a preliminary hearing may be had as if a motion
to dismiss has been filed. IF ACTION IS DISMISSED, it shall be
without prejudice to the prosecution in the same / separate action of a
counter-claim pleaded in the answer.275
WHAT GROUNDS ARE AVAILABLE
A motion to dismiss may be made on any of the following grounds:276
1. The court has no jurisdiction over the person of the defending party
2.
The court has not jurisdiction over the subject matter of the
claims
3.
Venue is improperly laid
3.1
An objection to improper venue must be made before a
responsive pleading is filed, otherwise it is deemed waived.277
4. Plaintiff has no legal capacity to sue
4.1
This means that he is not in exercise of his civil rights, or does
not have the necessary qualification to appear or does not have the
character / representation he claims AS OPPOSED TO the LACK OF
PERSONALITY TO SUE which means that he is NOT the real party in
interest, and the basis for dismissal then is NO CAUSE OF ACTION or
FAILURE TO STATE A CAUSE OF ACTION.278
5. There is another action pending between the same parties for the same
cause
5.1
This is known as litis pendentia
5.2
The REQUISITES for its application are: (a) Identity of the
parties, or at least such as representing the same interests in both actions
(b) Identity of rights asserted and reliefs prayed for, the relief being
founded on the same facts. Identity in both cases, is such that judgment
in the pending case would, regardless of which party is successful
amount to res judicata in the other.279
5.3BETWEEN THE FIRST OR SECOND ACTION / OR LATTER
ACTIONS APPLY THE PRIORITY IN TIME RULE BUT RULE
MUST YIELD TO THE MORE APPROPRIATE ACTION. Example:
An action for declaratory relief to interpret a lease contract was filed
before an ejectment case, where the Supreme Court held that the
ejectment case is the more appropriate action.280
274 Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624

277 Fernandez v ICB, 316 SCRA 326
278 Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v. Court of Appeals, 199
SCRA 205
279 Victronics Computer v RTC, 217 SCRA 517
280 Teodoro v Mirasol, 99 Phil 150
50
5.4There is a 3RD TEST: INTEREST OF JUSTICE RULE which is a

determination of which court would be in a better position to serve the
interest of justice considering : (a) nature of the controversy; (b)
comparative accessibility of the court to the parties; (c) other similar
factors.281
6. The cause of action is barred by a prior judgment or by the statute of
limitations
6.1
The REQUISITES OF RES JUDICATA are: (a)
Former
judgment must be FINAL (b) Rendered by a court having jurisdiction
over the subject matter and the parties (c) It must be a judgment or order
on the merits (d)There must be between 1 st / 2nd action, identity of
parties / subject matter / causes of action
6.2
The DOCTRINE IS FOUNDED ON 2 GROUNDS: (a)
Public policy and necessity which makes it in the interest of the state
that there should be an end to litigation (b) Litigant should be spared the
hardship of being vexed twice for the same cause
6.3
NOTE that there can be no res judicata in support cases as
future support cannot be compromised.282
6.4Statute of Limitations or prescription is a statute establishing a period
of time from the accrual of a cause of action within which a right of
action must be exercised. If the action is not brought within the period,
then it is barred.
7.
The pleading asserting the claim states no cause of action.
7.1
The TEST OF SUFFICIENCY OF A CAUSE OF ACTION is:
Whether accepting the veracity of the facts alleged in the complaint, the
Court can render judgment (valid) upon the same in accordance with the
prayer in complaint.
7.2
NO PRESENTATION OF EVIDENCE IS REQUIRED AS
THERE IS A HYPOTHETICAL ADMISSION OF THE FACTS
ALLEGED IN THE COMPLAINT
7.3
FAILURE TO STATE A CAUSE OF ACTION/NO CAUSE OF
ACTION DISTINGUISHED FROM LACK OF A CAUSE OF
ACTION283: (a) The former refers to insufficiency of allegations, while
the latter refers to insufficiency of factual basis (b) The former is raised
only in a in a motion to dismiss before responding to a complaint, while
the latter can be raised at any time (c) The former allows dismissal to be
had at the early stages of the action, while the latter allows dismissal
after questions of fact have been resolved after evidence is presented or
stipulations / admissions are had.
8. Claim or demand set forth in plaintiffs pleading has been paid,
waived, abandoned, or otherwise extinguished
9.
Claim on which the action is founded is unenforceable under the
provisions of the statute of frauds.
281 Roa-Magsaysay v Magsaysay, 98 SCRA 592

282 De Asis v Court of Appeals, 303 SCRA 176
283 Supra, Rule 33
51
9.1
Statute of Frauds is statute/s that deals with the enforcement and
requirements of agreements in particular circumstances. It is descriptive
of statutes which require certain classes of contracts to be in writing.284
10. A condition precedent for filing the claim has not been complied with
10.1
In certain cases, referral of a case to the Lupon is a condition
precedent for filing a complaint in court. It is not jurisdictional. 285 It may
be waived if not raised seasonably in a motion to dismiss.286
RESOLUTION OF A MOTION TO DISMISS
1.It shall BE HEARD287, at the hearing, the parties shall submit
arguments on the questions of law and evidence on the questions of law
and fact involved EXCEPT THOSE NOT AVAILABLE AT THAT TIME.
SHOULD THE CASE GO TO TRIAL, EVIDENCE DURING THE
HEARINGS SHALL AUTOMATICALLY BE PART OF THE
EVIDENCE OF PARTY PRESENTING THE SAME.
2.After the hearing, Court shall either DISMISS THE ACTION, DENY
THE MOTION OR ORDER AMENDMENT OF THE PLEADING,
stating clearly and distinctly the reasons for the action taken. 288
2.1It is now mandated that the Court cannot defer resolution of the
motion based on the reason that the ground relied upon does not appear
to be indubitable or sure
3. IF MOTION IS DENIED, the movant shall file an answer within the
balance of the period prescribed by Rule 11, which he was entitled to at
the time of serving the motion, but not less than 5 days in any event,
COUNTED FROM NOTICE OF DENIAL. IF ORDERED AMENDED,
an answer is to be filed within period prescribed by Rule 11, counted
from service of amended pleading, unless the court provides a longer
period. Note that it is 15 days as no answer has of yet been filed. Hence
the amendment is one that is a matter of right.289
3.1The EFFECT OF DISMISSAL is that subject to the right to appeal, an
order granting a motion to dismiss on the grounds of (a) prior judgment
or statute of limitations
(b) claim / demand has been paid, waived
abandoned or otherwise extinguished, or (c) is unenforceable under the
statute of frauds SHALL bar refiling of the same.290
RULE 17 - DISMISSAL OF ACTIONS
PLAINTIFF DISMISSAL OF HIS OWN COMPLAINT
A plaintiff may cause the dismissal of his complaint by:
1.Filing of a notice of dismissal at anytime before service of an answer or
motion for summary judgment. Once filed, the court shall issue an order
confirming the dismissal, which is without PREJUDICE, unless stated
otherwise. BUT, such dismissal will operate as adjudication on the merits
284 Litonjua v Fernandez, 427 SCRA 478

285 Junson v martinez, 405 SCRA 390
286 Banares v Balising, 328 SCRA 36
52
when filed by a plaintiff who has once dismissed in a competent court,

his action based on or including the same claim. 291 This is known as the 2
dismissal rule.
2.Filing a motion to dismiss but such will not result in dismissal without
the approval of the court and upon terms and conditions as the court
deems proper. BUT, if a counterclaim has been pleaded before service of
motion to dismiss the dismissal is limited to the complaint. If shall be
without PREJUDICE TO RIGHT OF DEFENDANT to prosecute his
counterclaim in a separate action unless within 15 days from notice of the
motion he manifests a preference to have it resolved in the same action.
UNLESS specified, a dismissal is without prejudice. NOTE also that a
CLASS SUIT shall not be dismissed or compromised without the
approval of the Court.292
COURT DISMISSAL ON ITS MOTION OR THAT OF DEFENDANT
The court can motu propio or upon motion of the defendant dismiss a
complaint when: (a)If, for no justifiable reason, the plaintiff fails to
appear on the date of the presentation of his evidence in chief on the
complaint (b) If, for no justifiable reason, plaintiff fails to prosecute his
action for an unreasonable length of time (c) If, for no justifiable reason,
plaintiff fails to comply with Rules of Court or any order of the Court.
DISMISSAL IS WITHOUT PREJUDICE TO RIGHT OF THE
DEFENDANT TO PROSECUTE HIS COUNTERCLAIM IN THE
SAME OR SEPARATE ACTION and SHALL HAVE THE EFFECT OF
ADJUDICATION ON THE MERITS, UNLESS OTHERWISE
DECLARED BY THE COURT.293
1.The REMEDIES OF THE PLAINTIFF are: (a) Appeal the dismissal as
it is a FINAL ORDER, or (b) If without prejudice, REFILE THE
ACTION as an order dismissing without prejudice is not subject to
appeal.
2. At the pre-trial, the court ordered the parties to submit a compromise
agreement within a ten day period. The parties were unable to submit the
compromise agreement, thus leading to a dismissal. There is nothing in
the rules that imposes a sanction for failure to submit a compromise
agreement.294
APPLICABILITY OF THE RULE
Rule applies to dismissal by the DEFENDANT of his counterclaims
cross-claims or 3rd party claims. Voluntary dismissal by the claimant by
notice as under Section 1 of the Rule shall be made before a responsive
pleading, motion for summary judgment is served, or if there be none,
before introduction of evidence at the trial or hearing.295
RULE 18 PRE-TRIAL
WHAT IS PRE-TRIAL

294 Ruiz, Jr v CA, 212 SCRA 660
53
It is a procedural devise intended to clarify and limit the basic issues

between the parties. Its main objective is to simplify, abbreviate and
expedite trial, or otherwise dispense with it.296
It is a conference or hearing at which the court, with the cooperation of
the parties, seek to determine definitively what precisely are the factual
issues to be tried and how each party intends to establish his position on
each disputed factual issue.
WHEN CONDUCTED
After the last pleading has been served and filed. It shall be the duty of
the plaintiff to move ex-parte that the case be set for pre-trial.297
1.SC Adm. Circular 3-99 dated January 15, 1999 defined promptly as 5
days.
2. SC Administrative Matter No. 03-1-09, SC, Section A (1.2) Should the
plaintiff fail to move ex-parte to set case for pre-trial, the branch clerk of
court should issue a notice of pre-trial.
2.1
The same circular also requires that the presiding judge direct
the parties to mediation, if possible. If it fails it will schedule the pre-trial
BUT IT MAY ALSO SCHEDULE A PRELIMINARY CONFERENCE
before the branch clerk of court to assist them in REACHING A
SETTLEMENT, PRE-MARKING OF DOCUMENTS AND EXHIBITS
AND TO CONSIDER OTHER MATTERS THAT WILL AID IN
PROMPT DISPOSITION. The JUDGE is also directed to consider
assisting the parties in effecting a settlement given the evidence of the
parties.
3. The last pleading is the answer to the original complaint, cross claim,
or, third party complaint AND the reply.
NATURE AND PURPOSE
Pre-trial is by nature mandatory and the purpose for its conduct is to take
up the following matters:298
1.Possibility of amicable settlement / or submission to alternative modes

of dispute resolution
2. Simplification of the issues
3. Necessity / desirability of amendment to the pleadings
4. Possibility of obtaining stipulations or admissions of fact and of
documents to avoid unnecessary proof
5. Limitation of number of witnesses
6. Advisability of a preliminary reference of issues to a commissioner
7. Propriety of judgment on the pleadings, summary judgment, or
dismissing the action if a valid ground therefor be found to exist
8. Advisability of suspending the proceedings
296 Interlining v Philippine Trust Company, 378 SCRA 521

54
9. Such other matter as may aid in the prompt disposition of the action
UPON WHOM NOTICE OF PRE-TRIAL IS TO BE SERVED
It shall be served on counsel, or party if not represented by counsel.
Counsel is charged with the duty to notify the party.299
WHOSE PRESENCE IS REQUIRED AT PRE-TRIAL
The parties and counsel are required to be present during the pre-trial. A
party may be excused if: (a) A valid cause is shown therefore (b)A
representative shall appear duly authorized in writing to do the following:
(1) enter into amicable settlement; (2) submit to alternative modes of
dispute resolution; (3) enter into stipulations / admissions of fact /
documents.300
EFFECT OF FAILURE TO APPEAR
1.If plaintiff fails to appear despite DUE NOTICE, he may be declared
NON SUITED and the complaint DISMISSED. The dismissal shall be
with prejudice, unless otherwise ordered by the court. HIS REMEDY is
to appeal order of dismissal because it is a FINAL resolution. If
dismissed without prejudice, he can REFILE the complaint
2. If defendant fails to appear despite due notice, plaintiff IS ALLOWED
to present his evidence ex-parte and the court may render judgment on
the basis thereof. 301
3.AS A RULE, THERE CAN BE NO SECOND PRE-TRIAL UNLESS
BOTH PARTIES CONSENT.302
WHAT MUST BE FILED BEFORE PRE-TRIAL

A pre-trial brief must be filed and served on the adverse party at least 3
days before the pre-trial containing:303
1.Statement of willingness to enter into an amicable settlement, the
desired terms or to submit to alternative modes of dispute resolution
2. Summary of admitted facts / proposed stipulation of facts
3. Issues to be tried or resolved
4. Number of witnesses / names, abstract of testimonies, approximate
number of hours that will be required for presentation of their respective
evidence
5. Copies of all documents intended to be presented which statement of
the purposes of their offer
6. Manifestation of their having availed of or their intention to avail of
discovery procedure, or need for referral of any issues to commissioners

302 Young v Court of Appeals, 204 SCRA 584
55
7. Applicable law / jurisprudence

8. Available trial dates of counsel for complete presentation of evidence
which must be within a period 3 months from the first day of trial.304
FAILURE TO FILE A PRE-TRIAL BRIEF SHALL HAVE THE SAME
EFFECT AS FAILURE TO APPEAR
PRE-TRIAL ORDER
Proceedings shall be recorded. Upon termination, court shall issue an
order which shall recite in detail: (a) matters taken up (b) action taken
thereon (c) amendments allowed to the pleadings (d) agreements /
admissions made by the parties as to any of the matters taken (e)
explicitly defining and limiting the issues to be tried. OBJECT it shall
control the subsequent course of the action, UNLESS MODIFIED TO
PREVENT MANIFEST INJUSTICE. 305
1.Pre-trial is primarily intended to make certain that all issues necessary
to the disposition of a case are properly raised. Thus, to obviate the
element of surprise, parties are expected to disclose at a pre-trial
conference all issues of law and fact which they intend to raise at the
trial, except such as may involve privileged or impeaching matters. The
determination of issues at a pretrial conference bars the consideration of
other questions on appeal.306
2.NOTE THAT TRIAL SHALL BE LIMITED TO ISSUES STATED IN
THE PRE-TRIAL ORDER.307
3.Notwithstanding, courts are not required to resolve all issues raised in
pleading unless necessary for the resolution of the case.308
RULE 19 INTERVENTION
WHO MAY INTERVENE
A person who has a (a) legal interest in the matter in litigation (b) has
legal interest in the success of either of the parties (c) has an interest
against both or (d) is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or
an officer thereof.309
1.Examples are (a)an action for payment of money, where personal
property of the defendant is attached, a 3rd person claiming the attached
property can intervene (b) action by alleged owners of the land sought to
be foreclosed.
2. The interest which entitles a person to intervene in a suit must be in
the matter in litigation and of SUCH DIRECT OR/AND IMMEDIATE
CHARACTER that intervenor will either GAIN or LOSE by direct legal
operation and effect of judgment. 310
304 Section 6, SC Adm. Circular 3-99, January 15, 1999

306 Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88
308 IBAA vs. IAC, 167 SCRA 450
310 Roxas v Dinglasan, 28 SCRA 430
56
3.Intervention does not lie for a transferee pendente lite.311

HOW AND WHEN CAN A PERSON INTERVENE
Filing of a motion for leave of court to intervene, attaching thereto a copy
of the pleading in intervention, which is then served on the original
parties at any time before rendition of judgment by the trial court. 312
1.The COURT MAY REFUSE TO GRANT LEAVE WHEN (a) It will
unduly delay or prejudice the adjudication of the rights of the original
parties. Example: Delay or laches in bringing intervention, OR (b)
Intervenors rights may be fully protected in a separate proceeding.
Example: Attachment of real property subject of a mortgage
2. The pleadings in intervention are (a) Complaint in Intervention, if he
asserts a claim against either or all of the original parties, OR (b) Answer
in Intervention, if he unites with the defending party in resisting the
claim of the plaintiff. 313
3.If granted, a complaint in intervention is to be replied to within 15 days
from notice of the order admitting the same unless a different period is
fixed by the court.
4. NO INTERVENTION IS ALLOWED IN LAND REGISTRATION
CASES as the remedy is to file an OPPOSITION. Neither is it allowed in
cases covered by the Rules on Summary Procedure.
5. Intervention is merely collateral or accessory or ancillary to the
principal action and not an independent proceeding. Hence, with the final
dismissal of the original action, the complaint in intervention can no
longer be acted upon.314
6.An order denying a motion for intervention is appealable.315
RULE 20 CALENDAR OF CASES
MAINTENANCE OF THE COURT CALENDAR
The clerk of court, under the direct supervision of a judge, shall keep a
calendar for PRE-TRIAL, TRIAL, TRIALS THAT WERE
ADJOURNED OR POSTPONED, THOSE WITH MOTIONS TO SET
FOR HEARING. In fixing the calendar, PREFERENCE IS GIVEN TO
HABEAS CORPUS, ELECTION CASES, SPECIAL CIVIL ACTIONS,
AND THOSE REQUIRED BY LAW.316
ASSIGNMENT OF CASES
The assignment of cases shall always by raffle done in open session of
which adequate notice shall be given to afford interested parties the
opportunity to be present.317 The purpose is to obviate public suspicion
regarding assignment of cases to predetermined judges.318

314 Barangay Matictic v Elbinias, 148 SCRA 83
315 Foster-Gallego v Galang, 435 SCRA 275
318 Ang v Bello, 163 SCRA 358
57
RULE 21 SUBPOENA
WHAT IS A SUBPOENA
A process directed to a person requiring him to attend and testify at the
hearing or trial of an action, or at any investigation conducted by
competent authority, or the taking of his deposition
KINDS OF SUBPOENA
The kinds of subpoena are: (a) SUBPOENA AD TESTIFICANDUM if it
directs and requires a person to attend and testify, OR (b) DUCES
TECUM if it requires him to bring books/documents/or other things
under his control.319
BY WHOM ISSUED
A subpoena is issued by (a) The court before whom the witness is
required to attend (b) The court where deposition is to be taken (c)
Officer or body authorized by law to do so in connection with
investigations that it may conduct (d) Any justice of the Supreme
Court/Court of Appeals in any case or investigation pending within the
Philippines320
1.A request by a party for the issuance of a subpoena does not require
notice to other parties to the action.321
2.In taking depositions, the clerk of court shall not issue a subpoena
duces tecum without a court order.322
3.Absent any proceeding, suit or action, commenced or pending before a
court, a subpoena may not issue.323
WHEN IS A WITNESS NOT BOUND BY A SUBPOENA
1.Witness resides more than 100 kilometers from his residence to the
place where he is to testify by the ordinary course of travel. 324 This is
also called the VIATORY RIGHT OF A WITNESS or the right not to be
compelled to testify in a civil case if he lives more than 100 kilometers
from his residence to the place where he is to testify by ordinary course
of travel.
1.1If the viatory right is invoked, a witness can still be compelled to
testify by the taking of his deposition in a place within 100 kilometers
from where he resides, observing the following steps: (a) Party desiring
to take deposition shall give reasonable notice in writing to every other
party in the action stating the TIME, PLACE AND NAME/ADDRESS
OF PERSON WHOSE DEPOSITION IS TO BE TAKEN. There should
be proof of service of the notice (b) Proof of service of notice to take
deposition shall be presented to the clerk of court of the place where
deposition is to be taken (c) On the basis of such proof of service, the
clerk upon authority and under seal of the court, shall issue the subpoena
BUT a subpoena duces tecum cannot be issued without an order of the

321 Adorio v Bersamin, 273 SCRA 217
323 Collado v Bravo, 356 SCRA 411
58
Court (4) Subpoena is to be served on witness whose deposition is to be

taken.325
2.Witness is a detention prisoner, if no permission of the court in which
his case is pending is obtained or if the witness is a prisoner sentenced to
death, reclusion perpetua or life imprisonment and is confined in a penal
institution, if authority of the SC to bring out the prisoner has not been
obtained. The court should examine and study the application properly to
determine if it is being made for a valid purpose.326
FORM AND CONTENTS OF SUBPOENA
A subpoena must contain the following: (a) Name of the court (b) Title of
action/investigation AND IS TO BE DIRECTED to the person whose
attendance is required. IF DUCES TECUM, in addition, it must contain a
reasonable description of the books, documents, things demanded which
is must appear to the Court to be PRIMA FACIE relevant.327
WHAT ARE THE GROUNDS TO QUASH A SUBPOENA
1.If DUCES TECUM, it may be quashed on the following grounds: (a) It
is unreasonable and oppressive (b) Relevancy of the books, documents
or things do not appear (c) Person in whose behalf subpoena is issued
fails to advance the reasonable costs of the production thereof (d) The
witness fees and kilometrage allowed by the rules were not tendered
when subpoena was served. Under A.M. No. 04-2-04-SC, witness fees
shall be PHP 200.00 a day inclusive of all expenses
2. If AD TESIFICANDUM, it may be quashed on the following grounds:
(a) Witness is not bound by the subpoena (b) Witness fees and
kilometrage allowed by rules were not tendered when the subpoena was
served.328
HOW IS A SUBPOENA SERVED
In the same manner as personal or substituted service of summons,
original is to be exhibited and delivered to person on whom it is served
tendering the fees for one day attendance at the kilometrage allowed by
Rules EXCEPT if subpoena is issued by or on behalf of the Republic of
the Philippines or an officer or agency thereof. Tender must be made so
as to allow the witness a reasonable time for preparation or travel to the
place of attendance.329
1.If DUCES TECUM, the cost of production of books, papers or things
must also be tendered.
2. Under A.M. No. 04-2-04-SC, the fee for service of summons is PHP
100.00 per witness.
CAN A PERSON BE COMPELLED TO APPEAR AND TESTIFY
WITHOUT A SUBPOENA
Yes, when he is PRESENT IN COURT, in which event it is as if he were
in attendance upon subpoena issued by the Court.330

59
WHAT ARE THE CONSEQUENCES OF DISOBEDIENCE TO A

SUBPOENA
The consequences of disobedience are: (a) He may be arrested and
brought before the Court where his attendance is required, the cost of
warrant and seizure shall be paid by the witness if the Court finds
disobedience to be willful and without just excuse. 331 (b) Citation in
contempt by the court from which the subpoena is issued. It not issued by
a Court, then in accordance with the applicable rule / law.332
RULE 22 COMPUTATION OF TIME
HOW COMPUTED
The day of the act / event from which the designated period of time
begins to run is excluded and date of performance included. If the last
day falls on a Saturday, Sunday or legal holiday in the place where the
Court sits, the time shall not run until the next working day.333
EFFECT OF INTERUPTIONS
Allowable period after interruption shall start to run on the day after,
notice of the cessation of the cause thereof. The day of the act that caused
cessation shall be excluded in the computation of the period.
1.RULE ON COMPUTATION OF TIME DOES NOT APPLY TO
PRESCRIPTION OF OFFENSES or PRESCRIPTION OF CAUSES OF
ACTION. Hence, if the last day falls on a Saturday, Sunday or legal
holiday, it prescribes on the said date.
RULES 23 TO 29 MODES OF DISCOVERY
WHAT IS DISCOVERY
The methods used by the parties to a civil action to obtain information
held by the other party that is relevant to the action.
PURPOSES OF DISCOVERY
The purposes of resort to discovery are: (a) It is a device to narrow
down / clarify the basic issues between the parties (b) It is a device to
ascertain the facts relative to the issues
WHAT ARE THE MODES OF DISCOVERY
The modes of discovery (a) Deposition pending action 334 (b) Deposition
before action or pending appeal 335(c) Interrogatories to parties336 (d)
Request for admission by adverse party337 (e)Production or inspection of
documents / things338 (f) Physical / mental examination of persons339

334 Supra, Rule 23
335 Supra, Rule 24
336 Supra, Rule 25
337 Supra, Rule 26
338 Supra, Rule 27
339 Supra, Rule 28
60
WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN

1.WITH LEAVE OF COURT, after jurisdiction has been acquired /
obtained over any defendant or over property which is the subject of the
action as the issues are not yet joined and disputed facts are not yet clear
OR if a person is confined in a prison with LEAVE OF COURT ONLY,
on such terms that the Court may prescribe.
2. WITHOUT LEAVE OF COURT, after an answer has been served.340
WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY WHOM
Any person, whether a party or not, upon ORAL EXAMINATION OR
WRITTEN INTERROGATORIES upon the initiative of ANY PARTY.
SCOPE OF A DEPOSITION
GENERALLY, the deponent may be examined regarding any matter,
NOT PRIVILEGED, which is RELEVANT TO THE SUBJECT OF THE
PENDING ACTION whether it RELATES TO CLAIM OR DEFENSE
of any other party. INCLUDING THE EXISTENCE, DESCRIPTION,
NATURE, CUSTODY, CONDITION, LOCATION of any BOOKS,
DOCUMENTS OR OTHER TANGIBLE THINGS and the IDENTITY
and LOCATION of persons having knowledge of relevant facts.341
1.The limitation as to the taking and scope of a deposition after notice is
served for its taking by oral examination,
UPON MOTION
SEASONABLY FILED by a PARTY OR of the PERSON to be
examined, and for GOOD CAUSE shown, the court in which the action
is pending may order: (a) Deposition not be taken (b)It be taken only at
some designated place other than that stated in the notice (c)It be taken
only on written interrogatories (d) That certain matters shall not be
inquired into (e) That scope of the examination shall be held without
anyone present except the parties to the action, and their officers of
counsel (f)That after depositions are sealed, they shall be opened only by
order of the court (g)That secret processes, developments or research
need not be disclosed (h)That parties shall simultaneously file specified
documents or information enclosed in sealed envelopes to be opened as
directed by the Court (i) That court may make any order which justice
requires to protect the party or witnesses from annoyance embarrassment
or oppression.342
2.During the taking of the deposition, it shall be taken subject to the
following limitations:
2.1
During the taking of the deposition, on motion or petition of any
party or the deponent upon showing that the examination is being
conducted in BAD FAITH on IN SUCH MANNER as
UNREASONABLY to ANNOY EMBARRASS OR OPPRESS the
DEPONENT, or a party the COURT where the action is pending or the
RTC of the place where deposition is being taken may ORDER the
officer taking the examination to cease forthwith or limit the scope as
provided in Section 16.
2.2
If terminated, it shall be resumed thereafter only upon order of
the Court in which the action is pending. UPON DEMAND of the
OBJECTING PARTY/DEPONENT, the taking shall be suspended for the

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time necessary to make a notice for an order. In granting/refusing such

order, the court may impose upon either party or upon the witness the
requirement to pay costs/expenses as the Court may deem reasonable.343
BEFORE WHOM MAY DEPOSITIONS BE TAKEN
1.WITHIN THE PHILIPPINES: a judge, notary public, or person
authorized to administer oaths, at any time or place if so stipulated in
writing by the parties.344
2.IN FOREIGN COUNTRIES: On notice before a secretary of the
embassy or legation or the diplomatic minister and his staff, consul
general, consul, vice consul or consular agent of the Republic of the
Philippines, or before such person or officer as may be appointed by
commission or letters rogatory.345
2.1A Commission is an instrument issued by a court of justice or other
competent tribunal to authorize persons to take a deposition or do any
other act by authority of such court or tribunal. A Commission is
addressed to officers designated by name or descriptive title.
2.2
Letters Rogatory is an instrument sent in the name and by
authority of a judge or court to another, requesting the latter to cause to
be examined, upon interrogatories filed in a case pending before the
former, a witness who is within the jurisdiction of the judge or court to
whom such letters are addressed. Letters Rogatory are addressed to a
judicial authority in a foreign country AND may be applied for and
issued only after a commission has been returned unexecuted.
WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS
Person who is a relative within the 6 th degree of consanguinity / affinity
OR employee or counsel of any of the parties OR relative within the
same degree or employee of counsel OR is financially interested in the
action.346
KINDS OF DEPOSITIONS HOW TAKEN
A.DEPOSITION UPON ORAL EXAMINATION
1. Giving of reasonable notice in writing to every other party to the
action, which must state the time / place of the taking of the deposition
and the name and address of the person to be examined, if known, IF
NOT KNOWN, a general description sufficient to identify him or the
particular class or group to which he belongs. ON MOTION OF PARTY
UPON WHOM NOTICE IS SERVED, the COURT, for CAUSE, may
ENLARGE OR SHORTEN THE TIME.347
2.Officer taking the deposition shall put the witness under oath and shall
personally, or by someone acting under his direction and his presence
record the testimony of the witness stenographically unless the parties
agree otherwise.
All objections as to QUALIFICATION OR OFFICER TAKING
DEPOSITION, MANNER OF TAKING EVIDENCE PRESENTED,

344 Supra, Sections 10 and 14, Rule 23
345 Supra, Sections 11, 12, and 14, Rule 23
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CONDUCT OF PARTIES OR ANY OTHER OBJECTION shall be

NOTED ANY EVIDENCE OBJECTED TO SHALL BE TAKEN
SUBJECT TO OBJECTIONS. PARTIES SERVED WITH NOTICE, IN
LIEU OF PARTICIPATING IN THE TAKING OF DEPOSITION, may
submit written interrogatories which the officer taking the deposition
shall propound to the witness and record the answers VERBATIM.348
3.After the taking of the deposition and testimony is transcribed it is
submitted to the witness for examination and shall be read to or by him,
unless such is waived by the witness and the parties. IF THERE ARE
CHANGES IN FORM / SUBSTANCE which the witness desires to
make it shall be entered upon the deposition by the officer with a
statement as to the reason given by the witness as why they are being
made. The deposition is then 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 NOT SIGNED, officer shall sign it and state on the record why it was
not signed together with reasons. If there is refusal to sign, the EFFECT
is that the deposition then may be used fully as though signed, unless on
a motion to suppress under Sec 29 (f) {errors or irregularities in
preparation}, the Court holds that the reason for refusal to sign require
rejection of the deposition in whole or in part.349
4.Once signed, 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 of the witness. He shall then securely seal the deposition in an
envelope endorsed with the title of the action and marked deposition of
_______ to be promptly FILED WITH THE COURT WHERE ACTION
IS PENDING OR SENT BY REGISTERED MAIL TO THE CLERK
THEREOF FOR FILING.350
5.Notice of filing shall then promptly be given by the officer to all
parties351 and upon payment of reasonable charges, he is to furnish copies
of the deposition to any party or the deponent. 352
EFFECT OF NON-APPEARANCE
1.IF PARTY GIVING NOTICE FAILS TO APPEAR AND ANOTHER
ATTENDS IN PERSON OR BY COUNSEL, the Court may order the
party giving notice to pay reasonable expenses incurred to attend,
including reasonable attorneys fees. 353
2.IF PARTY GIVING NOTICE DOES NOT SERVE SUBPOENA AND
WITNESS DOES NOT APPEAR, Court can order party giving notice to
pay reasonable expenses for attendance plus attorneys fees to a party
who appears in person or by counsel354 (Section 24)
B.DEPOSITION UPON WRITTEN INTERROGATORIES
1. Party desiring to take the deposition upon WRITTEN
INTERROGATORIES shall serve them upon every other party with
notice stating: (1) name and address of the person who will answer them
(2) descriptive title and address of the person who will take the

63
deposition (3) Within 10 days, party served may serve crossinterrogatories on the party proposing to take the deposition (4) Within 5
days thereafter, the latter may serve re-direct INTERROGATORIES
upon the party serving crossinterrogatories (5) within 3 days after being
served of re-direct INTERROGATORIES, a party may serve re-cross
interrogatories upon party proposing to take deposition.355
2.A copy of the notice and copies of all interrogatories shall be delivered
by the party taking the deposition to officer designated in the notice, who
shall proceed promptly in the manner provided by Sections 17, 19 and 20
to take the testimony of the witness in response to the interrogatories and
to prepare, certify, and file / mail the deposition attaching copies of the
notice and interrogatories.356
3.Officer must promptly give notice of filing / and may furnish copies to
parties and deponent upon payment of reasonable charges.357
NOTE: that Sections 15, 16 and 18 are applicable and that by motion, it
can be asked that the deposition be upon oral examination.
4.SEE: Gerochi vs. Dept of Energy GR 159796, April 5, 2005
DISTINGUISHED
UNDER RULE 25
FROM
INTERROGATORIES
TO
PARTIES
An interrogatory under Rule 25 is allowed UNDER THE SAME

CONDITIONS AS SPECIFIED IN SECTION 1, RULE 23 as to when it
is to be had and is for the purpose of enabling any party desiring to elicit
material facts / relevant facts from any ADVERSE PARTY by the filing
and service upon the latter of a written interrogatory to be answered by
the party served or if party is public / private corporation or a
partnership / association by any officer thereof competent to testify in its
behalf.358
HOW AND WHEN ANSWERED
Responses, which must be signed and sworn to, must be filed within 15
days from service, unless the Court on motion and for good cause shown
extends or shortens the time359
CAN THEY BE OBJECTED TO
Yes, objections may be presented to the court within 10 day after service
of notice as in the case of a motion, answers shall then be deferred until
objections are resolved, which shall be as early a time as is practicable.360
HOW MANY INTERROGATORIES
No party may, without leave of court, serve more than one set of
interrogatories to be answered by the same party.361
SCOPE AND USE

64
It may relate to any matters that can be inquired into under Section 2,
Rule 23 and the answers used for the same purpose provided for by
Section 4, Rule 23362
EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES
Unless thereafter allowed by the court for good cause shown and to
prevent failure of justice, a party not served with written interrogatories
may not be compelled by the adverse party to give testimony in open
court or give a deposition pending appeal.363
FURTHER DISTINGUISHING DEPOSITION UPON WRITTEN
INTERROGATORIES AND WRITTEN INTERROGATORIES
1.Any person, party or not can be required to or compelled to give a
deposition upon written interrogatories, while only the adverse party may
be compelled to answer a written interrogatory.
2. A deposition upon written interrogatory is taken before an officer,
while an adverse party without appearing before an officer shall answer
them in writing and under oath.
C.
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
UNDER RULE 24 (IN PERPETUAM REI MEMORIAM)
HOW IS A DEPOSITION BEFORE ACTION OBTAINED
By the filing of a verified petition by a person desiring to perpetuate his
testimony or that of any person in relation to any matter cognizable in
any court in the Philippines in the Court in the place of residence of the
expected adverse party. 364
1.The CONTENTS OF THE PETITION which shall be entitled in the
name of the petitioner and should show: (a) That petitioner expects to be
a party to an action in a Court in the Philippines but is presently unable to
bring it or cause it to be brought (b) The subject matter of the expected
action and his interest therein (c) The facts that he desires to establish by
the proposed testimony and his reasons for desiring to perpetuate it (d)
The names or description of the person he expects will be adverse
parties and their addresses so far as known (e) The names and addresses
of the persons to be examined and the substance of the testimony which
he expects to elicit from each AND SHALL THEN 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.365
2.To Perpetuate means to preserve or make available testimony for later
use at a trial by means of deposition.
WHAT IS DONE AFTER PETITION IS COMPLETED
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
that: he will apply to the Court at a time and place stated therein, for the
order described in the petition. At least 20 days before the date of the

65
hearing, the Court shall cause notice thereof to be served on the parties
and prospective deponents in the manner provided for service of
summons.366
WHAT WILL OCCUR THEREAFTER
If the Court is satisfied that the perpetuation of testimony may prevent a
failure of justice or delay of justice, it shall make an order designating or
describing the persons whose depositions are to be taken, specifying the
subject and whether it will be upon oral execution or written
interrogatories under Rule 23.367For purposes of applying Rule 23,
references to the court in which the action is pending shall be deemed to
refer to thecourt in which petition for such deposition is filed. 368
USE OF DEPOSITION
Deposition taken under the Rule or although not so taken, it would be
admissible in evidence, it may be used in any action involving the same
subject matter contained in petition subsequently brought in accordance
with Sections 4 and 5 of Rule 23.369
WHEN DEPOSITIONS PENDING APPEAL ARE TAKEN
If appeal is taken from a judgment of a Court including the CA in proper
cases or before the taking of an appeal if the time therefore has not yet
expired. The Court in which judgment was rendered may allow taking of
depositions of witnesses to perpetuate their testimony for use in the event
of further proceedings in the said Court.
HOW TAKEN
Party makes a motion in said Court for leave to take depositions upon
the said notice and service thereof as if the action was pending therein
MOTION states (1) name and addresses of persons to be examined and
substance of testimony to be elicited (2) reasons for perpetuating
testimony.
If Court finds that it is proper to avoid failure or delay of justice it may
allow the depositions to be taken and used in the same manner and under
same conditions as prescribed for depositions in pending actions.370
EFFECT OF TAKING DEPOSITIONS
A party shall not be deemed to make a person his own witness by taking
his deposition.371
EFFECT OF USING DEPOSITIONS
If introduced in evidence in whole/part for any purpose OTHER THAN
contradicting or impeaching the deponent, such makes the deponent the
witness of the party introducing the deposition BUT it does not apply to
the use of an adverse party of a deposition as described in Par. (b)
Section 4 of Rule 23.372

66
USE OF DEPOSITION
When can it be used? at the trial, upon the hearing of a motion or an
interlocutory proceeding ANY PART or ALL OF A DEPOSITION, so
far as admissible under the rules of evidence may be used AGAINST any
party who was present, or represented at the taking or had due notice
thereof, in ACCORDANCE WITH THE FOLLOWING:
a.May be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness
b. Deposition of a party or any one who at the time of the taking was an
officer, director, or managing agent of a public/private corporation
partnership/association which is a party may be used by an adverse party
for any purpose
c. Deposition of a witness, party or not, may be used by any party for any
purpose if the court finds that: (1) witness is dead (2)witness resides
more than 100 kilometers from the place of trial/hearing or is out of the
Philippines UNLESS, it appears that his absence is procured by the party
offering the deposition (3) witness is unable to attend/testify because of
age, sickness, infirmity or imprisonment (4) party offering the deposition
has been unable to procure the attendance of the witness by subpoena (5)
upon application and notice, 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 witness in open court, to allow the
deposition to be used.
d. If only a part of the deposition is offered in evidence by a party, the
adverse party may require him to introduce all of which is relevant to the
part introduced, and any party may introduce the other parts.373
WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN
CAN IT BE USED AS EVIDENCE
1.If the deponent is a party, the opposing party can use it to prove his
claim or defense. It may also be used to impeach or contradict the party
deponent if he testifies.
2. If the deponent is only a witness, his deposition can only be used to
impeach/contradict him if he testifies BUT if Paragraph (c ) of Section 4
applies, it can be used for any purpose.
WHEN DEPOSITIONS ARE PRESENTED CAN THEY BE
OBJECTED TO- WHEN
Subject to the provisions of Section 29, 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.
1. As to notice are waived unless written objection is promptly served
upon the party giving the notice
2. As to disqualification of the officer is waived unless make before the
taking of the deposition or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.

67
3. As to competency relevancy of evidence objections as to competency

of the witness or competence, relevancy or materiality of the
evidence/testimony are not waived by the failure to make them before
or during the taking of the deposition UNLESS the ground of the
objection is one which a right have been OBVIATED or REMOVED IF
PRESENTED AT THAT TIME
4. As to oral examination and other particulars Errors and irregularities
occurring at the oral examination in the manner of taking, the form of the
questions and answers, in the oath/affirmation, or the conduct of the
parties and errors of any kind which might be obviated, removed or cured
it promptly, prosecuted, are WAIVED, unless reasonable objection
thereto is made at the taking of the deposition.
5. As to from of written interrogatories objections are waived unless
served in writing upon party propounding them within the time allowed
for the serving of succeeding cross or other interrogatories and within 3
days after service of the last interrogatory authorized.
6. As to manner of preparation objections as to the 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 part thereof
is made with reasonable promptness after such defect is, or with due
diligence, might have been ascertained.374
HOW IS A DEPOSITION ACTUALLY USED AND ONCE A
DEPOSITION HAS BEEN USED, WHAT CAN ADVERSE/ OTHER
PARTIES DO
1. Generally, the deponent is called to testify. Hence he may be
examined/cross-examined as permitted at the trial under Sections 3 to 18,
Rule 132.375
2. At the trial or hearing, any party may rebut any relevant evidence
contained in a deposition whether introduced by him or by any other
party.376 This is called rebutting a deposition.
IS USE OF THE DEPOSITION LIMITED
ACTION/PENDING ACTION WHEN IT WAS TAKEN
TO
THE
No, because substitution of parties does not affect the right to use
depositions previously taken, when the action is 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 therefor.377
RULE 26 REQUESTS FOR ADMISSIONS
WHAT IS A REQUEST FOR ADMISSION
It is a written request for the (1) admission of the genuiness of any
material and relevant document described in and exhibited with the

68
request or (2) the truth of any material or relevant matter of fact set forth
in the request. A party may file and serve a request for admission upon
any other party at any time after the issues have been joined.378
EFFECT OF FILING AND SERVICE UPON ANY OTHER PARTY
Each of the matters of which an admission is requested shall be deemed
admitted UNLESS, within a period designated in the request, which shall
not be less than 15 days after service thereof or such period which the
Court will allow on motion, the party served files and serves upon the
requesting party a sworn statement, either denying specifically the
matters is setting forth in detail the reason why he cannot truthfully either
admit / deny.
Objections if any shall be submitted to the Court within the period for
complying and prior to filing of the Sworn Statement compliance is
then deferred until objections are resolved which should be done as early
as practicable.379
EFFECT OF ADMISSIONS
It is for the purpose of the pending action only and shall not constitute an
admission by him for any purpose or used against him in any other
proceeding380
THOUGH any admission, express or implied may be allowed by the
court to be withdrawn or amended upon such terms as may be just.381
EFFECT OF FAILURE TO SERVE
Unless otherwise allowed by the Court for good cause and to prevent
failure of justice, a party who fails to serve a request for admission of
material / relevant facts at issue on the adverse party, which are or ought
to be within the latters personal knowledge, shall not be permitted to
present evidence on such facts.382
RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS
ON THINGS
HOW
On motion of any party showing GOOD CAUSE, the COURT where the
action is pending MAY ORDER, specifying the time, place and manner
AND prescribing such terms and conditions as are just:
1.Any party to produce and permit the inspection, copying,
photographing, by or on behalf of a having party of any designated
DOCUMENT, PAPERS,
BOOKS, ACCOUNTS,
LETTERS,
PHOTOGRAPHS, OBJECTS OR TANGIBLE THINGS NOT
PRIVILEGED which CONSTITUTE OR CONTAIN EVIDENCE
MATERIAL TO ANY MATTER INVOLVED IN THE ACTION which
are in his possession and control, OR
2. Permit entry upon designated land or other property in his possession /
control for the purpose of INSPECTING, MEASURING, SURVEYING,

69
TAKING PHOTOGRAPHS of the property or any designated

RELEVANT OBJECT or OPERATION thereon.383
RESORTED TO DETERMINE
PRESERVATION OF THE SAME.
CONTENTS,
STATUS
OR
RULE 28 PHYSICAL / MENTAL EXAMINATION OF PERSONS

WHEN AVAILED OF
In an action in which the MENTAL / PHYSICAL condition of a party is
in controversy, a court in its discretion, can order him to submit to
physical / mental examination by a physician.384
1.It can be ordered ONLY upon motion for good cause shown, with
NOTICE to the party to be examined and to all other parties, specifying
the time, place, manner, condition and scope of the examination and
person/s by whom it is to be made.385
2.ONCE EXAMINATION IS COMPLETED, the party examined may
request that a detailed written report of the examining physician setting
forth his findings / conclusions.
2.1
If requested and delivered, the party causing examination to be
made is entitled to request and receive from examined party a like report
of the same mental / physical examination / condition PREVIOUSLY OR
THEREAFTER MADE.
2.2
If request is refused, the court on motion may order delivery by
the party examined on such terms as are just. If the physician fails /
refuses to make such report, his testimony may be excluded if his
testimony is offered at trial. 386
2.3NOTE a WAIVER OF PRIVILEGE that is caused by requesting and
obtaining a report of the examination ordered or by taking the deposition
of the examiner, party examined WAIVES ANY PRIVILEGE he may
have in that action or any other involving the same controversy regarding
the testimony of every other person who has examined or may thereafter
examine him in respect of the same mental / physical examination. 387
This refers primarily to the privilege between doctor and patient.
RULE 29 REFUSAL TO COMPLY WITH MODES OF
DISCOVERY
1. If he refuses to answer upon being directed to do so or refuses to be
sworn, it will constitute CONTEMPT OF COURT. A citation in contempt
shall ensue after the following steps have been followed or observed:
a. If the party/deponent refuses to answer any question upon oral
examination, the deposition may be completed on other matters or
adjourned as the proponent may prefer.
b. The proponent may then apply for an order to compel an answer in the
proper court where the deposition is being taken. This is also applicable
to interrogatories.

70
c. If granted, the court can order that answer be made and if it finds that
refusal is without substantial justification it may impose upon deponent
/ counsel advising that no answer be given or both reasonable expenses
and attorneys fees in obtaining the order. If denied and the court finds
application was filed without substantial justification proponent / counsel
advising application or both may in the same manner be sanctioned.388
2. Other consequences (applicable to Sec 1, Rule 29, Rule 27 and Rule
28) the Court may issue an:
a. order that the matters regarding which the questions are asked,
character / description of thing or land / contents of a paper or physical /
mental condition of a party shall be taken to be established in accordance
with the claim of the party obtaining the order.
b. order refusing to allow the disobedient party to support / oppose
designated claims / defenses or prohibiting him from introducing in
evidence the designated things / documents or items of testimony or from
introducing evidence of physical / mental condition.
c. order striking out pleadings or parts thereof or staying proceedings
until the order is obeyed, dismissing the action or proceeding or any part
thereof, or rendering judgment by default against the disobedient party.
d. In lieu or in addition to orders, the disobedient party can be ordered
arrested except in relation to a physical / mental examination.389
OTHER SANCTIONS
1.Expenses on refusal to admit if requested party serves a sworn denial
and party serving request proves genuineness / truth, he may apply for an
order directing the requested party to pay expenses incurred in making
proof plus attorneys fees. Order is issued except if court finds good
reasons for denial or admissions were of no substantial importance. 390
2.Failure of a party to willfully appear before the officer taking the
deposition, after being served with a proper notice, or fails to serve
answers to written interrogatories properly served, court may on motion
and notice: (a)Strike out all or any part of the pleading of that party (b)
Dismiss the action / proceeding / part thereof (c) Enter judgment by
default against that party, (d) and ,in its discretion, order payment of
reasonable expenses and attorneys fees391 BUT no expenses or fees are
to be assessed against the Republic of the Philippines. 392
RULE 30 TRIAL
NOTICE OF TRIAL
Upon entry of a case in the trial calendar the clerk shall notify the
parties of the date of the trial in such manner as to ensure receipt of the
notice at least 5 days before such date.393

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MAY TRIAL BE POSTPONED / ADJOURNED

Courts may adjourn a trial from day to day, and to any stated time as
the expeditious and convenient transaction of business may require but
it shall have no power to adjourn for a longer period than one month for
each adjournment, nor more than three months in all, except when
authorized in writing by the Court Administrator of the Supreme Court.394
IF MOTION TO POSTPONE IS DUE TO ABSENCE OF EVIDENCE
Can only be granted upon affidavit showing the materiality / relevancy of
the evidence and that due diligence has been used to procure it, BUT, if
the adverse party admits the facts to be given in evidence, or even if he
objects or reserves the right to object to their admissibility, the trial shall
not be postponed.395
IF DUE TO ILLNESS OF PARTY OR COUNSEL
May be granted, if it appears upon affidavit or sworn certification that
the presence of party / counsel at the trial is indispensable and that
character of illness is such as to render non-appearance excusable.396
WHAT IS THE ORDER OF TRIAL
Subject to Section 2, Rule 31 on separate trials and unless the court
orders for special reasons, it shall be limited to the issues stated in the
pre-trial order and shall proceed as follows:
1.Plaintiff adduces evidence in support of his complaint
2. Defendant adduces evidence in support of his defense, counterclaim,
crossclaim and 3rd party complaint
3. Third party defendant, if any, shall adduce evidence of his defense,
counterclaim, crossclaim and 4th party complaint.
4. Fourth party, and so forth, if any, shall adduce evidence of the material
facts pleaded by them.
5. Parties against whom any counterclaim/crossclaim has been pleaded
shall adduce evidence in support of their defense, in the order prescribed
by the Court.
6. The parties may then respectively adduce rebutting evidence, unless
the Court, for good reasons and in the furtherance of justice, permits
them to adduce evidence upon their original case.
7. Upon admission of the evidence, the case shall be deemed submitted
for decision, unless the court directs the parties to argue or submit
memoranda or any further pleadings.
If several defendants or 3rd party defendants and so forth, having separate
defenses appear by different counsel, the court shall determine the
relative order of presentation of their evidence.397
MAY THERE BE AN AGREEMENT UPON THE FACTS AND
SUBMISSION OF THE CASE FOR JUDGMENT WITHOUT
INTRODUCTION OF EVIDENCE

72
Yes, provided it be in writing. If the parties agree only on some facts,

trial shall be held as to the disputed facts 398 BUT, no judgment based on
stipulation of facts is allowed in legal separation, annulment of marriage
and declaration of nullity. NOTE: that in the same cases, neither is there
judgment by default, judgment on the pleadings, summary judgment,
judgment upon confession, judgment upon compromise, judgment based
on stipulation of facts.
WHAT ARE TO BE MADE OF RECORD
All proceedings, including any statement made by the judge with
reference to the case, or to any of the parties, witnesses or counsel shall
be made of record in the stenographic notes.399
WHO IS TO RECEIVE EVIDENCE
The judge is required to personally receive the evidence. But in default /
ex-parte or when parties agree in writing it may be delegated to the clerk
of court who is member of the bar though he has no power to resolve
objections to any question or admission of exhibits . Such shall be
resolved by the court upon submission of his report and transcripts within
10 days from termination of the hearing.400
CAN ACTIONS BE SUSPENDED
Actions may be suspended as governed by the provisions of the Civil
Code401: (a)if willingness to discuss a compromise is expressed by one or
both parties (b)if it appears that one of the parties, before the
commencement of an action / proceeding, offered to discuss a possible
compromise but the other party refused the offer.402
RULE 31 CONSOLIDATION OR SEVERANCE
WHEN CAN CONSOLIDATION TAKE PLACE?
When actions involving a common question of law or fact are pending
before the court, it may order joint hearing or trial of any or all the
matters in issue in the actions, it may order all actions consolidated. Then
it may make such orders concerning proceedings therein as may tend to
avoid unnecessary costs / delay403
MAY THERE BE CONSOLIDATION ALTHOUGH ACTIONS ARE
PENDING IN DIFFERENT COURTS
Yes, involving the consolidation of civil action WITH criminal action, if
filed before criminal action and trial has not yet commenced.404
PURPOSE OF ALLOWING CONSOLIDATION
The purpose of allowing consolidation is to avoid multiplicity of suits,
guard against oppression or abuse, prevent delay, clearing of dockets,
simplify the work of trial court, save unnecessary expenses / costs.

402 Civil Code, Article 2030
404 Section 1, Rule 111 of the Rules on Criminal Procedure
73
1.NOTE though that if actions involve a common question of law or fact

because they arise from a single cause of action between the same
parties, the remedy is dismissal on litis pendentia, not consolidation.
WHEN CAN SEPARATION TAKE PLACE AND WHAT DOES IT
COVER
Covers any claim, cross-claim, counterclaim or third party claim or any
separate issue or of any number of claims, cross-claims, counter claims,
third party complaints, or issues in furtherance of convenience or to
avoid prejudice.405
RULE 32 TRIAL BY COMMISSIONER
WHEN RESORTED TO
Trial by commissioners may be resorted to upon order of the court, which
will then refer any or all issues when: (a)Parties agree in writing and the
commissioner may either be agreed upon or appointed by the Court (b)
When parties do not consent, on courts own motion or upon application
of either party, if may be directed in the following: (1)Trial of an issue of
fact requires examination of a long account (2)
The taking of an
account is necessary for the information of the court before judgment or
for carrying judgment / or order into effect (3)A question of fact, other
than upon the pleadings arises upon motion or otherwise, in any stage of
the case, or for carrying a judgment or order into effect.406
1.The term commissioner may include a referee, an auditor or
examiner407
2.A commissioner is designated or authorized by an ORDER OF
REFERENCE which will specify or limit his powers, direct him to
report only on or upon particular issues or do or perform particular acts,
receive or report evidence only and fix date for beginning / closing
hearings and for the filing of the report.
2.1
He shall then have and exercise the power to: (a)Regulate the
proceeding before him (b)Do all acts and take all measures necessary or
proper for the efficient performance of his duties upon the order (c)Issue
subpoenas (d)
Swear witnesses (e)Unless otherwise provided, rule
upon the admissibility of evidence408
3.THE TRIAL / HEARING SHALL PROCEED IN ALL RESPECTS AS
IT WOULD BE HELD IN COURT.
PROCEDURE
1. Commissioner takes oath and be sworn to a faithful and honest
performance of his duties409
2.Upon receipt of the Order of Reference, and unless otherwise stipulated
he shall forthwith set a time and place for the first meeting of the parties
and counsel within 10 days after the date of the order of reference, and
shall notify parties / counsel410

74
3.If parties / counsel fail to appear, he may proceed ex-parte or in his

discretion, adjourn the proceedings, giving notice to the absent party or
counsel of the adjournment411
4.He shall avoid delay as he is duty bound to proceed with all reasonable
diligence. Either party on notice to other parties and the commissioner
may apply for a court order to expedite proceedings / report412
5.If witness refuses to obey a subpoena or give evidence. It shall
constitute contempt of the appointing court 413
6.Upon completion of trial / hearing / proceeding he shall file with the
court has report in writing upon the matters submitted to him by the order
of reference. When powers are not specified or limited, he shall set forth
his findings of fact and conclusions of law in his report. He shall also
attach all exhibits, affidavits, depositions, paper and transcripts of the
testimonial evidence given414
7.Notice is then given by the clerk to the parties of the filing of the
report, they shall then be allowed 10 days within which to signify
objections to the findings in the report, is so desired.
7.1
NOTE: Objections to the report based on grounds available to
the parties during the proceedings before the commissioner, other than as
to the findings / conclusions, shall not be considered unless made before
the commissioner.415
8.Upon expiration of the period, the report shall be set for hearing, after
which the court shall issue an order adopting, modifying, or rejecting
the report in whole or in part or recommitting it with instructions or
requiring the parties to present further evidence to the commissioner416
9.If the parties stipulate that the commissioners findings of facts shall be
final, only questions of law shall be thereafter considered. 417
9.1Note that the findings of the commissioner are merely advisory and
are not absolutely binding upon the court.418
EXPENSES / COMPENSATION
They shall be reasonable as warranted by the circumstances and are to be
taxed as costs against the defeated party or apportioned as justice
requires419
WHEN REFERENCE TO COMMISSIONERS IS REQUIRED BY THE
RULES
Reference to commissioners is required in the following cases:
(a)Expropriation under Rule 67 to determine just compensation

418 Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553
75
(b)Partition under Rule 69, when parties cannot agree as to the manner of
partition.
RULE 33 DEMURRER TO THE EVIDENCE
WHO FILES AND WHEN FILED
The defendant is the party who may move for the dismissal of the action
after presentation by the plaintiff of evidence ON THE GROUND that
upon the facts and the law, plaintiff has shown no right to relief.420
EFFECTS OF FILING AND RESOLUTION
1.If granted, the action is dismissed, BUT if appealed and reversed, he
loses his right to prevent evidence and judgment is rendered in favor of
the plaintiff421
1.1An order dismissing a case for insufficiency of evidence is a judgment
on the merits, it is imperative that it be a reasoned decision and distinctly
stating therein the facts and the law on which it is based.422
2.If denied, defendant may present his evidence as it does not constitute
a waiver of right to do so.
3. It is an error on the part of the Court of Appeals to order REMAND, if
dismissal is elevated to it on appeal, it must decide on the evidence
adduced by the plaintiff.423
DISTINGUISHED FROM CRIMINAL CASES
(a) In both civil and criminal actions, the basis for both is the
insufficiency of evidence. (b) In a civil action, dismissal by demurrer is
by motion only, while in a criminal action, dismissal by demurrer is upon
the courts initiative or motion giving the prosecution an opportunityto be
heard. (c) In a civil action, leave is not required prior to filing, while in a
criminal action leave may / may not be obtained. If obtained no
waiver of right to present evidence if
denied and if there is no
leave, it is a waiver (d) In a civil action, if granted, plaintiffs remedy is
appeal, while in a criminal action, if granted, there is no appeal as such
will constitute double jeopardy.
RULE 34 JUDGMENT ON THE PLEADINGS
JUDGMENT ON THE PLEADINGS
Can be had if the ANSWER fails to tender an issue or otherwise admits
the material allegations of the complaint 424
1.There is no MOTU PROPIO RENDITION OF JUDGMENT as it is
always by motion.

421 Quebral v Court of Appeals, 252 SCRA 353
422 Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127
423 Radiowealth Finance Company v Del Rosario, 335 SCRA 288
76
2. An answer fails to tender an issue when it fails to comply with the

requirements of specific denial or is deemed to have admitted the
allegations in the complaint425
3.An answer admits the material allegations when it expressly confesses
the truthfulness thereof or where it omits to deal with them all.
4. NOTE that when an answer raises factual issues involving damages, it
is not proper to render judgment on the pleadings as presentation of
evidence is required.
WHO MAY MOVE FOR JUDGMENT ON THE PLEADINGS
Only the plaintiff in original complaint, or of the counter-claim, or of the
cross claim, or of the third party complaint may so move for judgment on
the pleadings.
WHEN NOT ALLOWED
Judgment on the pleadings is not allowed in cases of: (a)Declaration of
nullity of marriage (b)
Annulment of marriage (c)Legal separation.
In these cases, the plaintiff is required to prove the material facts
regardless of whether the answer tenders an issue.
RULE 35 SUMMARY JUDGMENT
WHAT IS SUMMARY JUDGMENT
Is a devise for weeding out sham claims or defenses at an early stage of
the litigation thereby avoiding the expense / loss of time involved in a
trial. Its very object is to separate what is formal or pretended in denial or
averment from what is genuine and substantial so that only the latter may
subject a suitor to the burden of trial.
1. This is also known as ACCELERATED JUDGMENT426
WHO MAY MOVE FOR SUMMARY JUDGMENT AND WHEN
Either plaintiff or defendant may move for a summary judgment:
1.If plaintiff or claimant (of original complaint / counterclaim / crossclaim), he may file the motion at any time after the pleading in answer to
his claim has been filed on the ground that although there is an apparent
issue, the same is SHAM / FALSE 427 .Example: Answer admits
obligation but states that the amount is wrong or less than that claimed. If
plaintiff has proof that there is written acknowledgment that as of a date
or period prior to that of the filing, the defendant was aware of the true
amount, there can be summary judgment.
2.If movant is the defending party, he may file the motion at any time
before or after he files his answer on the ground that plaintiffs claim
against him is SHAM or FALSE 428
3.An issue is sham or false if it is not genuine. GENUINE means that the
issue of fact is one that calls for the presentation of evidence.429
425 Supra, Sections 8,9 and 11, Rule 8

426 Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738
429 Excelsa Industries v Court of Appeals, 247 SCRA 560
77
4.In either case, the motion must be filed along with supporting
affidavits, depositions or admissions.
5. The PROCEDURE for the filing and resolution of a motion for
summary judgment is as follows:
1. Plaintiff/Defendant serves on the defendant/plaintiff a copy of the
motion at least 10 days before the date of hearing specified in the motion.
2. The defendant/plaintiff MAY serve opposing affidavits, depositions or
admissions at least 3 days before the date of the hearing.
3. Court hears the motion.
4. If after hearing, it finds that the motion filed by PLAINTIFF justified,
thus there is no genuine issue as to any material fact, it will render
summary judgment for the plaintiff. If not, it will deny, set the case for
pre-trial, then trial. If filed by the defendant and is justified, the
complaint is dismissed, otherwise the case proceeds with the filing of
answer or pre-trial is set and conducted.
FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS
1. They shall be made on personal knowledge, setting forth such facts as
would be admissible in evidence and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. Certified
copies of all papers / parts thereof shall be attached and served
therewith.430
2.If affidavits have been determined to the satisfaction of the court that
they are presented in bad faith or solely for the purpose of delay, the
Court may forthwith order the offending party to pay reasonable
expenses which may have been incurred by the other party, including
attorneys fees. It may also find / adjudge, after hearing, that attending
party / counsel are guilty of contempt.431
EFFECT OF THE RENDITION OF SUMMARY JUDGMENT
1.The aggrieved party may appeal the summary judgment as such is final
judgment as defined by Section 1, Rule 41.
2. IF DENIED, it is not appealable as order of denial of motion is
interlocutory THOUGH certiorari may lie if the rendering of a summary
judgment is clear, plain and patent but the court refuses or declines to
render it.
WHEN CAN THERE BE A PARTIAL SUMMARY JUDGMENT
When the Court finds that a judgment cannot be rendered upon the whole
case or for all the reliefs because there are controverted facts which
require trial. A PARTIAL SUMMARY JUDGMENT is not appealable
and shall be taken together with the judgment that a trial court will render
after trial. Thus it cannot be executed.432
DISTINGUISHED FROM JUDGMENT ON THE PLEADINGS
(a) A Judgment on the Pleadings is available when there is no genuine
issue as answer fails to tender an issue or otherwise admits material

78
allegations, while Summary Judgment is available when there is an

apparent issue but is a sham, fictitious or false (b) A Judgment on the
Pleadings is based exclusively on the pleadings (complaint / answer),
while Summary Judgment is based not only on pleadings but also on
affidavits, depositions and admissions, showing that except as to
damages there is no genuine issue (c) A Judgment on the Pleadings can
be filed only after an answer has been filed, while in Summary Judgment,
there may or may not be an answer (d) A Judgment on the Pleadings can
only be had by the plaintiff, while in Summary Judgment, either plaintiff
or defendant may move for it (e) a motion for Judgment on the Pleadings
is required to be served on adverse party at least 3 days prior to the
hearing, while a motion for Summary Judgment requires service at least
10 days prior to the hearing
1. Judgment on the Pleadings is a judgment on facts as pleaded, Summary
Judgment is a judgment as summarily proven by affidavits, depositions,
admissions. If an answer tenders an issue, there can be no Judgment on
the Pleadings but there can be Summary Judgment, if issue/s is later
shown to be false, sham or fictitious.
RULE 36 JUDGMENTS, FINAL ORDERS, AND ENTRY
THEREOF
REQUISITES OF A JUDGMENT/FINAL ORDER
The requisites of a judgment or final order are: (1) It must be in writing
(2) It must be personally and directly prepared by the judge (3)It
must
state clearly and distinctly the facts and the law on which it is based (4) It
must be signed by the judge (5) It must be filed with the clerk of court.433
1.NOTE that a judge who has been reassigned can pen a decision as long
he is still an incumbent judge.434
WHEN IS JUDGMENT RENDERED
Ordinarily after trial, except in judgment on the pleadings, summary
judgment, judgment by compromise, judgment based on stipulation of
facts, judgment upon confession, order of dismissal in instances when it
considered as an adjudication on the merits, judgment in cases covered
by the Rules of Summary Procedure.
1.It is the filing of the judgment or final order with the clerk of court that
constitutes RENDITION OF JUDGMENT, not the date of the writing of
the decision or judgment, nor the signing thereof or even promulgation
thereof.435
2.A MEMORANDUM DECISION is one which adopts by references
findings of facts and conclusions of law contained in the decision of an
inferior tribunal. Note that this does not violate the rule as to statement of
the facts and law. This kind of a decision can only be rendered by an
appellate court.
3. A SIN PERJUICIO JUDGMENT is one which is without a statement
of facts and is to be supplemented later by the final judgment. Such a
judgment is void.
DUTY OF THE CLERK OF COURT WHEN JUDGMENT BECOMES
FINAL

434 ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
435 Castro v Malazo, 99 SCRA 164
79
If no appeal or motion for reconsideration or new trial is brought within

the time provided, the judgment / final order shall forthwith be entered
by the clerk in the BOOK OF ENTRIES OF JUDGMENT. The date of
finality shall be deemed the date of entry and shall contain the dispositive
portion and signed by the clerk which a certificate that such judgment /
final order has become final and executory.436
1.Note that date of entry retroacts to date of finality. Hence, both occur
simultaneously by operation of law.
2. JUDGMENTS THAT ARE FINAL AND EXECUTORY CAN BE
CORRECTED but limited only to NUNC PRO TUNC amendments or
those that are merely clerical or typographical.
3. Correction or amendment is also allowed if purpose is to clarify an
ambiguity caused by an omission or mistake, judgment / final order.
4. A COMPROMISE after finality of a judgment is allowed. The basis of
the allowance is the principle of novation, which is a mode of
extinguishing an obligation.437
Pet for extraordinary relief- GR 167651, San Pablo vs. marina May 10,
2005
JUDGMENTS MAY BE
1.Given for or against one or more several plaintiffs or for or against one
or more several defendants. Courts, when justice demands require parties
on each side to file adversary proceedings as between themselves to
determine their ultimate rights / obligations.438
2.In an action against several defendants, the courts if proper may render
judgment against one or more, leaving the action to proceed against the
others.439 Example: Judgment against a surety for admitted liability.
3.Separate judgments may be rendered when more than one claim for
relief is presented, the court at any stage upon determination of the
issues material to a particular claim and all counter claims arising
therefrom may render a separate judgment disposing of the claim and
proceeding with the others. BUT, it may stay execution or enforcement
until rendition of subsequent judgment/s and may prescribe such
conditions to secure benefit thereof to the party in whose favor the
judgment is rendered.440 Example: It may occur when causes of action
have been joined
4.Judgment against entity without juridical personality it shall set forth
the individual names / proper names if known of persons composing it.441
RULE 37 NEW TRIAL OR RECONSIDERATION

WHEN FILED

437 Magbanua v. Uy, 458 SCRA 185
80
A motion for new trial or reconsideration may be filed within the period
for taking an appeal.442
GROUNDS FOR A MOTION FOR NEW TRIAL
1. Fraud, Accident, Mistake, Excusable Negligence which ordinary
prudence could not have guarded against and by reason of which the
aggrieved party was probably impaired in his rights.
1.1
Fraud should be extrinsic or collateral, which refers to such acts
that prevents a party from having a trial / presenting his case in court. It
refers to all kinds of deceptions, whether through insidious machination,
manipulation or concealment or misrepresentation that leads another
party to error.443 Examples are: false promise to compromise or
connivance of lawyer with adverse party. This does not include
INTRINSIC FRAUD or acts of a party at trial that prevents fair
determination. Examples are: perjury, falsification.
1.2Accident is a fortuitous event, circumstance, or happening; an event
happening without any human agency or if happening wholly or partly
through human agency, is an event which under the circumstances is
unusual or unexpected by the person to whom it happens. 444 sickness of
a party, lack of notice when sent to other address.
1.3Mistake refers to some unintentional act, omission, or error arising
from ignorance, surprise, imposition, or misplaced confidence. It pertains
generally to mistake of fact, not of law.445 failure to answer / act because
he believed it unnecessary because of a compromise or other document.
1.4Excusable 446Negligence is an excusable omission to do something
which a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affiants, would do; or the reasonable
doing of something which a prudent or reasonable man would not do.
failure is really that of the party or counsel non submission on time
because of distance traveled.
2. Newly Discovered Evidence, which the aggrieved party could not with
reasonable diligence, have discovered or produced at the trial and which
would probably alter the result.
2.1
Hence, the requisites are: (a)Evidence is discovered after trial
(b)Such could not have been discovered and produced at the trial with
reasonable diligence (c) Evidence is material NOT cumulative,
corroborative, or impeaching, and is of such weight that, if admitted,
could probably change the judgment.447
GROUNDS FOR MOTION FOR RECONSIDERATION
The grounds for a motion for reconsideration are: (a)Award of excessive
damages (b)
Insufficiency of evidence to justify the decision or final
order (c) Decision / final order is contrary to law
HOW FILED / CONTENTS

443 Maestrado v Court of Appeals, 327 SCRA 678
444 Jarco Marketing v Court of Appeals, 321 SCRA 375
445 Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
446 Mckee v Intermediate Appellate Court, 211 SCRA 517
447 Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273
81
It shall be made in writing stating the ground/s, written notice of which

shall be served by the movant on the adverse party.
1. If the Motion for New Trial is based on Fraud, Accident, Mistake or
Excusable Negligence, it should be supported by affidavits of merit,
which may be rebutted by affidavits. The requirement of an affidavit is
essential because obviously a new trial would be a waste of the courts
time if the complaint turns out to be groundless or the defense
ineffective.448
2.If based on NEWLY DISCOVERED EVIDENCE it should be
supported by affidavits of the witnesses by whom such evidence is
expected to be given or by duly authenticated documents which are
proposed to be introduced as evidence.
3. If MOTION FOR RECONSIDERATION, it should point out
specifically the finding / conclusions which are not supported by the
evidence / contrary to law, making express reference to testimonial /
documentary evidence or provisions alleged to be contrary to such
findings or conclusions.
3.1
IF NOT, the motion is considered a PRO FORMA MOTION. It
does not toll the reglementary period of appeal. 449 Note also that such a
motion without notice of hearing and proof of service has the same
effect450
IF A MOTION FOR NEW TRIAL IS FILED, WHAT ENSUES
Court may either deny or set aside the judgment or final order and grant a
new trial451
1.IF denied, another motion be filed, if it is based on a ground NOT
EXISTING NOR AVAILABLE when the first motion has filed. 452 Note
that a motion for new trial is an omnibus motion, thus it should include
all grounds then available as those not included are deemed waived.
2.IF granted, the effects are (a) original order / judgment is vacated (b)
the action shall stand trial de novo (c) recorded evidence, insofar as
material or competent to establish the issues, shall be used at the new
trial without need to retake therein453
IF MOTION FOR RECONSIDERATION IS FILED WHAT ENSUES
Court may deny or amend its judgment / final order if it finds that
excessive damages are awarded, or that it is contrary to the evidence or
the law454
1.If denied no second motion for reconsideration is allowed of the
judgment or final order. NOTE THOUGH that if the subject is not a
judgment / final order or is an interlocutory order which does not dispose
of a case completely but leaves something more to be done upon its
merits, a 2nd motion for reconsideration may be allowed.
448 Yap v Tanada, 163 SCRA 464

449 Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39 SCRA 552
450 Firme v Reyes, 92 SCRA 713
82
2. The filing of a second motion for reconsideration is a prohibited

pleading. Thus it does not toll the running of the reglementary period of
appeal.455
OTHERS
1.The periods for resolving the motions are: (a) MTC / RTC within 30
days from the time it is submitted for resolution 456 (b) Court of Appealswithin 60 days after if declares it submitted for resolution (c) Supreme
Court- no period is prescribed
2.THE DENIAL OF BOTH MOTIONS IS NOT APPEALABLE, IT IS
THE JUDGMENT / FINAL ORDER THAT IS APPEALABLE.457
RULE 38 RELIEF FROM JUDGMENT, ORDERS OR OTHER
PROCEEDINGS
GROUNDS UPON WHICH IT IS TO BE BASED
Judgment / final order is entered, or proceeding is thereafter taken against
him through FRAUD, ACCIDENT, MISTAKE, EXCUSABLE
NEGLIGENCE. This means that the FAILURE TO ACT ON
JUDGMENT / FINAL ORDER / PROCEEDING ARE DUE TO Fraud,
Accident, Mistake or Excusable Negligence. This also applies to a failure
to take an appeal is due.
1.The object to the petition is that the judgment, order, or proceeding be
set aside or that the appeal be given due course.
2. The petition must be VERIFIED.458
3.The other ways by which a final and executory judgment may be set
aside is by Petition for Certiorari under Rule 65 and Rule 46 and by
Annulment of Judgment under Rule 47.459
4.The petition is premised on equity. It should therefore be granted only
in exceptional cases. Petitioner must be able to prove fraud, accident,
mistake or excusable negligence and the existence of a good and
substantial cause of action or defense, as the case may be.460
5.It cannot be availed of if there is another remedy in law 461and is
available only against a final and executory judgment.462
6.Note though that is the case is covered by the Rules on Summary
Procedure, a petition for relief is a prohibited pleading.463
WHEN AND WHERE FILED
455 Hongria v Hongria-Juarde, 425 SCRA 504

457 Barnes v Reyes, 411 SCRA 538
459 Arcelona v Court of Appeals, 280 SCRA 20
460 Torno v Intermediate Appellate Court, 166 SCRA 742
461 Alquesa v Cavada, Jr. 3 SCRA 428
462 Valencia v Court of Appeals, 352 SCRA 72
463 Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214
83
1.It is to be filed within 60 days after he learns of the judgment final

order / proceeding but not more than 6 month after such judgment / final
order was entered or such proceeding taken.464
1.1A few days after expiration of the 60 day period is not entirely fatal as
long as it is still filed within the 6 months period.465
1.2But if it is a judgment by compromise, the 6 months period runs from
date of rendition, because a judgment upon a compromise is immediately
executory and considered to have been entered on the date it was
approved by the trial court.466
1.3The 6 months period is reckoned from entry of judgment or final
order, not from its rendition or finality467while from learning means
from notice of judgment or final order468
2.It is to be filed in the same case and in the same court where the
judgment / final order was entered or where proceeding is taken.
PROCEDURE
1. Filing of verified petition accompanied by affidavits showing FAME
and the facts showing the petitioners good and substantial cause of
action or defense, as the case may be (grounds constituting his cause of
action / defense)
2. Order issued requiring adverse party to answer within 15 days from
receipt469 and if warranted a writ of preliminary Injunction may be
issued.470
3.Adverse party answers, but if he does not, he cannot be declared in
default.
4. Court hears and may grant relief if the allegations are true or deny if
not true.
4.1
If granted, the assailed final order / judgment / proceeding is set
aside and proceedings taken as if a timely motion for new trial has been
granted.471 There are in effect two hearings: the first is as to the merits of
the petition, the second is as the merits of the principal case.
4.2If denied, the order is not appealable472 but
certiorari under Rule 65
may be subject of
5.Court hears the case as if a timely motion for new trial or

reconsideration has granted. If the subject is denial of an appeal, the
lower court shall be required to give due course to the appeal and elevate
the records as if a timely and proper appeal has been made.473
6.Judgment is rendered and is appealable

465 Mago v Court of Appeals, 303 SCRA 600
466 Manipor v Ricafort, 407 SCRA 298
467 Bayog v Natino, 258 SCRA 378
468 Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379
472 Supra, Section 1(b), Rule 41
84
DISTINGUISHED FROM A MOTION FOR NEW TRIAL

They are distinguished as follows: (a) a motion for new trial is filed
before judgment becomes final, while a petition for relies if filed after a
judgment becomes final (b) a motion for new trial applies to judgments /
final
orders, while a petition for relief includes proceedings (c) the
grounds for a motion for new trial includes newly discovered evidence,
while a petition for relief is limited to FAME (d) a motion for new trial is
filed within the period for perfecting an appeal, while a petition for relief
is filed within 60 days from knowledge but within 6 months from entry
of judgment (e) a motion for new trial if denied allows an appeal, while a
petition for relief from judgment does not allow an appeal (f) a motion
for new trial is a legal remedy, while a petition for relief is a remedy in
equity (g) a motion for new trial requires no verification, while a petition
for relief needs to be verified.
RULE 39 EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENTS
TWO KINDS OF EXECUTION
1.
COMPULSORY is one which issues as a matter of right, or
motion, upon a judgment or order that disposes of the action or
proceeding UPON EXPIRATION of the period to appeal, if no appeal is
taken therefrom / is perfected. It also issues when appeal is duly
perfected and finally resolved.
a. It may be applied for in the court of origin, on motion of judgment
obligee submitting certified true copies of the judgment / final orders /
orders sought to be enforced and ENTRY thereof, with notice to the
adverse party. There is no need for return of records.
b. It may also be applied for in the appellate court, on motion in the same
case, when the interest of justice so requires, direct the court of origin to
issue the writ of execution in the event of the refusal of the court of
origin to issue the writ. 474
c.A motion is required as there may be questions / disputes as to finality
or amounts to be stated in the writ.
2.
DISCRETIONARY is one that is issued, on motion, of the
prevailing party for good reasons. This is also known as EXECUTION
PENDING APPEAL / EXCEPTIONAL EXECUTION 475
a.It is filed in the trial court while it has jurisdiction over the case and is
in possession of either the original record or the record on appeal, as the
case may be, at the time of the filing of the motion. 476 The COURT, may
in its discretion, order execution of judgment / final order even before the
expiration of the period to appeal. If the trial court has lost jurisdiction, it
is to be filed with the appellate court.
a.1A court LOSES JURISDICTION when there is perfected appeal and
the period to appeal has expired. When a record on appeal is required, it
loses jurisdiction OVER THE SUBJECT OF THE APPEAL upon
perfection of the appeal and expiration of the period to appeal.

476 Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
85
a.2
The REQUISITES OF EXECUTION PENDING APPEAL are:
(1) A motion by the prevailing party with notice to the adverse party
(2)There must be good reason for execution pending appeal (3)
The good reason must be stated in a special order. They must constitute
superior circumstances demanding urgency which will outweigh the
injury or damage should the losing party secure a reversal of the
judgment on appeal.477EXAMPLES OF GOOD REASONS are:
deterioration of the goods, prevailing partys inability to enjoy the
decision, or its becoming illusory. In a recent case, OLD AGE was found
to be a good reason.478 NOTE: corporations financial distress was not
considered a good reason.
b.DISCRETIONARY EXECUTION BE STAYED upon approval by the
proper court of a sufficient supersedeas bond filed by the party against
whom it is directed CONDITIONED UPON THE PERFORMANCE
OF THE JUDGMENT / FINAL ORDER allowed to be executed in case
finally sustained in whole in part. The bond may then be proceeded
against on motion with notice to the surety.479 BUT, the mere filing of a
bond by a successful party allow execution pending appeal nor constitute
good ground.480
b.1There are JUDGMENTS NOT STAYED BY APPEAL such as
judgments in injunction, to include a judgment dissolving it 481
receivership, accounting and support and such other judgments as are
now or hereafter be declared to be immediately executory, shall be
enforceable upon their rendition, they shall not be stayed by an appeal
taken therefrom, unless otherwise ordered by the trial court. IF STAYED,
it shall be upon such terms as to bond or otherwise as may be considered
proper for the security / protection of the rights of the adverse party. ON
APPEAL THOUGH, the appellate court may make an order
suspending, modifying, restoring or granting the injunction, receivership,
accounting or award of support.482
b.2Judgments in Forcible Entry / Illegal Detainer, if against the defendant
are immediately executory.483 The same is true of a judgment by
compromise.484
b.3IF THERE ARE SEPARATE JUDGMENTS / OR SEVERAL OR
PARTIAL JUDGMENTS, they may executed under the same terms and
conditions as execution of a judgment / final order pending appeal.485
b.4IF EXECUTION IS GRANTED BUT JUDGMENT / FINAL ORDER
IS REVERSED ON APPEAL totally / partially or annulled, on appeal or
otherwise, the trial court, on motion, may issue orders of reparation or
restitution of damages as equity and justice may warrant under the
circumstances.486 The phrase or otherwise applies to reversal after a
477 Jaca v Davao Lumber Company, 113 SCRA 107

478 FEBTC v Toh, Sr. 404 SCRA 590
480 International School v. Court of Appeals, 309 SCRA 474
481 ITC v PTA, 341 SCRA 90
484 Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143
485 Supra, Section 2 (b), Rule 39
86
petition for relief has been granted under Rule 38 and upon a favorable
judgment in a petition for annulment of judgment under Rule 47
b.5The Court of Appeals has no authority to issue immediate execution
pending appeal of its own decision. Discretionary execution applies only
to a judgment or final order of the trial court.487
WHAT ARE / OR MAY BE THE SUBJECT OF EXECUTION
Only judgments or final orders, or one which disposes of the whole
subject matter or terminates a particular proceeding or action, leaving
nothing to be done but to enforce by execution that which has been
determined. AS OPPOSED TO -Interlocutory orders which cannot be
enforced by execution, one that does not dispose of a case completely,
but leaves something to be done on the merits.
1.An EXCEPTION is a judgment for support pendente lite.488
2.Distinguishing a final judgment or order from one which has become
final and executory. A final judgment is one that finally disposes of a
case, leaving nothing more to be done by the court in respect thereto. It is
an adjudication on the merits. Once rendered, the task of the court is
ended, as far deciding the controversy or determining rights and
liabilities of litigants. Nothing more is to be done but to await the parties
next move, and ultimately, to cause execution of the judgment once it
becomes final and executory.489
HOW CAN A FINAL JUDGMENT / ORDER BE ENFORCED
A final and executory judgment may be enforced by (1) By motion
within 5 years from date of entry of judgment (2)By action after the lapse
of 5 yrs from date of entry of judgment but before barred by statute of
limitations, which is 10 years. This is known as action to revive
judgment.490
1.The revived judgment may also be enforced by motion within 5 yrs
from date of entry, and thereafter by action before it is barred by the
statute of limitations. The purpose of the action is not to re-examine the
issues as the cause of action is the judgment itself and not the merits of
the original action.491
2.RECONCILING WITH ACTIONS UPON A JUDGMENT under
Article 1144, NCC WHICH PRESCRIBES IN 10 YEARS. The Rules of
Court refer to the manner of execution of the judgment.
3. Note that this is not applicable in land registration cases or other
special proceedings, IN CIVIL ACTIONS ONLY.
4. There are however instances when judgment / final order can still be
enforced by motion even after lapse of 5 years when the delay is caused
or occasioned by the actions of the judgment obligee or incurred for his
benefit or advantage.492 The liberal construction of the rule resulting in
non inclusion of the period of delay occasioned by the acts of the
judgment oblige in the counting of the period was resorted to as strict
487 Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206
489 Denso Philippines, Incorporated v IAC, 148 SCRA 280
491 Laperal v Ocampo, 410 SCRA 339
492 Camacho v Court of Appeals, 287 SCRA 611
87
adherence to the letter of the law would result in absurdity and manifest
injustice.493
ISSUANCE, FORM, CONTENTS OF A WRIT OF EXECUTION
A writ of execution shall (1)Issue in the name of RP from the Court that
granted the judgment (2)State the name of court, case number, title, and
dispositive portion (3)
Require the sheriff or other proper officer to
whom it is directed to enforce the writ according to its terms, in the
manner herein provided: (a) execution be against property of judgment
obligor, to satisfy judgment with interest, out of his real or personal
property (b)
if against real or personal property, in the hands of
personal representatives, heirs, devisees, legatees, tenants trustees of the
judgment obligor, to satisfy the judgment, with interest, out of such
property (c)
if it be for sale of real / personal property, to sell it,
describing it, and apply the proceeds in conformity with the judgment,
the material parts of which shall be recited in the writ (d)
if it be for
delivery of the possession of real / personal property, to deliver the
possession of the same, describing it, to the party entitled thereto and to
satisfy any costs, damages, rents, profits covered by the judgment out of
the personal property of the person against whom it was rendered, and if
no sufficient personal property be present, out of real property (e) in all
cases, the writ shall specifically state the amount of interest, costs
damages, rents, profits due as of the date of issuance of the writ aside
from the principal obligation under judgment494
MANNER OF EXECUTION
I.FOR SUMS OF MONEY
1. Immediate payment on demand from judgment obligor payable in
cash of certified bank check payable to the obligee or any form
acceptable to him plus lawful fees to be turned over to the clerk of court
of the court that issued the writ.
If judgment obligee is not present to receive the amounts, it shall be
delivered by judgment obligor to the sheriff, turning in all amounts on the
same day to the clerk of court or if not practicable, to deposit in the
nearest government depository bank of Regional Trial Court in the
locality, then arrangements are then made for remittance to clerk of court
issuing the writ for delivery to the judgment obligee. IN NO CASE
SHALL SHERIFF DEMAND PAYMENT BY CHECK PAYABLE TO
HIM
2. Satisfaction by levy if not paid in cash, the sheriff shall levy on the
properties of judgment obligor of any kind / nature which may be
disposed of for value and not otherwise exempt from execution giving
obligor the option to immediately choose which property or part thereof
may be levied upon to satisfy judgment. If not sheriff shall levy on
personal properties first, if any, then on real properties if insufficient to
answer for judgment. Sheriff can only sell sufficient portion of the
personal / real property levied upon when there is more property then is
sufficient to satisfy judgment, on so much of it to satisfy judgment is to
be sold. The conduct of the SALE SHALL FOLLOW THE
PROCEDURE LAID DOWN BY THE RULES TO IMPLEMENT SALE
OF PROPERTY.
493 Republic v Court of Appeals, 260 SCRA 344

88
2.1
EFFECT OF LEVY. A levy on execution shall create lien in
favor of the judgment obligee over the right, title and interest of the
judgment obligor in such property at the time of levy subject to liens /
encumbrances then existing effect then on 3 rd persons depends on
when their liens / encumbrances if any, was annotated or interposed.495
2.2PROBLEM if LEVY is made beyond the period of 5 years from entry
of judgment. The same is NOT VALID as lifetime or a writ of execution
is 5 years from date of entry of judgment.496
3.Garnishment of debts and credits. The officer may levy on debts due
the judgment obligor and other credits. Examples: bank deposits,
financial interests, royalties, commissions, and other personal property.
These are not capable of normal delivery and are in the possession and
control of third parties.
3.1
Levy shall be made by serving notice on the person owing such
debts or having in his possession or control such credits to which the
judgment obligor is entitled.
3.2
The garnishee, shall then make a written report to the court from
service of notice stating whether or not the judgment obligor has
sufficient funds or credits to satisfy the judgment the garnished amount
shall then be delivered directly to the judgment obligee within 10
working days from service of notice on him requiring delivery less
lawful fees to be paid directly to the Court.
3.3
If there are 2 or more garnishees the judgment obligor shall
have the right to indicate the garnishee/s who shall deliver, otherwise it
shall be the choice of the judgment obligee.497 (Section 9)
4.Writ is to be returned to the Court issuing it immediately after
judgment has been satisfied in part or in whole. If not / cannot be
satisfied in full within 30 days from receipt of the writ, the officer shall
report to the court and state the reason therefor. Such writ will continue
to be in effect during the period within which judgment may be enforced
by motion, the officer shall then make a report to the Court every 30 days
on the proceedings taken thereon until the judgment is satisfied in full or
its effectivity expires. The returns / reports shall set forth the proceedings
taken, filed with the court and copies promptly furnished parties.498
II.FOR SPECIFIC ACTS499
1.If CONVEYANCE, DELIVERY OF DEEDS OR OTHER SPECIFIC
ACTS party is directed to comply if he fails to do so within the period
specified, court may direct the act to be done at the cost of the
disobedient party, by some other person appointed by the court and when
so done it is as if done by the disobedient party. If it involves real /
personal property located in the Philippines, the court in lieu of directing
a conveyance thereof may by an order divest title and vest it in others,
which shall have the force and effect of a conveyance executed in due
form of law.

89
2. If for SALE OF REAL/PERSONAL PROPERTY the property is to

be sold, describing it, and apply the proceeds in conformity with the
judgment.
2.1
The procedure is as follows:
a. Notice must be given as follows:

1. Perishable property posting of written notice (of time, place, sale) in
3 public places preferably in conspicuous areas of the municipal/city hall,
post office, public market, for such a time as may be reasonable
depending on circumstances.
2. Personal property posting of written notice in 3 public places for not
less than 5 days.
3. Real property posting of written notice in 3 public places for at least
20 days, describing the property, where it is to be sold, and if assessed
value is in excess of PHP 50,000.00, publishing the notice in a newspaper
of general circulation once a week for 2 consecutive weeks.
IN ALL CASES written notice is also given to judgment obligor at
least 3 days before the sale except in (a) notice is given at any time in the
same manner as personal service of pleadings. 500
4.The CONTENTS OF NOTICE are the place, date exact time not earlier
than 9:00 am or later than 2:00 pm. The place may be agreed upon, if not,
Real/Personal property not capable of manual delivery shall be sold at
the Office of the Clerk of Court of Regional or Municipal Trial Court
issuing the writ. If capable of manual delivery, where personal property is
located.
5. If there is a sale WITHOUT NOTICE, the officer is liable for punitive
damages in the amount of PHP 5,000 in addition to actual damages
sustained by injured person. IF DEFACED / REMOVED before the
sale / satisfaction of the judgment, the person so defacing or removing
shall be liable to pay PHP 5,000.00 plus actual damages. These are
recoverable upon motion.501
b.All sales shall be by public auction. This applies also when property is
levied upon. Sale is made to the highest bidder, to start at the exact time
stated in the notice.
1. If sufficient property has been sold, no more shall be sold and any
excess property / proceeds shall be delivered to the judgment obligor or
his representative, unless otherwise directed by the court EXAMPLEother debts due to be paid
2. If sale is of real property consisting of several known lots they
must be sold separately or if claimed by a 3rd person, he may require it to
be sold separately.
3. Personal property capable of manual delivery it must be sold within
view of those attending and in such parcels so as to bring the highest
price.
4. The judgment obligor, if present may direct the order in which the
property is to be sold when such property consists of several parcels /
known lots which can be sold to advantage separately.

90
5. No officer or his deputies, can be a purchaser, nor be interested directly

or indirectly in any purchase at such sale.502
6.By written consent of both judgment obligor / obligee or their duly
authorized representatives, the auction sale may be adjourned to any date
or time agreed by them. Without an agreement officer may adjourn
from day to day if it becomes necessary.503
WHAT HAPPENS WHEN A PURCHASER REFUSES TO PAY
Officer may again sell the property to the highest bidder and shall not be
responsible for any loss occasioned thereby, like when it is resold for
less. But, the court may order the refusing purchaser to pay unto the
Court such loss, and punish him with contempt if he disobeys. Payment
shall inure to the benefit of party entitled to execution, unless he has been
satisfied, in which case to the judgment obligor. IN ADDITION: officer
may thereafter reject all bids of such purchaser.504
CAN JUDGMENT OBLIGEE PURCHASE
Yes, and if no 3 rd party claim has been filed, he need not pay the amount
if it does not exceed the amount of his judgment. If it does he shall only
pay the excess. 505
EFFECT OF PAYMENT BY JUDGMENT OBLIGOR BEFORE SALE
OF PROPERTY ON EXECUTION
Sale is prevented by the payment required by execution and cost incurred
therein506
WHAT HAPPENS IF PROPERTY IS CLAIMED BY THIRD PERSON
Third person is called a third party claimant. He is one who claims title
to, or right of possession of the property levied upon by the sheriff.
NOTE: there may be a 3rd party claimant in execution, preliminary
attachment and replevin.
WHAT DOES 3RD PARTY CLAIMANT DO
He can file a 3rd party claim or a terceria by executing an affidavit
showing his title thereto, or right of possession over the property being
levied upon, stating therein the grounds of such title or right, serving a
copy thereof to the sheriff and judgment obligee. If filed, sheriff is not
obliged to proceed unless the judgment obligee files an indemnity bond
in an amount not less than value of the property. No action on the bond
may enforced by the third party claimant unless filed within 120 days
from date of the filing of the bond. If bond is filed 3 rd party claimant
may vindicate his claim within the period OR he may institute a separate
action to vindicate his claim BUT nothing also prevents the judgment
obligee from claiming damages in the same or separate action against a
3rd party claimant who files a frivolous / spurious claim.

91
If writ is issued in the name of the RP, no bond is required. Officer is to

be represented by the SOLGEN, and if damages are assessed, it is to be
paid out of the National Treasury. 507
C.AFTER SALE, CONVEYANCE MADE AS FOLLOWS
I. REAL PROPERTY a certificate of sale is given stating the
description of the property, price paid for each distinct lot / parcel, whole
price paid and a statement that the right of redemption shall or will
expire one year from date of registration of the certificate. 508 MAKING
MENTION OF THE EXISTENCE OF A 3 RD PARTY CLAIM, IF ANY509
Note: the requirement of mentioning a 3rd party claim, if any, applies also
to conveyance over personal property.
THE PARTIES ENTITLED TO REDEEM ARE:
a.Judgment obligor, or his successor in interest, in whole or any part of
the property
b. A creditor having a lien by virtue of an attachment, judgment,
mortgage on the property sold or on some part thereof, subsequent to the
lien under which the property is sold. Such redeeming creditor is called a
REDEMPTIONER.510
TIME AND MANNER OF REDEMPTION
The judgment obligor / redemptioner may redeem the property from the
purchaser at any time within 1 year from registration by paying the
amount of purchase, plus 1% interest per month at the time of
redemption, together with the amounts of assessments / taxes paid at the
purchase and interest on the same at the same rate, AND, if the purchaser
be also a creditor having a prior lien to that of the redemptioner, other
than the judgment, the amount of the lien plus interest.
Property so redeemed may be redeemed within 60 days after the last
redemption upon payment of the sum paid, w/ 2% interest thereon plus
taxes / assessments paid, and amount of liens held by redemptioner prior
to his own. AND SO FORTH.
Written notice however of redemption must be given to the officer who
made the sale and duplicate with the Registry of Deeds and if any
assessments / taxes / prior liens are paid, notice must also be given to
above parties OTHERWISE, redemption can be effected without paying
taxes / assessments / liens. NOTE: Proof required of redemption under
Section 30
PROOF REQUIRED OF REDEMPTION
A redemptioner must produce to the officer, or person from whom he
seeks to redeem, and serve with notice to the officer- a copy of judgment
or final order, certified by the clerk of court. Mortgage / other lien
certified copy by the Register of Deeds / or memorandum thereof and
affidavit showing amount due on the lien.511

92
IF JUDGMENT OBLIGOR REDEEMS

He must make all the payments required to effect a redemption by a
redemptioner. Thereupon, no further redemption is allowed and he is
restored to his estate. The person upon whom redemption payment is
made shall execute a Certificate of Redemption after payment. Certificate
is then filed with the Office of the Registry of Deeds.512
WHO IS ENTITLED TO THE USE OF REAL PROPERTY PENDING
REDEMPTION
1.Person in possession at the time of sale or entitled to possession
afterwards may continue to use it in the same manner as it was
previously used, or to use in the ordinary course of husbandry or to make
necessary repairs to buildings thereon while he occupies the property,
BUT the court in proper cases, may restrain the commission of waste on
the property by injunction on the application of the purchaser / judgment
obligee with or without notice. 513
2.Rents, earnings and income shall belong to the judgment obligor until
the expiration of his period for redemption. Neither shall the purchaser or
judgment obligee be entitled to the same when such property is in the
possession of a tenant.514
IF NO REDEMPTION IS MADE
If no redemption is made within one year from date of registration, the
purchaser is entitled to possession and conveyance; OR if so redeemed
whenever 60 days has elapsed and no other redemption is made and the
time for redemption has expired, the last redemptioner is entitled to
possession and conveyance. BUT, in all cases the judgment obligor is
entitled to have the entire period of one year.
Officer shall execute the deed / or his successor in interest with the same
effect.
Once done, the purchaser / redemptioner shall be substituted to and
acquire all the rights title and interest and claim of the judgment obligor
to the property as of the time of the levy. Possession shall then be given
unless property is held by a 3rd party adverse to the judgment obligor.515
Manner of effecting transfer of possession is by writ of possession.516
IF THE SALE IS SUBSEQUENTLY RENDERED INFFECTIVE
If the purchaser of real property or his successor in interest fails to
recover possession or is evicted therefrom AS A CONSEQUENCE OF:
irregularities in the proceedings concerning the sale, judgment has been
reversed or set aside (RE: RELIEF),property is exempt from execution ,
or, 3rd person has vindicated his right to the property
HE MAY on motion in the same action OR in a separate action recover
from the judgment obligee the price paid with interest, or so much
thereof as has not been delivered to the judgment obligor OR, he may on
motion have the judgment revived in his name (if redemptioner) for the
whole price with interest, or so much thereof as has been delivered to the
judgment obligor Judgment revived shall have the same force and

516 Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678
93
effect as an original judgment would have as of the date of revived and

no more.517
II.PERSONAL PROPERTY a.
If capable of Manual Delivery, the officer must deliver the
property and if desired, execute and deliver a certificate of sale, which
shall conveys all right with the judgment obligor had in such property as
of date of levy on execution or preliminary attachment. 518
b. If Incapable of Manual Delivery, the officer must execute and deliver a
certificate of sale and such shall convey all rights to purchaser as of the
date of levy on execution or preliminary attachment. 519
3.If for DELIVERY OR RESTITUTION OF REAL PROPERTY
officer shall demand of the person against whom judgment is rendered
and all persons claiming rights under him to peaceably vacate the
property within 3 working days and restore possession thereof to the
judgment obligee OTHERWISE, officer shall oust all such persons
thereon, with assistance from peace officers employing reasonable means
and place the judgment obligee in possession. Any costs, damages, rents,
profits shall be satisfied in the same manner as a judgment for money.
4. If for REMOVAL OF IMPROVEMENTS officer shall not destroy,
demolish or remove except upon special order of the court, issued upon
motion / hearing and after the judgment obligee had failed to remove
within a reasonable time fixed by the rules.
5. If for DELIVERY OF PERSONAL PROPERTY officer shall take
possession and forthwith deliver it to party entitled thereto and satisfy
any judgment for money as herein provided. 520
EXECUTION OF SPECIAL JUDGMENTS
Performance of an act other than those enumerated in Section 9 and 10, a
certified copy of the judgment shall be attached to the writ of execution
and served upon party against whom it is rendered, or upon any person
required thereby, or by law, to obey the same if such party / person
disobeys they may be punished for contempt. 521 EXAMPLE:
Injunction, Quo warranto
WHAT ARE THE PROPERTIES EXEMPT FROM EXECUTION
Except as otherwise expressly provided by law, the following property,
and no other, shall be exempt from execution:
(a)
The judgment obligors family home as provided by law, or the
homestead in which he resides, and land necessarily used in connection
therewith;
(b)
Ordinary tools and implements personally used by him in his
trade, employment, or livelihood;
(c)
Three horses, or three cows, or three carabaos, or other beasts of
burden, such as the judgment obligor may select necessarily used by him
in his ordinary occupation;

94
(d)
His necessary clothing and articles for ordinary personal use,
excluding jewelry;
(e)
Household furniture and utensils necessary for housekeeping,
and used for that purpose by the judgment obligor and his family, such as
the judgment obligor may select, of a value not exceeding one hundred
thousand pesos;
(f)
Provisions for individual libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists, engineers, surveyors,
clergymen, teachers, and other professionals, not exceeding three
hundred thousand pesos in value;
(h)
One fishing boat and accessories not exceeding the total value
of one hundred thousand pesos owned by a fisherman and by the lawful
use of which he earns his livelihood;
(i)
So much of the salaries, wages, or earnings of the judgment
obligor for his personal services within the four months preceding the
levy as are necessary for the support of his family;
(j)
Lettered gravestones;
(k)
Monies, benefits, privileges, or annuities accruing or in any
manner growing out of any life insurance;
(l)
The right to receive legal support, or money or property
obtained as such support, or any pension or gratuity from the
Government;
(m)
Properties specially exempted by law.
But no article or species of property mentioned in this section shall be

exempt from execution issued upon a judgment recovered for its price or
upon a judgment of foreclosure of a mortgage thereon.522
Claims for exemption from execution of properties must be presented
before its sale on execution by the sheriff.523
WHAT HAPPENS TO EXECUTION UPON THE DEATH OF A
PARTY
It may issue or be enforced:
a. In case of death of judgment obligee, upon application of his executor
or administrator
b.
In case of death of judgment obligor, against his executor,
administrator, or successor in interest, IF it be for recovery of real or
personal property or enforcement of a lien.
c.
Death of judgment obligor after execution is actually levied
upon any of his property, the same may be sold for the satisfaction of the
judgment obligation and the officer must account to the executor or
administrator for any surplus, if any. 524
AS BETWEEN SEVERAL
EXECUTION IS DIRECTED
PERSONS
AGAINST
WHOM

523 Gomez v Gealone, 203 SCRA 474
95
There is a right to contribution or reimbursement if: more than a due

portion of the judgment is satisfied out of the proceeds of the sale of the
property of one of them, OR, one pays, without sale, more than his
proportion.
AND, if judgment is upon an obligation of one of them, as security for
another, and the surety pays the amount, or any part thereof, either by
sale of property or before a sale, he may compel repayment from the
principal.525
WHAT ARE THE OTHER REMEDIES OF THE JUDGMENT
OBLIGEE IF EXECUTION IS NOT CARRIED OUT OR JUDGMENT
IS NOT SATISFIED
1.Examination of the judgment obligor concerning his property and
income before the court or a commissioner and proceedings may
thereafter may be had for the application of his property or income
towards satisfaction of judgment BUT no obligor can be required to
appear before a court or commissioner outside the province or city where
he resides.526
2.Examination of the obligor of the judgment obligor upon proof shown
to the satisfaction of the court that a person, corporation or other juridical
entity has property of the judgment obligor or is indebted to him, the
Court may by order require the person, corporation or juridical entity to
appear before the Court / commissioner and be examined concerning the
same.
The service of the order shall bind all credits due the judgment obligor
and all money / property of the judgment obligor in the possession /
control of the person, corporation or juridical entity.
Notice of all proceedings may also be required by the court.527
Obligor of judgment obligor may thereafter pay after writ of execution
on property has been issued, the amount of his debt or so much thereof as
may be necessary to satisfy the judgment and the sheriffs receipt shall
constitute sufficient discharge for the amount so paid or directed to be
credited by the judgment obligee on the execution528
In relation to both remedies party or other person may be compelled to
appear by subpoena and failure to obey an order, subpoena or be sworn
or answer as a witness or subscribe to a deposition is punishable by
contempt. 529
3.Order for application of property and income to satisfaction of
judgment. it may include his property or money due the judgment
obligor, not exempt from execution, in his hands or other person,
corporation or juridical entity may be applied to satisfaction of judgment
subject to any prior rights over such property. ALSO, if upon
investigation of current income and expenses, the earnings of judgment
obligor are more than necessary for the support of his family, the court

96
may order that judgment be paid by monthly installments, failing in

which he may be punished for indirect contempt.530
4.Appointment of a receiver for the property of the judgment obligor, it
may also forbid a transfer or other disposition of or interference with the
property of the judgment obligor not exempt from execution.531
Thereafter, there can be a sale by the receiver upon order of ascertainable
interest (or the real estate itself) of a judgment obligor in real estate in the
place where proceedings are had as mortgagor / mortgagee or otherwise
and if his interest can be ascertained without controversy, the receiver
may be ordered to sell and convey such interest or real estate or the
interest of the obligor therein. All proceedings to be approved by the
Court before execution of the deed.532
In relation to the foregoing, IF IT APPEARS THAT A PERSON OR
CORPORATION, ALLEGED TO HAVE PROPERTY OF THE
JUDGMENT OBLIGOR DENIES OR CLAIMS INTEREST IN THE
PROPERTY ADVERSE TO HIM, The Court may: (1) order judgment
obligee to institute an action against such person or corporation for the
recovery of such interest or debt (2) forbid a transfer / disposition of such
interest / debt within 120 days from notice of the order (3) punish
disobedience of such order as for contempt. The order may be modified
or vacated at any time by the court that issued it, or by the court in which
the action is brought, upon terms as may be just.533
WHAT IS TO BE DONE AFTER JUDGMENT IS SATISFIED
Entry of satisfaction of judgment by the Clerk of Court in Court Docket
and Execution Book upon RETURN OF WRIT INDICATING
SATISFACTION / ON ADMISSION OF SATISFACTION BY
JUDGMENT OBLIGEE / COUNSEL534
It can also be entered upon demand of judgment obligor when judgment
is satisfied in fact OR upon notice / motion court may order entry
without admission535
EFFECT OF JUDGMENTS OR FINAL ORDERS
1.Effect of a judgment / final order rendered by a court in the Philippines,
having jurisdiction to pronounce the same.
(a)
In case of a judgment / final order against a specific thing, or in
respect to probate of a will or administration of the estate of a deceased
person, or in respect to personal, political or legal condition / status of a
particular person or his relationship to another, the judgment or final
order is conclusive upon the title to the thing, the will, administration
status or relationship of the person. HOWEVER, probate or granting of
letters of administration shall only be prima facie evidence of the death
of the testator.536
(b) Other cases, judgment / final order is with RESPECT TO THE
MATTER DIRECTLY ADJUDGED OR AS TO ANY MATTER THAT
COULD HAVE BEEN RAISED IN RELATION THERETO
is
CONCLUSIVE
BETWEEN THE
PARTIES AND THEIR

536 Supra, Section 47 (a), Rule 39
97
SUCCESSORS IN INTEREST BY TITLE SUBSEQUENT TO THE

COMMENCEMENT OF THE ACTION OR SPECIAL PROCEEDING
LITIGATING FOR THE SAME THING, UNDER THE SAME TITLE
AND IN THE SAME CAPACITY.537
(c) In any other litigation between the same parties or their successors in
interest, that only is deemed to have been adjudged in a former
judgment / final order which appears on its face to have been so adjudged
or which was actually and necessarily included therein or necessary
thereto.538
1.1Paragraphs (a) and (b) are illustrative of the concept of res judicata
that is also known as bar by prior judgment. This exists when between
the first case where judgment is rendered, and the second case where
such judgment is invoked, there is identity of parties, subject matter, and
cause of action. When all three are present, the judgment on the merits
rendered in the first constitutes an absolute bar to the subsequent action.
1.2
Paragraph (c) is illustrative of what is known as conclusiveness
of judgment, when between the first case wherein judgment was
rendered and the second case wherein such judgment is invoked, there is
only identity of parties, but there is no identity of cause of action, the
judgment is thus conclusive in the second case, only as to the matters
actually and directly controverted and determined, and not as to matters
merely involved therein.539
1.3CONCLUSIVENESS
OF JUDGMENT, also known as
PRECLUSION OF ISSUES or COLLATERAL ESTOPPEL espouses
that issues 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.540
1.4The doctrine of The law of the case states that whatever has once
been irrevocably established as the controlling legal rule of decision
between the same parties, whether correct on general principles or not, so
long as the facts on which the decision was predicated continue to be the
facts of the case before the court.541
2.Effect of a foreign judgment/final order
(a)
If upon a specific thing, the judgment / final order is conclusive
upon title to the thing
(b)
If against a person it is presumptive evidence of a right
between the parties and their successors in interest by subsequent title.
In either case, judgment / final order may be repelled by evidence of
want of jurisdiction, want of notice, collusion, fraud, clear mistake of fact
/ law.542
3.Effect of judgment against a surety
When a judgment is rendered against a party who stands as surety for
another, the latter (principal) is also bound from the time he has notice of
537 Supra, Section 47 (b), Rule 39

538 Supra, Section 47 (c), Rule 39
539 Oropeza Marketing Corporation v Allied Banking Corporation, 393 SCRA 278
540 Tan v Court of Appeals, 363 SCRA 444
541 Boiser v NTC, 169 SCRA
98
the action or proceeding, and an opportunity at the suretys request to

join in the defense.543
APPEALS
Rule 40 Appeals from MTC to RTC

WHERE CAN AN MTC DECISION BE APPEALED
A judgment / final order of the Municipal Trial Court is appealable to the
Regional Trial Court exercising jurisdiction over the area to which the
Municipal Trial Court pertains.
1.In the appeal, the case title remains, but party appealing is designated
as appellant, while the adverse party is designated as the partyappellee.544
WHEN CAN APPEAL BE TAKEN
15 days after notice to the appellant. If record on appeal is required 30
days after notice BUT period can be interrupted by a motion for
reconsideration or for new trial, though no motion to extend time for its
filing is allowed. 545
1.Note the fresh period rule that is now applicable to an appeal under
Rule 40, Rule 41, Rule 43 and Rule 45, which allows a party intending
to appeal another 15 days from receipt of an order denying a motion for
reconsideration or new trial to file an appeal 546
HOW IS APPEAL TAKEN
1. By notice of appeal indicating parties, judgment or final order
appealed from statement of the material dates showing timeliness of the
appeal.
2.
By record on appeal in special proceedings or cases allowing
for multiple appeals, like probate or partition. The record on appeal shall
contain the following:
a. Full name of the parties stated in the caption including the judgment /
final order from which appeal is taken
b. In chronological order, copies of all pleadings, petitions, motions, and
all interlocutory orders as are related to the appealed judgment / final
order for proper understanding of the issue.
c. Data to show that appeal was filed on time
d. If issue of fact is to be raised, it should include reference the
documentary evidence by exhibit taken on the issue specifying the
documentary evidence by exhibit nos. or letters and testimonial evidence
by the names of the witnesses. If the whole of it is included, a statement
to such effect is sufficient.

546 Neypes v Court of Appeals, GR 141524, September 14, 2005
99
e. If more than 20 pages include a subject index 547

NOTE that the requirement for a Approval of record on appeal548 the
trial court may approve it, if no objection is filed by the appellee or
upon its motion / appellee direct its amendment by the inclusion of
omitted matters which are deemed essential to the determination of the
issue of law or facts involved is the appeal.If amendment is ordered,
which the appellant must comply with within the period stated, any
extension or if none, within 10 days, submitting the redrafted record for
the approval of the Court. Where both parties are appellants, they may
file a joint record on appeal.549
3.Regardless of the mode of appeal, the adverse party is to be furnished
with a copy.
WHEN PERFECTED
As determined by Section 9, Rule 41:
1. If by notice of appeal, it is perfected upon the filing of the notice in due
time. The court loses jurisdiction upon perfection and expiration of the
time of appeal of other parties.
2. If by record on appeal, it is perfected upon approval of record on
appeal filed in due time. Court loses jurisdiction upon approval and
expiration of time to appeal of other parties.
In either case, prior to transmittal of the records, the court may issue
orders: (a)protection and preservation of the rights of the parties not
involving any matter litigated by the appeal (b)approve compromises (c)
permit appeals of indigent litigants (d)order execution pending appeal (e)
allow withdrawal of appeal.550 This is power is known as RESIDUAL
JURISDICTION
3.In both cases, DOCKET FEES / OTHER FEES are also to be paid to
the clerk of court of the court that rendered judgment. Proof payment of
the same shall be transmitted to the appellant court together with the
records / record on appeal. 551
a.Late payment of docket fees may be admitted when a party shows a
willingness to abide by the Rules by immediately paying the docket fee
six days after filing a notice of appeal and beyond the period for
perfecting an appeal.552
b.Where delay in the payment of docket fee was not due to a desire to
delay or defeat the ends of justice, late payment thereof which causes no
prejudice to anyone should not result in the dismissal of the appeal.553
a.THE RECORD/RECORD ON APPEAL IS TRANSMITTED by the
clerk of court within 15 days from perfection, together with transcripts /
exhibits, which he will certify as complete. A copy of the transmittal shall
be furnished the parties.554

552 Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
553 Lopez v Court of Appeals, 75 SCRA 401
100
WHAT HAPPENS UPON TRANSMITTAL TO THE RTC

Within 15 days from notice, appellant shall submit a memorandum
briefly discussing errors imputed to the lower court, copy furnished the
adverse party. Within 15 days from receipt of appellants memorandum,
appellee may file his own memorandum. Failure of appellant shall be
ground for dismissal of the appeal. Upon filing / expiration, the case is
submitted for decision on the basis of the record in Municipal Trial Court
and the memoranda submitted by the parties.555
1.NOTE that if an appeal is taken from an order of the lower Court
dismissing the case without trial on the merits, the Regional Trial Court
may affirm or reverse it as the case may be:
a. In case it is affirmed and ground of dismissal is lack of jurisdiction
over the subject matter of the case, the Regional Trial Court, if it has
jurisdiction, shall try the case on the merits as if the case was originally
filed with it. In case of reversal, it shall be remanded back for further
proceedings.
b. If it was tried on the merits, without jurisdiction, the RTC on appeal
shall not dismiss the case if it has original jurisdiction, but shall decide
the case in accordance with Section 7, without prejudice to the admission
of amended pleadings and additional evidence in the interest of justice.556
RULE 41 APPEALS FROM REGIONAL TRIAL COURTS
An appeal may be taken from a judgment /final order that completely
disposes of a case, or a particular matter therein when declared by the
Rules to be appealable BUT NO APPEAL CAN BE TAKEN FROM:
(a) Order denying a motion for new trial or reconsideration. An appeal of
judgment/final order is remedy or certiorari under Rule 65
(b)
Order denying a petition for relief from judgment or similar
motion. Certiorari under Rule 65 is remedy
(c)
Interlocutory order. Certiorari under Rule 65 or mandamus is
remedy
(d)
Order disallowing or dismissing an appeal. Mandamus or
petition for relief from judgment is the remedy
(e)
Order denying a motion to set aside judgment by consent
confession, compromise on the ground of fraud, mistake, duress or any
ground vitiating consent. A petition for relief or a petition to annul
judgment under Rule 47 or Certiorari under Rule 65 is the remedy
(f)
Order of execution. Certiorari under Rule 65 is the remedy
(g)
Judgment / final order in separate claims, counterclaims, cross
claims 3rd party claims, while main case is pending, unless the court
allows an appeal therefrom. The object is facilitate the trial of all issues.
(h)
Order dismissing an action without prejudice. The remedy is to
refile or certiorari under Rule 65.557

101
NOTE: That declaration of presumptive death not appealable by the state,

neither by other party. Remedy of the spouse declared presumptively
dead is to file affidavit of reappearance. See Article 41, Family Code
WHAT ARE THE MODES OF APPEAL OF A JUDGMENT OR FINAL

ORDER OF A REGIONAL TRIAL COURT558
(a) Ordinary appeal refers to an appeal by notice of appeal of the decision
of the Regional Trial Court in cases decided in the exercise of its original
jurisdiction raising question of fact or mixed questions of law and fact
1. The period of ordinary appeal is 15 days from notice of judgment /
final order appealed from. If requiring a record on appeal, it is 30 days.
Said periods are interrupted by a motion for new trial or reconsideration
but no extension of time for their filing is allowed. NOTE: That in habeas
corpus cases the period is 48 hours from notice of judgment or final
order559 NOTE ALSO: The application of the fresh period rule.
2.Appellate court docket fees / lawful fees shall be paid within the period
for taking an appeal to the clerk of court of the court that rendered
judgment BUT failure to pay is a ground for dismissal of the complaint560
3.If Appeal is by NOTICE OF APPEAL, it must indicate parties,
judgment or final order appealed from, and include a statement of the
material dates showing timeliness of the appeal. 561 or if by RECORD ON
APPEAL it must comply with the requirements as previously discussed
in an appeal from the Municipal Trial Court to the Regional Trial
Court.562
4.PERFECTION OF APPEAL IS AS DISCUSSED under Rule 40. 563
Subsequently, it is the DUTY OF CLERK OF COURT OF THE
LOWER COURT within 30 days after perfection of all appeals to: (a)
verify correctness of the original record / record on appeal and make a
certification as to correctness (b) verify completeness of records
transmitted to appellate court (c) If incomplete, take necessary measures
as may be required to complete the records, availing of the authority that
he or the court may exercise for this purpose. (d) transmit the records to
the appellate court. (e) then furnish parties of his transmittal. 564
4.1IF EFFORTS TO COMPLETE FAIL, it shall be indicated in the letter
of transmittal which exhibits / transcripts are not included, the reasons
why they were not transmitted and the steps taken to make them
available.
4.2
It is likewise required that the transcripts be transcribed 565 and
that the transmittal to include proof of payment of docket fees.
4.3Prior to transmittal of record / record on appeal, the court may motu
propio or on motion to dismiss the appeal for having been take out of
time OR for non payment of docket and other lawful fees within the

562 Supra, Sections 6,7,8, Rule 41
565 Supra, Section 11 and 12, Rule 41
102
reglementary period.566 If transmitted already, the Court of Appeals may

dismiss.
5.Other procedural requirements and disposition of the appeal are
governed by Rule 44:
5.1
The title of the case shall remain, party appealing shall be
referred to as appellant / adverse party-appellee. 567 Counsel / guardians ad
litem of parties shall likewise be considered as such in Court of Appeals,
when others appear or are appointed, notice shall be filed and furnished
adverse parties.568
5.2If the RECORDS are not transmitted to the Court of Appeals within
30 days after perfection of the appeal, either party may file a motion with
the Regional Trial Court, with notice to the other, for transmittal.569
5.3UPON RECEIPT BY THE COURT OF APPEALS, the clerk shall
docket the case and notify the parties. If appeal is by record on appeal,
within 10 days from receipt of notice, appellant must file with the clerk
of court 7 clearly legible copies of approved record on appeal and proof
of service thereof to adverse party of 2 copies. Any unauthorized,
alteration, omission or addition shall be ground for dismissal of the
appeal.570
The Clerk of the CA should also ascertain the completeness of the
records. If incomplete, he shall inform the court and recommend
measures to complete the record within the shortest possible time BUT if
it cannot be completed due to insuperable or extremely difficult
circumstances. The court, on its own or upon motion, may declare the
record sufficient to decide issues and explain reason for such
declaration.571
5.4ONCE DONE, Briefs are to be filed: (a) The Appellants Brief must
be filed within 45 days from notice that all evidence, documentary /
testimonial are attached to the record, 7 copies of the brief are to be filed
attaching proof of service of 2 copies to adverse party.572 Where there
are several parties, each counsel representing one or more but not all may
be served with 1 copy. If several counsel represent one party, service may
be made on any one of them.573 The CONTENTS OF THE
APPELLANTS BRIEF are: (1) subject index (2)assignment of errors (3)
statement of the case (4)statement of facts (5)statement of issues (6)
arguments (7) relief (8) if not by record on appeal, an appendix, copy of
judgment / final order appealed. 574 (b) The Appellees Brief is to be filed
within 45 days from receipt of Appellants Brief. It is required that 7
copies be filed with proof of service of 2 copies on appellant. The
CONTENTS OF APPELLEES BRIEF are: (1) subject index (2)
statement of facts, either a statement of acceptance or counter-statement
of facts (3) Arguments575 (c) A Reply Brief may be filed by appellant
within 20 days from receipt of the Appellees Brief. 576 NO EXTENSION

103
OF TIME TO FILE BRIEFS is allowed except for good and sufficient

cause, and only if filed before expiration of the time sought to be
extended577 IN LIEU OF BRIEFS, MEMORANDA is required in
certiorari, prohibition, madamus, quo warranto, hebeas corpus within a
non-extendible period of 30 days from notice that all evidence is attached
to the record. Failure of appellant to file his memoranda is ground to
dismiss the appeal.578
5.5QUESTIONS OF LAW OR FACT MAY BE RAISED in the appeal,
whether or not a motion for new trial has been filed and must within the
issues framed by the parties.579
As a rule, a party who deliberately adopts a certain theory upon which
the case is tried and decided by the lower court will not be permitted to
change his theory on appeal. Points of law, theories, issues, and
arguments not brought to the attention of the lower court need not be ,
and ordinarily not be, considered by a reviewing court, as these cannot be
raised for the first time at such late stage. Basic considerations of due
process underlie this rule.580
6.In Criminal Cases, note the possibility of the filing of two notices of
appeal when the penalty imposed by the Regional Trial Court is life
imprisonment or reclusion perpetua, appeal is by notice to the Court of
Appeals, and by notice again to the Supreme Court. If the penalty is
death, it is automatically reviewed by the Supreme Court, but such shall
be made by the Court of Appeals, which shall render judgment, then
certify it to the Supreme Court, who will then enter the same. 581
(b) Petition for Review is an appeal to the Court of Appeals of judgment
/ final order of the Regional Trial Court in the exercise of its appellate
jurisdiction under Rule 42
1. It is initiated by the filing of a Verified Petition for Review with the
Court of Appeals, paying at the same time to the Clerk of Court of
Appeals the corresponding docket fees and lawful fees, depositing 500
for costs, furnishing the Regional Trial Court and adverse party with a
copy of the Petition.
2. It is to be filed within 15 days from notice of decision sought to be
reviewed or denial of motion for new trial or motion for reconsideration.
UPON PAYMENT OF DOCKET FEES AND DEPOSIT AND BEFORE
EXPIRATION OF THE PERIOD, the Court of Appeals may grant an
extension of 15 days. No further extension can be given unless for the
most compelling reason, but in no case to exceed 15 days. 582
3.FORM, CONTENTS, NUMBER OF COPIES. 7 copies are to be filed,
indicating the original copy intended for the Court of Appeals containing
(a)full names of parties, without impleading the lower court / judges
(b)specific material dates indicating that it is filed on time (c) statement
of matters, issues, specification of errors of fact / law and reasons /
arguments relied upon (d)accompanied by clearly legible duplicate
copies or true copies of judgment of the lower courts, certified correct by
Regional Trial Court clerk of court, pleadings and other material portions
supporting the allegations of the petition (e) certification against forum

580 BPI v Leobrera, 416 SCRA 15
581 People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004
104
shopping / verification. NOTE: Failure to pay fees or comply with the

requirements shall be sufficient ground for dismissal.583
4.The appeal is deemed PERFECTED upon timely filing of the petition
and payment of docket fees. The RTC loses jurisdiction upon perfection
of the appeal and lapse of time to appeal by the other parties. The
Regional Trial Court continues to have RESIDUAL JURISDICTION
until the same has been given DUE COURSE.584
5.NOTE that except in cases covered by the Rule on Summary
Procedure, appeal shall stay the judgment / final order unless Court of
Appeals or the Rules provide otherwise
6. ONCE FILED, the Court of Appeals may: (a) Require the respondent
to file a comment, not a motion to dismiss, within 10 days from notice
(b)Dismiss the petition if found to be patently without merit, prosecuted
manifestly for delay, or questions raised therein are too unsubstantial to
require consideration.585
7.The COMMENT should be filed in 7 copies, accompanied by certified
true copies of such MATERIAL PORTIONS OF THE RECORD AND
OTHER SUPPORTING DOCUMENTS, stating: (a)Statement of
whether or not he accepts the statement of matters (b) Point
out
the
insufficiencies / inaccuracies (c) State reasons why it should not be given
due course. Copy of which must be served on adverse party.586
8.A petition is given DUE COURSE when upon the filing of the
comment or expiration of the period to file, the Court of Appeals finds
PRIMA FACIE that the lower court has committed an error of fact / law
that will warrant a reversal / dismissal. CONSEQUENTLY, the Court of
Appeals, if it deems necessary, will order the elevation by the clerk of the
Regional Trial Court of the entire record within 15 days from notice.587
9.IT IS SUBMITTED FOR DECISION after the filing of last pleading or
memorandum. Prior to that though, the Court of Appeals may set it for
oral argument / or require memoranda to be submitted within a period of
15 days from notice.588
(c) Appeal by Certiorari or Petition for Review on Certiorari which
should involve a pure question of law direct to the Supreme Court under
Rule 45
1. A Question of Law is one that requires interpretation or application of
a law, while a Question of Fact is one that pertains to a resolution of a
factual dispute.
1.1
There is a question of law in a given case when the doubt or
difference arises as to what the law is pertaining to a state of acts, and
there is a question of fact when the doubt arises as to the truth or falsity
of alleged facts.589
2.This is initiated by the filing of a Verified Petition for Review on
Certiorari raising only questions of law. This mode of appeal is available
to question judgment / resolutions of the Court of Appeals, the

589 Manila Bay Club Corporation v Court of Appeals, 245 SCRA 715
105
Sandiganbayan, a Regional Trial Court, and other Courts whenever

authorized by law.590
3.The TIME FOR FILING is 15 days from notice of the judgment, final /
order, or resolution or of denial of petitioners motion for new trial /
reconsideration. On motion and with full payment of docket fees and
deposit of costs, the Supreme Court on justifiable reason may grant an
extension of 30 days within which to file the petition.
Docket fees and proof of service of the petition on the lower court and
adverse party must accompany the filing of the petition.591
4.18 copies of the petition are required to be filed, indicating the original
copy for the court. It should contain: (a) full names of parties (petitioner /
respondent) without impleading court / judge (b) indicate material dates
(c)concise statements of the matters involved and the reason / arguments
relied upon for the allowance of the petition (d) clearly legible copies of
judgment / final order / reconsideration or certified true copy and other
material portion supporting the record (e) Certificate against forum
shopping and verification592
5.UPON FILING, the Supreme Court can:
5.1
DISMISS (1) for failure to comply with the requirements
regarding payment, proof of service, contents and documents (2) on its
own initiative because it is without merit, prosecuted for delay, or issues
are too unsubstantial to require consideration, OR
5.2
ALLOW REVIEW, which is not a matter of right but is
discretionary, when there are special / important reasons therefor:
EXAMPLES- (1) when the court a quo has decided a matter of substance
not therefore determined by the Supreme Court or decided in a way not
in accord with the law or applicable decisions of the Supreme Court (2)
when court a quo has so far departed from the accepted and usual course
judicial proceedings, or so far sanctioned such departure by a lower
court, as to call for an exercise of the power of supervision.593
6.If given DUE COURSE, the Supreme Court can: (a) Require elevation
of the records / or specified portions thereof within 15 days from notice
594
(b) Require filing of pleadings, briefs, memoranda or documents as it
may deem necessary within periods / conditions it may consider
appropriate and impose sanctions for non-filing / non-compliance or
unauthorized filing. This ALSO applies to a determination as to whether
it should be dismissed or denied. 595 The RULE APPLIES TO BOTH
CIVIL / CRIMINAL ACTIONS, except in cases where penalty is death,
reclusion perpetua / life imprisonment.596
7.The exceptions to the general rule that only questions of law may be
raised in a petition for review are:(a) when the conclusion is a finding
grounded entirely on speculation, surmises, or conjectures; (b) when the
inference made is manifestly mistaken, absurd, or impossible; (c) where
there is a grave abuse of discretion; (d) when the judgment is based on a
misapprehension of facts; (e) when the findings of fact are conflicting; (f)

106
when the Court of Appeals, in making its findings, went beyond the issue
of the case and the same is contrary to the admissions of both appellant
and appellee; (g) when the findings of the Court of Appeals are contrary
to those of the trial courts; (h) when the findings of facts are conclusions
without citation of specific evidence on which they are based; (i) when
the facts set forth in the petition as well as in the petitioners main and
reply briefs are not disputed by the respondents; (j) when the finding of
fact of the Court of Appeals is premised on the supposed absence of
evidence but is contradicted by the evidence on record; and (k) when the
Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties and which, if properly considered, would justify a
different conclusion.597
(d)By Petition for Review under Rule 43 in a case decided by the
Regional Trial Court sitting as a commercial court.598
1.Applies primarily to appeals from the Court of Tax Appeals and other
quasi-judicial agencies to the Court of Appeals, but is not applicable to
judgments / final orders under the Labor Code.599
2.The appeal can include questions of fact, law or mixed questions of law
and fact.600
3.The appeal shall be taken within fifteen (15) days from notice if the
award, judgment, and final order of resolution, or from the date of its last
publication, if publication is required by law for its effectivity, or of the
denial of the petitioners motion for new trial or reconsideration duly
filed in accordance with the governing law of the court or agency a quo.
Only one (1) motion for reconsideration shall be allowed. Upon proper
motion and the payment of the payment of the full amount of the docket
fee before the expiration of the reglementary period, the Court of Appeals
may grant an additional period of fifteen (15) days only within which to
file the petition for review. No further extension shall be granted except
for the most compelling reason and in no case to exceed fifteen (15)
days.601
4. All other procedural matters and requirements are similar to a Petition
for Review under Rule 42 EXCEPT that an appeal under this Rule shall
not stay the award, judgment, final order or resolution unless the Court
of Appeals deems otherwise.602
7.In summary judicial proceedings under the Family Code, there is no
reglementary period within which to perfect an appeal, precisely because
judgments rendered thereunder, by express provision of Section 247 of
the Family Code, are immediately final and executory.603 Appeal by
notice of appeal is erroneous. The Court of Appeals should have
dismissed as it had no jurisdiction to review on appeal. Per Justice
Panganiban, Certiorari under Rule 65 is the remedy of the State.
PROCEDURE WITH THE COURT OF APPEALS
RULE 46 ORIGINAL CASES FILED WITH THE COURT OF
APPEALS
597 Martinez v Court of Appeals, 358 SCRA 38

598 A.M. No. 04-9-07-SC, September 14, 2004
603 Republic v Bernardez-Lorino, 449 SCRA 57
107
Parties are to be designated as petitioner / respondent 604 and is to apply to

cases of Certiorari, Prohibition, Mandamus, Quo Warranto and to
petitions for annulment of judgment under Rule 47605
CONTENTS OF PETITION FILING EFFECTS OF NON
COMPLIANCE
Petitions filed before the Court of Appeals must contain the following:
(1) identification of the parties, a concise statement of matters involved,
the factual background of the case, and the grounds relied upon for the
relief prayed for (2)statement of material dates, AND IN A PETITION
UNDER RULE 65, material dates are dates of notice of judgment or final
order, when a motion for new trial or reconsideration was filed, if any,
and when notice of denial was received (3) clearly legible duplicate
originals or certified true copy of the attachments (4)certification against
forum shopping (5)docket fees / deposit for cost. 606 FAILURE TO
COMPLY IS SUFFICIENT GROUND FOR DISMISSAL OF
PETITIONS
A certified true copy is one the certification of which is made by the
proper clerk of court or his duly authorized representative.607
HOW DOES THE COURT ACQUIRE JURISIDICTION
Jurisdiction over the person or the respondent is acquired by service of
order or resolution indicating initial action on the petition or voluntary
submission to jurisdiction.608
ACTION TO BE TAKEN BY THE COURT OF APPEALS
1.The COURT may dismiss the petition outright with specific reasons
OR require the filing of a comment within 10 days from notice. ONLY
PLEADINGS REQUIRED CAN BE FILED OTHERS CAN ONLY BE
FILED WITH LEAVE OF COURT.609
2.If factual issues are to be resolved, the Court of Appeals can conduct
hearings or delegate reception of evidence on such issues to any of its
members or to an appropriate court / agency / office. 610(Section 6, Rule
46)
3.If comment is not filed, it may be decided on the basis of the record
without prejudice to any disciplinary action against disobedient party.611
4.The COURT, IF THE PETITION IS NOT DISMISSED OUTRIGHT:
4.1
Can call the parties / counsel to a preliminary conference, the
object of which is to : (a) consider compromise agreements, except when
case is not allowed to be compromised (b) define, simplify and clarify
issues (c)formulate stipulation of facts and admissions of documentary
exhibits, limit the number of witnesses in cases falling within its original
jurisdiction or those within its appellate jurisdiction where a motion for

607 Paras v Baldado, 354 SCRA 141
108
new trial is granted on newly discovered evidence (d) other matters that
may aid in prompt disposition of the case.612
4.2Record of proceedings is made and a RESOLUTION embodying
actions shall be issued613 which shall be binding upon parties and control
subsequent proceedings unless within 5 days from notice, it can be
shown by valid cause why it should not be followed or there is need for
modifications to prevent manifest injustice614
4.3At it own instance or by motion, to hear the parties in oral argument
on the merits of the case or on any material incident AND is limited to
such matters as the court may specify in its order or resolution.615
4.4In the conduct of oral arguments, unless authorized, only 1 counsel
may argue for a party. Duration, sequence and all related matters shall be
as directed by the Court.616
4.5MOTIONS THOUGH ARE NOT TO BE SET FOR HEARING, AND
UNLESS DIRECTED BY THE COURT, NO HEARING OR ORAL
ARGUMENTS shall be allowed in support thereof. The adverse party
may file objections within 5 days from notice, then upon expiration of
the period, it is submitted for resolution.617
RULE 50 - GROUNDS FOR DISMISSAL BY THE COURT OF
APPEALS
In ALL CASES THAT COME BEFORE IT, and besides on a finding
that the case is without merit, prosecuted for delay or issue is too
unsubstantial to merit consideration, ON MOTION OF THE COURT OR
OF THE APPELLEE, it may dismiss the petition on the basis of:
1.Failure of record on appeal to show on its face that appeal was taken
within period fixed by the Rules.
2. Failure to file notice of appeal or record on appeal within period within
the period prescribed by the Rules.
3. Failure to pay docket fees as provided under Section 5, Rule 40 and
Section 4, Rule 41.
4. Unauthorized alterations, omissions, additions on record on appeal as
provided under Section 4, Rule 44
5. Failure of appellant to serve and file required number briefs or
memoranda within provided time by these Rules
6. Absence of specific assignment of errors or page references to the
record as required by Section 13, paragraphs a,c,d, and f of Rule 44
7. Failure of appellant to take necessary steps for the correction or
completion of the records within time limited by the Court
8. Failure to appear at preliminary conference under Rule 48, or comply
with orders, circulars or directives of the Court without justifiable cause

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9. The fact that order / judgment appealed from is not appealable.618

DISMISSAL OF IMPROPER APPEAL
1.An appeal under Rule 41 from the Regional Trial Court to the Court of
Appeals raising only questions of law shall be dismissed as issues purely
of law are not reviewable by the Court of Appeals
2. An appeal by notice of appeal instead of petition for review from a
Regional Trial Court exercising appellate jurisdiction shall be dismissed
3. An appeal erroneously taken to Court of Appeals shall not be
transferred but shall be dismissed outright.619
WITHDRAWAL OF AN APPEAL
An appeal may be withdrawn as of right at any time before the filing of
the appellees brief. Thereafter, only upon discretion of the Court.620
RULE 51 - JUDGMENT
When submitted for judgment:
1. IN ORDINARY APPEALS:
a. Where no hearing on merits is held, upon filing of the last pleading,
brief, memoranda or expiration of period to file.
b. Where a hearing is held, upon termination of hearing or upon filing of
the last pleading, memoranda as may be required or permitted, or
expiration of period to file
2.
IN ORIGINAL ACTIONS / PETITIONS FOR REVIEW
a. Where no comment is filed, upon expiration of the period to file

comment
b. Where no hearing, same as 1 (a)
c. Where hearing is held, same as 1 (b)621
3.Judgment is rendered by members of the court who participated in the
deliberations on the merits before assignment to a member for writing of
the decision.622
4.Participation of all 3 justices shall be necessary at deliberation and
unanimous vote shall be required for pronouncement. If not, the clerk
shall enter the vote of dissenting justices in the record. Thereafter,
Chairman of the division refers it to the Presiding Justice, who will
designate 2 justices by raffle to sit temporarily and to form a special
division of five (5) justices. The participation of all is required for
deliberation. Concurrence of majority is required for pronouncement.623
Note: That in rendering judgment, harmless errors or those which do not
affect the substantial rights of the parties 624 or errors that are not assigned

110
will not be considered unless they affect jurisdiction, validity of

judgment, and of proceedings.625
4.1HARMLESS ERROR DOCTRINE means that any error or defect
which does not affect substantial rights will be disregarded by the
reviewing court or tribunal. It is followed to deal with evidence
improperly admitted during trial wherein its damaging quality and impact
to the substantial rights of the litigant are examined. If deemed slight and
insignificant, the error is disregarded. 626 It is not a ground for granting of
a new trial or for setting aside, modifying, or disturbing a judgment or
final order unless the refusal appears to the Court inconsistent with
substantial justice.
5.JUDGMENTS OF THE COURT OF APPEALS IN THE EXERCISE
OF APPELLATE JURISDICTION MAY affirm, reverse, or modify the
judgment or final order appealed from. It may also order or direct a new
trial to be held or that further proceedings be taken. 627 The decision must
state clearly and distinctly the findings of fact and conclusions of law on
which it is based, which may be contained in the resolution itself or
adopted from those set forth in the judgment, final order appealed
from.628
6.PROCEDURE AFTER JUDGMENT IS:
6.1
After signing by the justices, it shall be delivered to the clerk of
court, who shall indicate thereon the date of promulgation and cause true
copies thereof to be served upon the parties or counsel.629
2.If no appeal, or motion for new trial or reconsideration is filed within
the period, the judgment or final resolution shall be entered in the book
of Entries of Judgment. Judgment or final resolution shall be deemed
executory as of the date of entry. The record shall contain the dispositive
portion, signed by the clerk with a statement that it is final and
executory.630
3.Execution shall as a rule issue upon a motion in the proper court upon
its entry. In appealed cases, where the motion is filed with the Court of
Appeals at the time that it is in possession of the original records or
record on appeal, the resolution granting the motion shall be transmitted
to the lower court from which the case originated, together with certified
copy of the judgment to be executed, with a directive to said court to
issue the proper writ for its enforcement. In original actions, the writ
shall be accompanied by a certified true copy of the entry of judgment
and addressed to appropriate officer for enforcement.631
RULE 52- MOTIONS FOR RECONSIDERATION BEFORE THE
CA
Judgments of the Court of Appeals can be the subject of reconsideration
within fifteen (15) days from notice thereof, with proof of service to the
adverse party. 632

626 People v Teehankee, 269 SCRA 54.
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1.No second motion for reconsideration will be entertained.633

2.It is to be resolved within sixty (60) days from submission for
resolution634 and while pending, shall stay the execution unless for good
reason, court directs otherwise.635
RULE 53- MOTION FOR NEW TRIAL
It can be filed at any time after appeal from the lower court has been
perfected and before the Court of Appeals loses jurisdiction, on the
ground of newly discovered evidence WHICH COULD NOT HAVE
BEEN DISCOVERED PRIOR TO THE TRIAL IN THE COURT
BELOW BY THE EXERCISE OF DUE DILIGENCE AND WHICH IS
OF SUCH A CHARACTER AS WOULD PROBABLY CHANGE THE
RESULT. The motion must be accompanied by affidavits showing the
facts constituting the grounds and the newly discovered evidence.636
The Court of Appeals shall then consider the evidence and that adduced
at the trial, to determine if it will grant or refuse a new trial, or make such
order, with notice to both parties, as to the taking of further testimony,
either orally in court, by depositions, or render such other judgment as
ought to be rendered upon terms it may deem just. 637 IF GRANTED, the
procedure shall be the same as that granted by a Regional Trial Court.638
Motion should be resolved within 90 days from the date it is declared to
be submitted.639
OTHER MATTERS
RULE 54 Internal Business
Allotment of cases shall be among the different divisions for hearing and
decision. The Court of Appeals En Banc shall make proper orders or
rules to govern allotment, the constitution of such divisions, the regular
rotation of justices, filling of vacancies, and other matters. Such will
continue in force and repealed or altered by it or the Supreme Court.640
A majority of the court shall constitute a quorum for sessions en banc and
a majority of the members present shall be necessary to pass a resolution.
Three members of a division shall constitute a quorum for sessions of a
division and the affirmative vote of three members shall be necessary for
pronouncement of judgment/resolution, which shall be reached in
consultation among them before the writing of the opinion by any
member of the division.641
RULE 55 Publication of Judgment/Final Order/Resolution
Judgments and Final Resolutions shall be published in the Official
Gazette and in the Reports officially authorized by the Court, in the
language originally written, together with a syllabi. If not so published, a

112
memoranda shall be made and published in the like manner. 642 The
publication is to be prepared by the Reporter. 643 Those of the Supreme
Court are called Philippine Reports, while those of the Court of Appeals
are called Court of Appeals Reports. 644
RULE 47-ANNULMENT OF JUDGMENT

Annulment of judgment covers judgments of the Regional Trial Court for
which the ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies ARE NO LONGER AVAILABLE
THROUGH NO FAULT OF THE PETITIONER645
1.An important condition for the availment is that the petitioner failed to
move for new trial, or appeal from, or file a petition for relief against, or
take other appropriate remedies through no fault attributable to him. If he
failed to avail of the other remedies through his own fault, he would then
benefit from his inaction or negligence. 646 He must allege non availment
of other remedies through no fault of the petitioner, otherwise the petition
will be dismissed.647
1.1Note that the correctness of the judgment is not in issue as a petition
for annulment is not in issue.648
1.2It is a remedy that may be availed of by those who are not even parties
to the judgment or to annul even judgments that have been fully
executed.649
2.It is available only on grounds of: (a)
EXTRINSIC FRAUD but
only when it was not availed of or could have been availed of in a motion
for new trial or petition for relief OR (b)
LACK OF JURISDICTION
2.1
There is extrinsic fraud when the unsuccessful party had been
prevented from exhibiting fully his case, by fraud or deception practice
upon him by his opponent, as keeping him away from the court, or where
the defendant never had knowledge of the suit, being kept in ignorance
by the acts of the plaintiff.650
3.The period for its filing if based on extrinsic fraud is within 4 years
from its discovery, or if based on lack of jurisdiction before it is barred
by laches or estoppel.651
FILING / CONTENTS OF THE PETITION
Filing is by verified petition alleging therein with particularity, the facts
and the law relied upon for annulment as well as supporting petitioners
good and substantial cause of action / defense, as the case may be.
Containing (1) certified true copy of judgment / final order / resolution

646 Manipor v Ricafort, 407 SCRA 298
647 Ancheta v Ancheta, 424 SCRA 725
648 Republic v Heirs of Sancho Magdato, 340 SCRA 115
649 Malolos v Dy, 325 SCRA 827
650 Leonardo v ST Best, 422 SCRA 347
113
shall be attached to the original copy intended for the court (2) affidavits
of witnesses (3) certification against forum shopping652
WHAT THE COURT OF APPEALS WILL DO UPON FILING
1.If no substantial merit, it will be dismissed outright with specific
reasons for such dismissal.
2. If prima facie merit be found, it shall be given due course and
summons shall be served on the respondent. IF SO, procedure in ordinary
civil cases shall be followed but reception may be referred to a member
of the Court or a Regional Trial Court judge.653
EFFECT OF JUDGMENT IN A PETITION FOR ANNULMENT
It shall set aside the questioned judgment / final order / resolution and
render the same null and void without prejudice to the refiling of the
original action in the proper court . However, where it is set aside by
reason of extrinsic fraud, the court on motion, may order the trial court to
try the case again as if a timely motion for new trial has been granted
therein.654
The prescriptive period for the refiling of the original action shall be
deemed suspended from the filing of such original action until finality of
the judgment of annulment. HOWEVER, the prescriptive period is or
shall not be suspended where extrinsic fraud is attributable to the plaintiff
is original action.655
SCOPE OF RELIEF
It may include award of damages, attorneys fees and other relief. If
already executed, restitution or other relief as justice / equity may
warrant.656
IF ALSO APPLIES TO A PETITION TO ANNUL JUDGMENT /
FINAL ORDER OF A MUNICIPAL TRIAL COURT BUT IS FILED
WITH REGIONAL TRIAL COURT and treated as an ordinary civil
action.657 All sections except Section 5 pertaining to dismissal or
determination of prima facie merit shall apply.
RULE 65- CERTIORARI / PROHIBITION AND MANDAMUS
WHAT IS CERTIORARI
Special Civil Action against a tribunal board or officer exercising judicial
or quasi-judicial function which is alleged in a verified petition filed by
an aggrieved party to have acted without jurisdiction or in excess of its
jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction, AND there is no appeal, or any plain speedy and adequate
remedy in the ordinary course of law, praying for the judgment
annulling / modifying the proceedings of such, tribunal board officer,
tribunal and granting such incidental reliefs as law and justice may
require.658

114
DISTINGUISHED
CERTIORARI
FROM
PETITION
FOR
REVIEW
ON
Certiorari as distinguished from a Petition for Review on Certiorari: (a)

In the former, the issue iswhether the lower court acted without, in excess
of or with grave abuse of discretion, while in the latter the issue is based
on questions of law (b) in the former, it is addresses an interlocutory
order prior to appeal of a judgment when there is no appeal or any other
speedy or adequate remedy, while the latter involves a review of
judgment/final order/ resolution on the merits (c) the former is filed
within 15 days from notice of judgment / order, while the latter is filed
not later than 60 days from notice of the
resolution sought to be
assailed or denial of a motion for reconsideration (d) the former shall stay
the judgment /final order or award, while the latter does not stay the
order or resolution unless a temporary restraining order or preliminary
injunction is issued (e) In the former, the petitioner/respondent are the
original parties in the case and the lower court is not impleaded, while in
the latter, the aggrieved party is the petitioner against the against the
lower court, agency and the prevailing party (f) the former does not
require the filing of a motion for reconsideration prior to filing, while the
latter requires a motion for reconsideration prior to filing (g) in the
former, the court is exercising appellate jurisdiction, while in latter, it is
exercising original jurisdiction (h) the former can only be filed in the
Supreme court, while the latter may be filed with Supreme Court, Court
of Appeals, or the Regional Trial Court
EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR
RECONSIDERATION PRIOR TO FILING A PETITION FOR
CERTIORARI UNDER RULE 65
(1)order is a patent nullity court a quo has no jurisdiction (2) questions
have been raised in certiorari have been duly raised and passed upon by
lower court (3)urgent necessity for resolution (4)where a motion for
reconsideration will be useless (5)petitioner is deprived of due process,
there is extreme urgency for relief (6) in criminal case, relief from order
of arrest is urgent, and grant of relief by trial court is not probable (7)
proceedings in lower court are a nullity for lack of due process (8) issue
is purely of law or where public interest is involved.
WHAT IS PROHIBITION
Special civil action against a tribunal, corporation, board, or person
exercising JUDICIAL QUASI JUDICIAL MINISTERIAL
FUNCTION which is alleged by an aggrieved party to be acting or about
to act without jurisdiction, in excess of its jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction and there
is no appeal, or any plain, speedy and adequate remedy in the ordinary
course of the law praying that judgment be rendered commanding the
respondent to desist from further proceeding in the action or proceeding
therein or otherwise granting such incidental reliefs as law and justice
may require.659
DISTINGUISHED FROM CERTIORARI
In CERTIORARI the object is to correct the respondents acts by
annulling proceedings, while in PROHIBITION it is to prevent the
commission of an act by stopping proceedings. In the former, the assailed
acts have already been done, while in the latter the assailed acts are about
to be done or are being done. In the former, the respondent performs

115
judicial or quasi- judicial, while in the latter, the respondent performs

judicial, quasi-judicial functions or ministerial functions.
WHAT CONSTITUTES JUDICIAL AND QUASI-JUDICIAL POWER
1.The exercise of judicial function is to determine what the law is, and
what the legal rights of parties are, with respect to a matter is
controversy; and whenever an office is clothed with that authority, and
undertakes to determine those questions, he acts judicially.660
2.A quasi-judicial act or function is a judicial act or function performed
by one who is not a judge.
WHAT CONSTITUTES GRAVE ABUSE OF DISCRETION

Capricious and whimsical exercise of judgment as may be equivalent to
lack or excess of jurisdiction.
WHAT IS MANDAMUS
A special civil action against a tribunal, corporation, board, or officer
alleged in a verified petition filed by an aggrieved party to have
unlawfully neglected the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station, or
unlawfully excluded another from the use and enjoyment of a right or
office to which such other is entitled, and there is no plain, speedy or
adequate remedy in the ordinary course of the law, praying that judgment
be rendered commanding the respondent, immediately or at some other
time specified by the Court to do the act required to be done to protect
the rights of the petitioner, pay damages sustained by reason of the
wrongful acts.
2 ASPECTS OF MANDAMUS
The aspects of Mandamus are: (a) respondent unlawfully neglects the
performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station OR (b) respondent unlawfully
excludes another from the use and enjoyment of a right or office to which
such other is entitled.
1. The legal right of the plaintiff (petitioner) to the thing demanded must
be well defined, clear and certain. The corresponding duty of the
defendant (respondent) to perform the required act must also be clear and
specific.661
2.Mandamus lies only to compel performance of a ministerial duty but
not to compel performance of a discretionary duty.662 In granting
mandamus, respondent is commanded to perform the particular act or
required to be done and to pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent.
3.An act is ministerial when officer or tribunal performs in a given state
of facts, in a prescribed manner in obedience to the mandate of a legal
660 Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260
661 Enriquez, Jr v Bidin, 47 SCRA 183
662 Calderon v Sol, 215 SCRA 876
116
authority without regard to the exercise of his own judgment. If given the
authority to decide how and when, it is discretionary.
4. Mandamus does not lie to correct / enforce contractual obligations.
HOW DISTINGUISHED FROM CERTIORARI/PROHIBITION
In MANDAMUS, the respondent is exercising ministerial power and he
has unlawfully neglected to perform it or excluded a party from
occupying or enjoying the privilege of an office to which he is lawfully
entitled and the object is to COMPEL action, while in CERTIORARI, the
respondent is exercising judicial or quasi-judicial powers without
jurisdiction or with grave abuse of discretion amounting to an excess or
lack of jurisdiction and the object is to CORRECT. In PROHIBITION ,
the respondent is exercising judicial, quasi-judicial or ministerial powers
and he is acting or about to act without jurisdiction or with grave abuse
of discretion amounting to an excess or lack of jurisdiction, and the
object is to PREVENT
WHEN MAY IT BE FILED
Not later than 60 days from notice of the assailed judgment, order or
resolution. BUT if a timely motion for reconsideration is filed, whether
required or not, the 60 days period shall be counted from notice of the
denial of the motion.663 An extension may be granted for compelling
reasons but in no case to exceed 15 days.
WHERE ELSE CAN BE FILED OTHER THAN THE COURT OF
APPEALS
The petition may be filed in the Supreme Court, the Regional Trial Court
if relates to an act / omission of a lower court, corporation, board, officer
or person within its territorial jurisdiction, or the Sandiganbayan, if in aid
of its appellate jurisdiction
IT IS FILED WITH THE COURT OF APPEALS
Whether or not in aid of its appellate jurisdiction, when it involves acts /
omissions of quasi-judicial body, unless otherwise provided.
PARTIES TO BE IMPLEADED
In addition to the public respondents, the petition shall also join the
person/s interested in sustaining the proceedings and it shall be the duty
of the private respondent to appear and defend both in his behalf and that
of the public respondents and cost awarded shall be against private
respondent only.
Unless otherwise directed by the court, the public respondents shall not
appear or file an answer or comment. If elevated to a higher court the
public respondents shall be nominal parties, and unless directed shall not
appear or participate in the proceedings therein.664
ORDER TO COMMENT
If petition is sufficient in form or substance, a comment will be required,
not a motion to dismiss. 665 Orders expediting proceedings / temporary
663 Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC

117
restraining order / injunctions for the preservation of the rights of the

parties may be issued BUT the filing of the petition shall not interrupt the
course of the principal case unless a Temporary Restraining Order or
Injunction is granted enjoining the public respondent from further
proceeding.666
ACTIONS THAT MAY BE TAKEN SUSBEQUENTLY
Court may hear or require filing of memoranda. If it finds the allegations
to be true, it shall render judgment for the relief prayed for or to which
petitioner is entitled.
It may also dismiss if patently without merit, prosecuted manifestly for
delay or issues are too unsubstantial to require consideration. 667 (Section
8)
SERVICE / ENFORCEMENT OF JUDGMENT
Certified copy of judgment shall be served in such manger as the court
may direct and disobedience thereto shall be punished as contempt.
Execution may issue for any damages / cost in accordance with Section
1, Rule 39.668
RULE 66 -QUO WARRANTO
Quo Warranto is a special civil action brought by verified petition in the
name of the Republic of the Philippines against: (a) person who usurps,
intrudes into or unlawfully holds or exercises a public office, positions or
franchise (b) public officer who performs an act that constitutes a ground
fro forfeiture of his office (c) an association that acts as a corporation
within the Philippines without legally being incorporated or without
lawful authority to act.669
1.It literally means by what authority.670
2.An individual can bring a quo warranto action in his name when he is
claiming to be entitled to a public office or position usurped or exercised
by another may bring an action.671
3.A quo warranto action MUST be commenced by the Solicitor General
or Public Prosecutor when directed by the President or upon complaint or
otherwise he has good reason to believe that a cause can be established
by proof.672 If by complaint, a request for indemnity for expenses and
costs may be required to be deposited.673
3.BESIDES the Court of Appeals, the action can be brought before the
Supreme Court, a Regional Trial Court exercising jurisdiction over the
area where the respondent/s reside BUT, if the Solicitor General
commences the action, he may bring it before a Regional Trial Court in
Manila, the Court of Appeals or the Supreme Court.674

670 Tecson v Comelec, 424 SCRA 277
118
4.WHEN FILED: within 1 year from accrual of the cause of action

(ouster or right to hold position) Damages if recoverable must be in
another action filed within 1 year from entry of judgment.675
5.PARTIES and CONTENTS of the petition: When the action is against
the person for usurping a public office, position or franchise, the petition
shall set forth the name of the person who claims to be entitled thereto, if
any with an averment of his right to the same and that the respondent is
unlawfully in possession thereof. All persons who claim to be entitled
may be made parties, and their respective rights may be determined in
the same action.676
6.REDUCTION OF TIME for pleadings and other proceedings may be
directed by the Court to secure the most expeditious determination of the
matters involved therein consistent with the rights of the parties. It can
also take precedence over other civil matters pending before the Court.677
7.A JUDGMENT where the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a public office,
position or franchise shall state that he be OUSTED AND
ALTOGETHER EXCLUDED THEREFROM, and that the rights of the
PETITIONER OR RELATOR, meaning the real party in interest, be
determined as justice requires.678 It can also include a judgment for
costs679
8. The RIGHTS of a person entitled to public office include the right to
demand of the respondent all books and papers in his custody or control
appertaining to the office, otherwise he may be punished for
contempt.680Note: the damages aspect must be brought in another action.
DISTINGUISH BETWEEN QUO WARRANTO AND ELECTION
PROTEST
In QUO WARRANTO the issue is the disqualification / ineligibility of
the proclaimed candidate, in a PROTEST the issue is an irregularity in
the election. If in the former, if the respondent is ineligible, the petitioner
does not occupy the position, while in the latter, the protestant can
occupy the position if he obtains a plurality of the votes.
DISTINGUISH BETWEEN QUO WARRANTO AS TO NATURE OF
POSITION
In quo warranto involving an ELECTIVE POST the issue is the
eligibility of candidate elected, while in that involving an APPOINTIVE
POST the issue is the legality of appointment. In the former, if the
respondent is found ineligible, the found ineligible, 2 nd highest vote
getter, even if eligible cannot be declared elected, while in the latter, the
resolution shall determine who has been legally appointed and declare
who is entitled to occupy the office.
RULE 56 PROCEDURE IN THE SUPREME COURT
ORIGINAL CASES

119
The cases cognizable by the Supreme Court are Certiorari, Mandamus,

Prohibition, Quo Warranto, Habeas Corpus, Disciplinary Actions against
members of the Judiciary and Attorneys, Cases affecting Ambassadors,
Public Ministers or Consuls.681
In resolving the cases, applicable rules in the Court of Appeals are also
applicable in the Supreme Court.682
APPEALED CASES
The only mode of appeal to the Supreme Court is by Petition for Review
on Certiorari, except in criminal cases where penalty is death, reclusion
perpetua, and life imprisonment683 NOTE: Except in appeal of criminal
cases where penalty is death, reclusion perpetua, life imprisonment,
appeal by Notice of Appeal, will be dismissed 684 AND if by certiorari
from the Regional Trial Court to the Supreme Court, raising issues of fact
may be referred to the Court of Appeals for decision or appropriate
action. Determination of the Supreme Court as to whether or not there
are issues of fact is FINAL.
All appealed cases shall be governed by and disposed of in accordance
with the applicable provisions of the Constitution, Rule 45 (Petition for
Review on Certiorari) Rule 48 (Preliminary Conference), Sections 1
(When submitted) 2 (Who renders judgment) and 5 to 11 ( Form to
Execution) Rule 51, Rule 52 (Motion for Reconsideration) and Rule
56.685
GROUNDS FOR DISMISSAL OF AN APPEAL
Motu propio or upon motion of respondent, it may be dismissed on (1)
failure to take appeal within the reglementary period (2) lack of merit (3)
failure to pay docket and lawful fees (4) failure to comply with
requirements of proof of service and documents (5) failure to comply
with any circular, directive or order of the Supreme Court without
justifiable cause (6) error in the choice or mode of appeal (7) that it is not
appealable to the Supreme Court686
IF SUPREME COURT OPINION IS EQUALLY DIVIDED OR
NECESSARY MAJORITY CANNOT BE OBTAINED
It will be deliberated further. If after deliberation, no decision is reached,
the original action commenced in the court shall be dismissed. If
appealed, it shall stand affirmed. If on incidental matters, it shall be
denied.687
PROVISIONAL REMEDIES
RULE 57 PRELIMINARY ATTACHMENT
WHAT IS PRELIMINARY ATTACHMENT

120
It is a provisional remedy issued upon order of the court where the action
is pending to LEVY upon the properties of the defendant therein, the
same to be held thereafter by the sheriff as security for the satisfaction of
whatever judgment might be rendered in favor of the attaching creditor.
It can also extend to property of the defendant in the hands of 3 rd persons
or money owed by 3rd persons to the defendant. This is also known as
GARNISHMENT
If judgment has become final and executory, there is a final attachment
which is also known as Levy on Execution
WHEN CAN IT BE AVAILED OF
At any time before entry of judgment.
DISTINCTIONS BETWEEN PRELIMINARY ATTACHMENT AND
GARNISHMENT
In PRELIMINARY ATTACHMENT there are two parties, the plaintiff
or proper party and the defendant, while inGARNISHMENT, there is an
additional party in the person of the garnishee. In the former, property is
actually seized and a lien is created thereon, while in the latter, there is no
actual seizure.
GROUNDS
1. Action for recovery of money or damages other than moral /
exemplary, on a cause of action that arise from law, contract, quasi
contract, delict, or quasi-delict against a party who is about to depart
from the Philippines with intent to defraud creditors.
2. Action for money or property embezzled or fraudulently misapplied or
converted to his own use by a public officer, an officer of a corporation,
or an attorney, factor, broker, agent or clerk in the COURSE OF HIS
EMPLOYMENT as such, or by any person in a FIDUCIARY
CAPACITY, or for WILLFUL VIOLATION of such duty.
3. Action to recover possession of property unjustly or fraudulently taken,
detained or converted when the property, or any part thereof, has been
concealed, removed or disposed of to prevent its being found or taken by
the applicant or authorized person.
4. Action against a party guilty of fraud in contracting the debt or
incurring the obligation upon which the action is brought or in the
performance thereof.
4.1
The fraud should be committed either upon contracting the debt
or incurring the obligation sued upon or in the performance thereof. A
debt is fraudulently contracted if at the time of contracting it, the debtor
has a preconceived plan or intention not to pay.688
5.Action against a party who has removed or disposed of his property, or
is about to do so, with intent to defraud creditors.
6. Action against a party who does not reside and is not found in the PI or
on whom summons may be served by publication.689
688 FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270
121
HOW APPLIED FOR

1.Generally, by motion or is incorporated in the complaint, accompanied
by an affidavit, containing the following: (a) It is executed by the
applicant / or some person who is aware or personally knows the facts (b)
A sufficient cause of action exists (c) That ground/s as stated in
Section 1 (d) There is no other sufficient security for the claim sought to
be enforced by the action (e)
The amount due the applicant or
value of the property that he is entitled to recover, IS AS MUCH AS THE
SUM for which the ORDER is granted, above all legal counterclaims690
2.A BOND must then be executed to the adverse party in the amount
fixed by the court, CONDITIONED that the latter will pay all costs
which may be adjudged and all damages sustained by reason of the
attachment, if the court shall finally adjudge that the applicant was not
entitled thereto.691
WHEN ISSUED / BY WHOM
Either ex parte or on motion with notice and hearing, by the court in
which action is pending, by the Court of Appeals or the Supreme Court
and must require the Sheriff to attach so much of the property in the
Philppines of the party against whom it is issued NOT EXEMPT FROM
EXECUTION as may be sufficient to satisfy claim UNLESS other party
makes a deposit or gives a bond in an amount equal to that fixed in the
order, exclusive of costs. Note: that several writs may be issued at the
same time to the sheriffs of the courts of different judicial regions. 692
1.IT IS ISSUED EX-PARTE when the ground is justified further by the
fact that the defendant might abscond or dispose of his property before
the writ is issued. It CAN TAKE PLACE even before he is summoned
BUT note that it cannot be enforced unless it is preceded or
contemporaneously accompanied by SERVICE OF SUMMONS,
together with complaint, application for attachment, affidavit, bond,
order and the writ itself. This is the PRIOR OR CONTEMPORANEOUS
RULE. NOTE: An Alias summons belatedly filed cannot be deemed to
have cured the FATAL DEFECT in the enforcement of the writ of
preliminary attachment.693
2.The prior or contemporaneous rule does not apply when: (a)
Summons could not be served personally or by substituted service
despite diligent efforts (b) Defendant is a resident but temporarily out of
the PhiIippines (c)
Defendant is a non-resident of the Philippines
(d) It is an action in rem or quasi in rem
2.1
An IN REM action is directly against the thing to determine
title to or affect its interest, while a QUASI-IN-REM is a proceeding
against the thing for satisfaction a claim against a person by adjudication
of rights against property over which jurisdiction can be obtained
BY WHOM / HOW ENFORCED
1.
By the sheriff, without delay and with all reasonable diligence

693 Mangila v Court of Appeals, 387 SCRA 162
122
1.1
Note that Rule 57 does not provide any lifetime for a writ of
preliminary attachment unlike a writ of execution. 694 What the law
provides are enforcing the writ without delay and making sheriffs return
thereon without delay.
2. He may attach only such property not exempt from execution, as may
be sufficient to satisfy the demand UNLESS defendant makes a deposit
or give a counter bond in an amount equal to the bond fixed by the court
or to the value of the property attached. 695 NOTE: That the attachment
shall proceed nevertheless until there have been proceedings undertaken
to discharge the attachment. If found to be insufficient / or is not filed, a
NEW ORDER OF ATTACHMENT MAY BE APPLIED FOR.696
3.Attachment should be in accordance with the following:
a. If real property, it requires the filing with the Office of the Register of
Deeds of a copy of the order together with notice that property or interest
therein is attached.
b. If personal property capable of manual delivery taking it and safely
keeping it in custody after issuance of proper receipt.
c. If stocks / shares / interest in companies, by leaving with the president
or managing agent a copy of the writ and notice.
d. If debts, credits, bank deposits and other like personal properties not
capable of manual delivery leaving with such persons owing debt,
holding credits or in possession a copy of the writ and notice.
e. If interest is in the estate of a decedent, by virtue of his being an heir,
legatee, or devisee, by serving the writ / notice on executor or
administrator.
f. If in custodia legis copy of writ is filed if the proper court or quasijudicial agency and notice served on the custodian of the property. 697
3.1Effect of attachment of debts, credits and similar personal property
persons who have them are liable to the applicant for the amount of such
credits UNTIL the attachment is discharged, judgment is satisfied or
debts are paid698 (Section 8)
3.2Effect if on property belonging the estate of the decedent, it will not
impair the powers of the executor / administrator or representative BUT
they shall report the attachment to the court when any petition for
distribution is filed and in the order made upon such petition the
property may be awarded to the heir / legatee / devisee , but the property
attached shall be delivered to the sheriff, subject to the claim of the heir,
legatee, devisee or person claiming under him.699 (Section 9)
3.3THERE CAN ALSO BE EXAMINATION OF THESE PERSONS TO
DETERMINE IF THERE ARE PROPERTIES THAT MAY BE
ATTACHED IN THEIR POSSESSION700
694 Roque v Court of Appeals, 93 SCRA 540

123
4.Sheriff shall also make a RETURN without delay, containing full

statement of his proceedings under the writ and a complete inventory of
property attached, together with a copy of a counter-bond if one has been
filed, furnishing copies thereof on the applicant.701
5.Property is to be held and disposed of in the following manner:
a. If judgment is recovered by the attaching party
1.
Paying to obligee proceeds of all sales of perishable property or
others sold pursuant to order of the court as shall be necessary to satisfy
the judgment.
2.
If there is a balance, selling so much of the real or personal
property as may be necessary to satisfy the balance, if enough for that
purpose, remains in the hands of the sheriff or clerk of court. Note that
there can be an EARLY SALE if it is made to appear to the court in
which the action is pending that the property attached is perishable, or
that the interest of all the parties to the action will be subserved by the
sale of the properties at public auction, the proceeds to be deposited with
the court to abide the judgment.702
3. Collecting from all persons having in their possession credits
belonging to the obligor or debts due him
A REPORT / RETURN of all proceedings must be filed with the court
and copies furnished all parties.703
4. If there be a balance, he proceeds to collect as upon ordinary
execution. If there be a surplus, it must be returned.
5. If judgment becomes executory, the surety/ies shall become charged on
the counter-bond and bound to pay the judgment obligee upon demand,
the amount due on the judgment, which amount can be recovered after
notice and summary hearing in the same action.704
6. If money was deposited in LIEU of a bond, it is applied under
direction of the Court and if judgment is against attaching party, the
whole sum deposited is refunded. 705
b.If judgment is for adverse party
1.
All proceeds of sales or money collected by the sheriff and
property attached shall be delivered to the party whose properties were
attached and the order of attachment discharged.
2. Claim for damages before trial, perfection of appeal, or judgment
becomes executory, with due notice to the attaching party and surety
setting forth the facts showing his right to damages in instances where
there is improper, irregular or excessive attachment, are to be awarded
after hearing and is to be included in the judgment in the main case.
2.1
If the judgment favorable to him is rendered by the appellate
court, he must claim the damages during the pendency of the appeal by
filing the application in the appellate court, before the judgment becomes

124
executory. The appellate court may allow the application to be heard and
decided by the trial court.
2.2
NOTHING, likewise, prevents the party against whom
attachment is issued from recovering in the same action the damages
awarded to him from any property of the attaching party not exempt
from execution should the bond or deposit be insufficient.706
WHAT ARE THE REMEDIES OF A PARTY WHOSE PROPERTIES
ARE ATTACHED
1. Discharge the attachment by making a cash deposit or counter bond. 707
NOTE: That bond may be subject to RECOVERY by attaching party;
2. Discharge or set aside the attachment on the ground that it was
improperly issued or irregularly enforced, OR bond is insufficient OR
what has been attached is excessive, the discharge is only for the
excess.708
3. Claim for damages on account of improper, irregular, or excessive
attachment. 709
NOTE: a motion to discharge / dissolve is not allowed if the preliminary
attachment is issued on a ground which is at the same time the
applicants cause of action as that is TANTAMOUNT TO TRIAL ON
MERITS. Example: action for money, property embezzled, party guilty
of fraud in incurring the obligation
WHAT HAPPENS IF PROPERTY IS CLAIMED BY A 3RD PERSON
Claim is to be initiated by affidavit. Upon filing, the sheriff not under
obligation to keep the property, unless attaching party files a bond. No
claim for damages for the taking or keeping of the property may be filed /
enforced against the bond unless the action is filed within 120 days from
date of the filing of the bond. 710
RULE 58 PRELIMINARY INJUNCTION
A Preliminary Injunction isan order granted at any stage of an action or
proceeding prior to judgment or final order, requiring a party or a court,
agency, person to refrain from a particular act or acts. It may also require
the performance of an act, if such it is called a preliminary mandatory
injunction.711
1.Note that Injunction may also exist as a cause of action. This is best
illustrated by the appropriate remedies for obligations to do or not to do.
Obligations to do, the remedy is specific performance. Obligation not to
do, remedy is injunction.
PRIMARY PURPOSE OF INJUNCTION
Is to preserve the status quo or the last actual, peaceable, uncontested
status which precedes the pending controversy.

125
WHO MAY GRANT

Court where the action is pending. If pending in the Court of Appeals or
the Supreme Court, it may be issued by the Court or any member
thereof.712
GROUNDS FOR ISSUANCE
1. The applicant is entitled to the relief demanded, and the whole or part
of the relief consists in restraining the commission / continuance of the
act/s complained of, or in requiring the performance of an act/s, for a
limited period or perpetually.
2.
The commission / continuance / non performance of the act/s
during litigation will probably work injustice to the applicant, OR
3.
That a party, court, agency or a person is doing, threatening, or
is attempting to do or is procuring or suffering to be done, some act/s in
violation of the rights of the applicant respecting the subject of the action
and tending to render judgment ineffectual.713
REQUISITES FOR ISSUANCE OF AN INJUNCTION
1.Existence of a right to be protected
2. Acts against which the injunction is to be directed are violative of the
right
These must clearly appear in the allegations in the complaint
OTHERWISE it may be ground for its outright denial for
INSUFFICIENCY, which is apparent in the application itself OR if
already granted, may be dissolved.714
MAY IT BE ISSUED EX-PARTE
Its issuance requires (1) a hearing (2) reception of evidence with
opportunity to cross (3) finding that prohibited acts are threatened to be
committed or that irreparable injury would be inflicted upon the
applicant.
IF GREAT / IRREPARABLE INJURY WOULD RESULT BEFORE
THEN: the Court BY WAY OF EXCEPTION TO THE RULE ON NON
EX-PARTE ISSUANCE (1) can issue a Temporary Restraining Order for
20 days after a summary hearing OR If it is of extreme urgency, it may
issue ex-parte a 72 hour Temporary Restraining Order. The lifetime of a
Temporary Restraining Order is 20 days if issued by a trial court, 60
days if issued by the Court of Appeals, and until further orders if issued
by the Supreme Court. Note that within the 20 day effectivity period of
the Temporary Restraining Order, the court must order the party or
person to show cause why the injunction should not be granted,
determine also whether or not the preliminary injunction should be
granted, and accordingly issue the order. 715
HOW OBTAINED

126
A preliminary injunction or temporary restraining order is obtained upon

(1) filing of a verified application showing facts entitling the applicant to
the relief demanded, (2) unless exempted, filing of a bond in an amount
fixed by the court, to the effect that applicant will pay all damages that
may be sustained if the court should finally decide that applicant was not
entitled thereto (3) if included in a complaint / initiatory pleading it shall
be raffled only after notice to and in the presence of the adverse party. In
any event, notice shall be preceeded by or contemporaneously
accompanied by service of summons, together with affidavit and bond
(PRIOR OR CONTEMPORANEOUS RULE) but such will not be
applicable if defendant / adverse party cannot be served personally /
substituted service, temporarily absent or is a non-resident. The matter
shall thereafter be acted upon only after all parties are heard in a
summary hearing, conducted within 24 hours after sheriffs return of
service.716
GROUNDS FOR OBJECTION / DISSOLUTION
1.The application may be denied or if granted, dissolved, upon showing
of insufficiency, or while entitled to an injunction, the issuance or
continuance thereof will cause irreparable damage to the person enjoined
while the applicant can be compensated for the damages and a bond is
filed OR if it appears that extent is too great, it may be modified. 717
2.It may also be dissolved on objection to the sufficiency of the bond, or
upon finding of insufficiency, the failure of surety to justify or filing of a
sufficient bond. If it the objection is to the bond of the party enjoined, the
injunction shall be granted or restored. 718
JUDGMENTS OR ORDERS IN INJUNCTION
1.ORDER DISCHARGING IS IMMEDIATELY EFFECTIVE
2. A Final Injunction is granted if it appears that the applicant is entitled
to have the act/s permanently enjoined or confirming the preliminary
mandatory injunction.719
3.Judgments eventually rendered may include damages against a party
and sureties. 720
4.No injunction can issue against the acts of a co-equal court, except in a
3rd party claim where claimant vindicates his right by a separate action.
RULE 59 RECIEVERSHIP
WHEN IS A RECEIVER APPOINTED
1. When it appears from a verified application, and as such other proof as
the court may require, that the party applying for the appointment of a
receiver has an interest in the property or fund which is the subject of the
action or proceeding as such property / fund is in danger of being lost,
removed or materially injured unless a receiver be appointed to
administer and preserve it.
2. When it appears in an action by the mortgagee for the foreclosure of
mortgagee that the property is in danger of being wasted, dissipated or

127
materially injured and that its value is probably insufficient to

discharge the mortgage debt or that the parties have so stipulated in the
mortgage contract.
3. When after judgment, to preserve the property during the pendency of
an appeal, or to dispose of it according to the judgment, or to aid in
execution when the execution is returned unsatisfied or the judgment
obligor refuses to apply his property in satisfaction of the judgment or
otherwise carry the judgment into effect.
4. Whenever in other cases, it appears that the appointment of a receiver
is the most convenient and feasible means of preserving, administering or
disposing of property in litigation.
WHO APPOINTS A RECEIVER
The court where action is pending or the Court of Appeals, the Supreme
Court or a member thereof. During appeal, the appellate court may allow
the application for the appointment to be filed in the court of origin,
which can also decide on the same to be subject to the control of said
court.721
1.A receiver of real or personal property, which is the subject of the
action, may be appointed by the court when it appears from the pleadings
or such other proof as the judge may require, that the party applying for
such appointment has:
(a) an actual interest in it, and (b) that (a) such property is in danger of
being lost, removed, or materially injured; or whenever it appears to be
the most convenient and feasible means of preserving or administering
the property in litigation.722
2.A receiver is a person appointed by the court or by a quasi-judicial
administrative agency, in behalf of all the parties for the purpose of
preserving and conserving the property and preventing its possible
destruction or dissipation, if it were left in the possession of any of the
parties. It is the duty of the receiver to administer the assets of the
receivership estate; and in the management and disposition of the
property committed to his possession, he acts in a fiduciary capacity and
with impartiality toward all interested persons.723
3.A receiver is not an agent or representative of any party to the action.
He is an officer of the court exercising his functions in the interest of
neither plaintiff nor defendant, but for the common benefit of al the
parties in interest. He performs his duties subject to the control of the
Court, and every question involved in the receivership may be
determined by the court taking cognizance of the receivership
proceedings. Thus, unauthorized contracts of a receiver do not bind the
court in charge of receivership. They are the receivers own contracts
and not recognized by the court as contracts of the receivership. 724
WHAT ARE THE POWERS OF THE RECIEVER
Subject to the control of the court, HE CAN: (a)Bring and defend actions
in his own name (b)Take and keep possession of the properties in
controversy (c)To receive rent (d)Collect debts, including power to
compound and compromise them, to pay debts (e)Make transfers (f)

722 Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
723 Arranza versus B.F. Homes, Inc., 333 SCRA 799
724 Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564
128
To divide money or other property (g) Other acts as may be authorized

by the court
1. Funds though may only be invested by order of the court upon written
consent of all parties. No action may be filed by or against the receiver
without leave of court to prevent harassment.725
2.Should there be refusal / neglect to deliver property to a receiver it is
punishable by contempt and shall be liable for the money or value of the
property, plus damages sustained as a consequence of the refusal /
neglect.726
HOW APPLIED FOR
1.By verified application. Note that more than 1 receiver may be applied
for and appointed by the court. NOTE: That receivership may be a
principal action or an ancillary remedy.
2. If application is granted the receiver shall await the filing by the
applicant of a bond executed to the party against whom the application is
presented in an amount fixed by the Court to the effect that the applicant
will pay such party all damages that he may sustain by reason of the
appointment in case the same has been procured without SUFFICIENT
CAUSE and the court in its discretion may require an additional bond
to be filed as further security for damages.727
3.The APPLICATION may be denied or receiver discharged when the
adverse party files a bond executed to the APPLICANT to the effect that
such party will pay to the applicant all damages he may suffer by reason
of acts, omissions or other matters specified as grounds in the application
If may also be discharged if it is shown that appointment was obtained
without sufficient cause.728
4.BEFORE entering upon his duties, the receiver shall be sworn to
perform them faithfully and shall file a bond executed to such person and
in amount fixed by the court, to the effect that he will faithfully discharge
his duties and obey orders from the Court.729
5.Copies of bonds ( Applicant and Reciever OR Adverse Party) shall be
served on each interested party who may except to its sufficiency or the
surety. If found to be insufficient or is not justified and a bond sufficient
in amount and surety is not filed, the application shall be denied and the
receiver discharged. If adverse partys bond is the one excepted to or
found insufficient, the receiver shall be appointed or reappointed as the
case may be.730
WHEN TERMINATED
When the court, motu propio or upon motion, shall determine that the
necessity for a receiver no longer exists, it shall alter due notice, settle all
accounts, direct delivery of the funds / property in his possession to the
person adjudged to be entitled to receive them and order the discharge of
the receiver from further duty. He is to be allowed compensation as

129
circumstances will warrant to be taxed against defeated party or

apportioned as justice may require.731
Any judgment may include the amount, if any, to be awarded any party
upon any bond.732
RULE 60 REPLEVIN
WHAT IS REPLEVIN
It is a form of a principal remedy and provisional remedy / relief. It is
also a mixed action partly in rem as far as the claim for recovery of
personal property and in persona as far as the claim of damages, the
object of which is recovery of possession of personal property applied
for at the commencement of the action or at any time before answer by
the party praying for recovery of personal property.733
HOW
1.Filing of Affidavit containing the following: (a) that applicant is the
owner of the property claimed, particularly describing it, or is entitled to
possession of the same (b)that property is a wrongfully detained by the
adverse party, alleging the cause of detention according to the best of his
knowledge, information or belief (c) that property has not been distrained
or taken for a tax assessment or payment of fine or seized under
execution, preliminary attachment or in custodia legis, or if so seized, it
is exempt from seizure / custody (d) actual market value NOTE: Not the
probable value as declared by the applicant. Should there be a dispute, it
is to be resolved by the Court.
2. Filing of bond in double the value of the property for return of the
property to the adverse party and payment of such sum as he may recover
from the applicant
3. UPON FILING OF AFFIDAVIT AND BOND, the writ of replevin
shall issue requiring the sheriff to forthwith take the property in
custody.734
3.1IN TAKING CUSTODY if concealed, he may demand delivery, if
not delivered, he may cause the building / enclosure to be broken. Once
in possession, it must be kept in a secure place and shall be responsible
for its delivery to the party entitled thereto upon receipt of his fees and
expenses.735
REMEDIES FOR RETURN OF PROPERTY
1.Objection to the sufficiency of the bond / surety but he cannot
immediately require delivery OR at any time before delivery to the
applicant, by filing a bond (redelivery bond) executed to the applicant in
double the value of the property as stated in the applicants affidavit.
MANNER OF DISPOSITION BY SHERIFF
1.
If within 5 days after taking of the property, the adverse party
does not object to sufficiency of the bond / sureties OR he objects and
the court affirms its approval of the bond or approves a new bond OR if

130
he requires return but his bond is objected to (adverse party) and he does
not forthwith file an approved bond THE SHERIFF SHALL DELIVER
THE PROPERTY TO THE APPLICANT IF FOR ANY REASON IT
IS NOT DELIVERED, IT MUST BE RETURNED TO ADVERSE
PARTY.736
2. If claimed by a 3 rd PARTY by affidavit, the sheriff is not bound to
keep and deliver the property unless applicant / agent on demand of the
sheriff files a bond approved by the Court to indemnify the 3 rd party
claimant in a sum not less than the value of the property under replevin.
In case of disagreement as to value, the court shall determine the same.
Note that no action on the bond may be enforced unless filed within 120
days from filing.
The sheriff shall not be liable for damages for the taking and keeping of
the property to any such 3rd party if the bond is filed. Nothing also
prevents the 3rd party claimant or the applicant from vindicating their
rights or claims in the same action or in a separate action.
If writ is issued in the name of RP, no bond is required and the sheriff
is to be represented by the SOLGEN and damages so adjudged are paid
out of the National Treasury. 737
3.SHERIFF must make return within 10 days after taking of the
property.738
4.The JUDGMENT BY THE COURT shall include a determination who
has a better right of possession to and value of the property and render
judgment in the alternative for delivery thereof to the party entitled or its
value in case delivery cannot be made, and also for damages as either
party may prove, with costs. Any amount awarded a party upon any bond
shall be claimed, ascertained and granted as provided by Section 20 of
Rule 57.739
5.A WRIT OF REPLEVIN may be served anywhere in the PI
RULE 61 SUPPORT PENDENTE LITE
WHEN FILED AND HOW
At the commencement of the proper action or proceeding or at any time
prior to a judgment or final order a verified application may be filed by
a party stating the grounds for the claim and the financial conditions of
both parties, accompanied by affidavits, depositions, or other authentic
documents in support thereof.740
1.It is also available in criminal cases when: (a) child is born to offended
party allegedly because of the crime (b) civil liability arising from the
criminal action includes support for the offspring (c) civil aspect has not
been waived, reserved or instituted prior to filing of criminal action. This
application may be filed successively by the offended party, her parents,
grandparents, guardian or the State in the corresponding criminal case
during its pendency.741

131
PROCEDURE:
1. Upon filing of verified application it shall be served on the adverse
party, who shall have 5 days to comment unless a different period is fixed
by the court. It shall also be verified and accompanied by affidavits,
depositions, authentic documents.742
2. Hearing shall then be conducted no more than 3 days after comment is
filed or the period expires.743
3. Court shall determine provisionally the pertinent facts and render such
orders as justice and equity may require, having due regard to the
probable outcome of the case and such other circumstances.
3.1
IF GRANTED, it shall fix the amount of money to be
provisionally paid or such other forms or support as should be provided
taking into account the necessities of the applicant AND resources or
means of the adverse party AND the terms or mode for providing
support.
3.2
IF DENIED, the principal case shall be tried and decided as
early as possible.744
HOW ENFORCED
If adverse party fails to comply, the court shall, motu propio or on
motion, issue an order of execution without prejudice to his liability for
contempt. ALSO, if support be paid by a 3 rd person, after due notice and
hearing in the same case, he may obtain a writ of execution to enforce his
right of reimbursement against the person ordered to provide support.745
RESTITUTION
IF upon judgment / final order The court finds that the person who has
been providing support is not liable therefor it shall order the recipient
to return the amounts paid plus interest from dates of actual payment
without prejudice to the right of the recipient to obtain reimbursement in
a separate action from the person legally obliged to give support. Should
the recipient fail to reimburse, the person who provided the same, may, in
a separate action, seek reimbursement thereof from the person obliged to
give support.746
SPECIAL CIVIL ACTIONS
RULE 62 - INTERPLEADER
WHEN PROPER
Whenever conflicting claims upon the same subject matter are or may be
made against a person who claims no interest whatever in the subject
matter, or an interest which in whole or in part is not disputed by the
claimants, he may bring an action against the conflicting claimants to
interplead and litigate their several claims among themselves.747
PROCEDURE:

132
1. Upon filing of the complaint, the court shall issue an order requiring
the conflicting claimants to interplead with one another. If the interest of
justice requires, it may order the subject matter be paid or delivered to
the court.748
2. Summons shall then issued to claimants, together with a copy of the
complaint and order.749
3. Within the time for the filing of an answer, motions to dismiss may be
filed, if denied the claimant must file an answer within the period
remaining but in no case less than 5 days. If not, he may be declared in
default and thereafter the court may render judgment barring him from
any claim in respect of the subject matter. They may also file counterclaims, cross-claims, 3rd party claims, and other responsive pleadings.750
4. After the pleadings of the conflicting claimants have been filed, pretrial conducted, the court shall proceed to determination and adjudication
of their respective claims. The docket and other lawful fees paid by a
party who filed the complaint, as well as costs / expenses of litigation
shall constitute a lien or charge upon the subject matter, unless the court
orders otherwise.751
RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES
WHAT IS DECLARATORY RELIEF
It is a special civil action brought before the Regional Trial Court ONLY
by a person interested in a DEED, WILL, CONTRACT or OTHER
WRITTEN INSTRUMENT, or whose rights are affected by a STATUTE,
EXECUTIVE ORDER OR REGULATION, ORDINANCE or any
government regulation BEFORE BREACH THEREOF, asking the court
to DETERMINE ANY QUESTION OF CONSTRUCTION OR
VALIDITY arising, and for a declaration of his rights OR duties
thereunder.752
1.ACTIONS for REFORMATION OF INSTRUMENT, TO QUIET
TITLE OR REMOVE CLOUDS THEREFROM, or to CONSOLIDATE
OWNERSHIP UNDER Art 1607 NCC may be brought as civil actions
for declaratory relief.
2. NOTE THAT AN ACTION FOR DECLARATORY RELIEF may be
brought only before a breach / violation of the statute or instrument. If
already brought AND a breach / violation is committed before final
termination, it is converted into an ordinary civil action. The parties may
then file such pleading as may be necessary or proper.753
WHO ARE THE ALLOWED PARTIES
1.All persons who have or claim an interest which would be affected by
the declaration shall be made parties and NO DECLARATION shall as
except as otherwise provided in these RULES prejudice the rights of
persons not parties to the action.

133
2. If involving validity of a statute, executive order, regulation, or any

other government regulation. The solicitor general shall be notified and is
entitled to be heard upon such question.754
3.If local government ordinance, the corresponding attorney / prosecutor
of the Local Government Unit shall be similarly notified and heard. If
alleged to be unconstitutional, the Solicitor General shall be notified and
heard.755
ACTION BY THE COURT
Except in actions falling under the 2nd paragraph of Section 1, the court,
motu propio, or on motion, may refuse to exercise the power to declare
rights and to construe instruments in any case WHERE A DECISION
WOULD NOT TERMINATE THE CONTROVERSY ON
UNCERTAINTY THAT GAVE RISE TO THE ACTION, or in any case,
WHERE THE DECLARATION / CONSTRUCTION is not
NECESSARY and PROPER under the circumstances.756
RULE 64 REVIEW OR JUDGMENTS / FINAL ORDER OF THE
COMELEC AND COA
A judgment / final order of COMELEC / COA is to be brought by the
aggrieved party to the Supreme Court under Rule 65 but the period for
filing is 30 days from notice of the judgment or final order sought to be
reviewed. The filing of a motion for new trial / recon if allowed under the
procedural rules of the COMELEC / COA will toll the period. If denied,
the aggrieved party only has the remaining period which is no case shall
be less than 5 days in any event, reckoned from notice of denial.757
1.Note that only judgments/final orders of the COMELEC en banc can be
brought to the SC. What is exercised is the power of review.
2. The bringing of a petition, shall not stay the execution of the judgment,
final order or resolution unless directed otherwise by the Supreme
Court.758
RULE 67 EXPROPRIATION
SEE RP vs. Gingoyon GR 166429, Jan 14, 2005
Rule 67 contemplates two (2) separate final orders, namely:
order of expropriation (Section 4, Rule 67) and
order of just compensation (Section 8, Rule 67).
An expropriation suit is incapable of pecuniary estimation and falls
within the jurisdiction of the Regional Trial Courts. (Barangay San
Roque vs. Heirs of Francisco Pastor, 334 SCRA 127).
Public purpose which will justify expropriation of property generally
means such activity which will serve as convenience, safety, welfare,
advantage, or benefit to the entire community, and not to a particular
individual, class or group of persons.
Public use is one which confers some benefit or advantage to the public.
It is not confined to actual use by the public. It includes the right of use

757 Supra, Sections 1,2, and 3, Rule 64
134
by the public, whether it is exercised by one or some or many members

of the public.
Public use contemplates indirect public benefit or advantage (Estate of
Salud Jimenez vs. Phil. Export Processing Zone, 349 SCRA 240). It
must be considered in its general concept of meeting a public need or a
public exigency. Manosca vs. CA, 252 SCRA 412).
At present, whatever may be beneficially employed for the general
welfare satisfies the requirement of public use. (Reyes vs. NHA, 395
SCRA 494).
WHAT IS EXPROPRIATION
The taking of private property for public purpose upon the payment of
just compensation. It is also known as exercise of the power of eminent
domain.
HOW EXERCISED
Filing of a verified complaint which shall state with certainty the right
and the purpose of expropriation, describing the real / personal property
sought to be expropriated, joining as defendants all persons claiming /
owning or occupying any part thereof or interest therein. Note that the
subject can be either real / personal property.759
WHERE FILED
Regional Trial Court, regardless of value as it is an action which is
incapable of pecuniary estimation.
UPON FILING, MAY PLAINTIFF TAKE POSSESSION
Plaintiff, upon making a deposit in or with an authorized government
depository of an amount equal to the assessed value of the property for
purposes of taxation may take possession of the real property. If it
involves personal property, its value as provisionally ascertained.760
1.Note that under Section 19 of the Local Government Code, the LGU
can take possession upon deposit with the court of FIFTEEN
PERCENT of the Fair Market Value based on the current tax declaration.
UPON FILING AND SERVICE
1. The DEFENDANT MAY FILE: (a)
A Manifestation that he has
no objection or defense to the action, OR (b) An Answer stating all
objections and defenses to the taking of the property. No, counterclaim,
cross claim or 3rd party complaint shall be allowed in the answer or any
subsequent pleading.761
2.AFTER, the case now proceeds to a determination of:
2.1
Authority of the plaintiff to expropriate. Thereafter, the court
may dismiss the petition or issue an order of expropriation. The order is
appealable BUT SHALL NOT PREVENT DETERMINATION OF JUST
COMPENSATION,IF GRANTED AND PLAINTIFF CANNOT

135
DISMISS OR DISCONTINUE EXCEPT ON TERMS THAT COURT

DEEMS JUST AND EQUITABLE as there is entry already.762
2.2NOTE the right of plaintiff to enter into the property and appropriate
shall not be DELAYED by an APPEAL. But if appellate court determines
that no right of expropriation exists. It shall order the RTC to enforce
restoration and determine the damages that the defendant sustained. 763
3. Just compensation is then determined by no more than 3 court
appointed commissioners. If the Court accepts their report, it will render
judgment based thereon. Such judgment is also appealable.764
3.1IF upon determination of just compensation, the ownership is
uncertain or claims are conflicting, the court may order sum / sums paid
to be given to the Court for the benefit of the person adjudged in the
same proceeding to be entitled thereto BUT, payment will be required to
be given to the defendant or the court before plaintiff can enter into or
retain the property.765
4.The JUDGMENT shall state definitely, by an adequate description, the
particular property or interest therein expropriated and the nature of the
public use or purpose for which it is expropriated, a certified copy of
which judgment shall be recorded in the registry of deeds and its effect
shall to be shall to be vest in the plaintiff title to the real estate for public
use or purpose.766
RIGHT OF PLAINTIFF UPON PAYMENT / TENDER
The plaintiff shall have the right to enter into the property and
expropriate for public use or retain it if already entered. If defendant or
counsel absent themselves from the court or decline to receive the
amount, it shall be deposited in the court and shall have the effect of
ACTUAL PAYMENT.767
WHO PAYS FOR COSTS
All costs, except that incurred by rival claimants, shall be paid by the
plaintiff unless an appeal is taken therefrom by the owner of the property
and the judgment is affirmed. Costs shall include the fees of the
commissioners.768
RULE 68 FORECLOSURE OF REAL ESTATE
WHAT SHOULD BE STATED IN THE COMPLAINT/PETITION
The complaint in foreclosure of a mortgage or other encumbrance shall
set forth: (a)Date and due execution of the mortgage (b)Its assignments,
if any (c)Names/residences of mortgagor/mortgagee (d)Description of
the mortgaged property (e)Statement of the date of the note or other
documentary evidence of the obligation secured by the mortgage
(f)Amount claimed to be unpaid (g)Name/residences of persons having

764 Supra, Sections 5,6,7, and 8, Rule 67
136
or claiming an interest in the property subordinate in right to that of the

holder of the mortgage, all of whom shall be made defendants.769
WHAT COURT CAN DO
After trial, if the court shall find the facts to be true, it shall ASCERTAIN
THE AMOUNT DUE THE PLAINTIFF AND RENDER JUDGMENT
FOR THE SUM WITH AN ORDER FOR IT TO BE PAID BY
ADVERSE PARTY TO THE COURT OR JUDGMENT OBLIGEE
WITHIN A PERIOD OF NOT LESS THAN NINETY (90) DAYS NOR
MORE THAN ONE HUNDRED TWENTY DAYS (120) FROM
ENTRY OF JUDGMENT, AND THAT IN DEFAULT, THE PROPERTY
SHALL BE SOLD AT PUBLIC AUCTION. This period is known as
MORTGAGORS EQUITY OF REDEMPTION. 770
DISTINGUISHING EQUITY OF REDEMPTION FROM RIGHT OF
REDEMPTION
Equity of Redemption is the equitable right of the mortgagor to redeem,
while Right of Redemption is the statutory right of the mortgagor to
redeem. The former is available before auction sale, while the latter is
available after auction sale. The former is available only judicial
foreclosure, while the latter is available only in extra-judicial foreclosure,
but by exception is allowed in judicial foreclosure when the mortgagee is
the PNB or a bank or a banking institution. The period for the exercise of
the former is within 90 days but no more than 120 days from entry of
foreclosure judgment, while in the latter it is one year from redemption is
within one year from date of registration of the sheriffs certificate of
sale, except when the mortgagor is a juridical person, in which case, the
right to redeem must be exercised until, but not after, the registration of
the certificate of sale with the applicable register of deeds which in no
case shall be more than three months after foreclosure, whichever is
earlier.771
WHAT HAPPENS IF NOT PAID
1.Upon motion, the court shall order the property sold in the manner
prescribed under Rule 39, such SALE shall not affect the rights of
persons holding prior liens/encumbrances on the property or parts
thereof.
2. Upon motion, sale shall be CONFIRMED, and such shall operate to
divest the rights in the property of all the parties to the action and to vest
their rights in the purchaser, subject to such rights of redemption as may
be allowed by law.
2.1
Note that when judicial foreclosure is resorted to there is no
right of redemption EXCEPT when the law allows a redemption.
EXAMPLE: Section 47 of the Philippine General Banking Law which
allows a one year period for redemption.
3. Upon finality of the order of confirmation or upon expiration of the
period of redemption when allowed by law, the purchaser at auction is
entitled to possession unless a third party is holding it adversely to the

771 Section 47, Philippine General Banking Law
137
judgment obligor, in which case, the purchaser at the auction sale may
secure a writ of possession from the Court ordering the sale.772
3.1What is to be registered is the order of confirmation. If there is no
right of redemption, the title of the mortgagor is cancelled and a new one
issued in the name of the purchaser.
3.2
If with right of redemption, the annotation is to await final deed
of sale executed by Sheriff.773 (Section 7)
4.PROCEEDS OF THE SALE shall, after deducting the costs, be paid to
the persons foreclosing the mortgage. If there be a balance or residue, it
shall be paid to the junior encumbrancers, in the order of priority
ascertained by the Court, if none or there still be a balance or residue
after payment, to the mortgagor.774
5.If debt is not all due, as soon as a sufficient portion of the property has
been sold to pay the total amount, the sale shall terminate. Afterwards, no
more shall be sold, BUT if property cannot be sold in portions, the entire
property is to be sold with rebate of interest if proper when the full debt
is paid.775
6.Deficiency judgments, if there is a balance, upon motion, the court
shall render judgment against the defendant for the balance, upon which
execution may issue. If balance is due at the time of rendition of
judgment OR at such time as the remaining balance becomes due under
the terms of the original contract, which time shall be stated in the
judgment.776
7.Note that the provisions of Section 31 as to use of premises by obligor,
Section 32 as to rents still due the obligor, and Section 34 as to recovery
of price if sale is not effective of Rule 39 are applicable as far as the
former are not inconsistent.777
RULE 69 PARTITION
OBJECT OF PARTITION
Separate, divide and assign a thing that is held in common among those
to whom it may belong. The remedy may be availed of regardless of
whether it involves real or personal property, or both
WHO CAN FILE AND HOW
Any person, having the right to compel partition of real estate may file,
setting forth therein the nature and extent of his title, adequate
description of the property, joining as defendants all other persons
interested in the property.778
1.An action for partition and accounting under Rule 69 is in the nature of
a quasi in rem779.
PROCEDURE

779 Valmonte v Court of Appeals, 52 SCRA 92
138
1.
If after trial, it finds for the plaintiff, it will order partition.
Thereupon, if they AGREE, the parties may undertake the partition
among themselves by proper instruments. The court shall thereupon
confirm the partition so agreed by the parties. Such partition and order of
confirmation shall then be recorded in the registry of deed of the place
where the property is situated.
A final order decreeing partition and accounting may be appealed by the
party aggrieved thereby.780
2. If they fail to agree, the Court shall appoint not more than 3
commissioners, commanding them to set-off to the plaintiff and each
party in interest such part and proportion of the property as the court will
direct.781
2.1Before discharging their duties, the commissioners shall take an oath
that they will faithfully discharge their duties, and in so doing they shall
view and examine the real property , shall hear the preferences of the
parties, determine the comparative value of the property, and shall set
apart the same to the parties in lots or parcels as will be most
advantageous and equitable, having due regard to the improvements,
situation and quality of the different parts thereof.782
2.2If the property cannot be divided without prejudice to the interest of
the parties, the court may order it assigned to one of the parties willing to
take the same, provided he pays to the other parties such amount as
determined by the commissioners to be equitable, unless one of the
interested parties asks that the property be sold instead.783
2.3A report should thereupon be made by the commissioners and filed
with the court, which shall then give the parties 10 days within which to
file heir objections to the findings. No proceeding shall pass title to the
property or bind the parties until the court shall have accepted the report
and rendered judgment thereon. Note though that the court has the option
to accept or re-commit the matter to the commissioners. 784
3.If actual partition of the property is made, judgment shall state
definitely the metes and bounds and adequate description of the property,
the particular portion allocated to each party and its effect is to vest to
each party in the action in severalty the portion of real estate assigned to
him. If the whole property is assigned to one after payment to the others,
judgment has the effect of vesting in the party making payment the whole
of the real estate free from any interest of the other parties. If the
property is sold and proceeds divided, judgment has the effect of vesting
the property or portion sold in the purchaser free from any interest of the
parties to the action.785Judgment may include recovery from the other of
just share of rents and profits received by the other from the real estate in
question786 and costs equitably apportioned among the parties.787

139
DISTINGUISHING BETWEEN ORDER OF PARTITION AND

JUDGMENT OF PARTITION
The Order of Partition finding that plaintiff is entitled to partition, and
after which, if the parties agree, they may partition subject to
confirmation by the court, while Judgment of Partition is the judgment
rendered pursuant to the commissioners report after it is accepted by the
court. BOTH THOUGH ARE APPEALABLE
RULE
70DETAINER
FORCIBLE
ENTRY,
ILLEGAL/UNLAWFUL
WHAT IS FORCIBLE ENTRY

An action brought when a person is deprived of possession of
land/building by FORCE, INTIMIDATION, THREAT, STRATEGY, OR
STEALTH.
140
WHAT IS UNLAWFUL DETAINER

An action brought by a lessor, vendor, vendee or other person against
whom possession of land/building is unlawfully withheld after expiration
or termination of the right to hold possession, by virtue of a contract,
express or unpaid. Such action must be brought within one year after
withholding such possession. Also known as an accion interdictal which
seeks to recover possession de facto or physical, actual or material
possession.
Note that it is the character or nature of the defendants possession which
will determine which of the two actions is appropriate.
UNLAWFUL DETAINER OR FORCIBLE ENTRY OR ACCION
INTERDICTAL DISTINGUISHED
From Accion Publiciana which is a plenary action to recover right of
possession that is brought after one year from accrual of the cause of
action in a Regional Trial Court and Accion Reivindicatoria which is an
action to recover ownership, including possession.
Note: In addition to restitution of possession, damages and costs may
also be recovered.788
WHAT IS REQUIRED FOR THE ACTION TO BE FILED
1.In Illegal Detainer ,unless otherwise stipulated, the lessor can proceed
against lessee only after demand to pay or comply with the conditions of
the lease and to vacate is made upon the lessee, or by serving written
notice of such demand upon the person found within the premises, or by
posting such notice on the premises if no person is found thereon and the
lessee fails to comply within 15 days in the case of land or 5 days in case
of building.789
1.1If action is terminate the lease due to the expiration of its term,
demand is not a prerequisite.790
2.No demand is required in Forcible Entry cases.

WHEN, WHERE FILED AND NATURE OF PROCEEDINGS
Cases of Forcible Entry/Unlawful Detainer are to be filed within one year

from date of actual entry or date of last demand before the Municipal
Trial Court and shall be covered by the Rules on Summary Procedure,
irrespective of the amount of damages or unpaid rentals, unless they are
covered by agricultural tenancy laws or otherwise provided by law.791

790 Lanuza v Munoz, 429 SCRA 562
141
PROCEDURE TO BE FOLLOWED
1.The only allowable pleadings are the complaint, compulsory
counterclaim and cross-claim pleaded in the answers and answers
thereto. All pleadings are to be verified.792
2.Upon filing of the complaint, the court may, from an examination of the
allegations in the complaint and such evidence attached thereto, dismiss
the complaint on any of the grounds for a motion to dismiss which are
apparent therein. If not dismissed, it shall proceed to issue summons.793
3.If summons is issued, the defendant shall file his answer within 10 days
from receipt, serving a copy thereof to the plaintiff. Affirmative or
negative defenses not pleaded are deemed waived, except lack of
jurisdiction over the subject matter. Crossclaims or counterclaims not
asserted are barred. If the answer contains crossclaims or counterclaims,
answers thereto are to be filed within 10 days from service of the answer
in which they are pleaded.794
4.Failure to answer the complaint within the period above provided, the
court, motu proprio, or on motion of the plaintiff, shall render judgment
as may be prayed for therein: Provided, however, That the court may in
its discretion reduce the amount of damages and attorneys fees claimed
for being excessive or otherwise unconscionable. This is without
prejudice to the applicability of Section 3, Rule 9 of the Rules of Court, if
there are two or more defendants.795
5.A preliminary conference is then scheduled not later than 30 days after
the last answer is filed. The provision of Rule 18 on pre-trial shall be
applicable to the preliminary conference unless inconsistent with the
provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall
be a cause for the dismissal of his complaint. The defendant who appears
in the absence of the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Section 6 hereof. All cross-claims shall
be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to
judgment in accordance with Section 6 hereof. This Rule shall not apply
where one of two or more defendants sued under a common cause of
action who had pleaded a common defense shall appear at the
preliminary conference.
792 Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b), Rules on Summary Procedure
793 Supra, Section 5, Rule 70, Article II, Section 4, Rules on Summary Procedure
142
No postponement shall be granted except for highly meritorious

grounds and without prejudice to sanctions which the court may deem to
impose.796
6. Within 5 days after the termination of the preliminary conference, an
order shall be issued by the court stating the following matters: (a)
Whether the parties have arrived at an amicable settlement, and if so, the
terms thereof (b)The stipulations or admissions entered into by the
parties (c) Whether, on the basis of the pleadings and the stipulations
and admissions made by the parties, judgment may be rendered without
the need of further proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the order (d) A clear
specification of material facts which remain controverted; and (e) Such
other matters intended to expedite the disposition of the case. 797
7.Within 10 days from receipt of the order, the parties shall submit the
affidavits of their witnesses, evidences and position papers setting forth
the law and the facts relied upon.798 The affidavits submitted shall only
state the facts of direct personal knowledge of the affiant which are
admissible in evidence and must indicate their competence to testify. A
violation may subject the party or counsel to disciplinary action and will
be cause to expunge the inadmissible affidavit or portion thereof from the
record.799
8.The following petitions, motions, or pleadings are PROHIBITED and
shall not be allowed to be filed:
(a) Motion to dismiss the complaint except on the ground of lack of
jurisdiction over the subject matter, or failure to comply with the
preceding section pertaining to referral to the Lupon for conciliation.
The case may then be dismissed WITHOUT PREJUDICE and may be
revived upon showing of compliance. 800 The filing of a motion to
dismiss after an answer is filed does not violate the rules. What is
proscribed is a motion to dismiss that stops the running of the period for
the filing of an answer and cause undue delay.801
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for
reopening of trial;
(e) Motion for extension of time to file pleadings, affidavits or any
other paper;
(f) Memoranda;
800 Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
801 Heirs of Olivas v Flor, 161 SCRA 393
143
(g) Petition for certiorari, mandamus, or prohibition against any

interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.802
9.Note that a PRELIMINARY MANDATORY INJUNCTION may be

granted by the court upon motion presented within 5 days from the filing
of the complaint to restore him in possession, which should be decided
by the court within 30 days from filing thereof 803 AND upon motion of
the plaintiff, within 10 days from perfection of an appeal to the Regional
Trial Court to restore him in possession if the court is satisfied that the
appeal of the defendant is FRIVOLOUS or DILATORY, or that his
(plaintiffs) appeal is prima facie meritorious.804
10.The court shall then render judgment within 30 days after receipt of
the last affidavits and position papers, or the expiration of the period for
filing the same.
However, should the court find it necessary to clarify certain material
facts, it may, during the said period, issue an order specifying the matters
to be clarified, and require the parties to submit affidavits or other
evidence on the said matters within ten (10) days from receipt of said
order. Judgment shall be rendered within fifteen (15) days after the
receipt of the last clarificatory affidavits, or the expiration of the period
for filing the same.
The court shall not resort to the clarificatory procedure to gain time for
the rendition of the judgment.805
11.Should the defense of OWNERSHIP be raised, the court shall only
consider the same if the issue of possession cannot be resolved without
deciding the issue of ownership. It shall thus be resolved only to
determine possession and any judgment shall be conclusive only on
possession and shall not be a bar to another action between the parties
respecting the title to the land or building806
12.The judgment to be rendered by the court in favor of the plaintiff shall
include restitution of the premises, the sum justly due as arrears of rent or
802 Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure
803 Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure
805 Supra, Section 11, Rule 70, Article
144
as reasonable compensation for the use of the premises, attorneys fees

and costs. If the allegations are not true, it shall render judgment for the
defendant for recovery of cost. If a counterclaim is established, the court
shall render judgment for the sum found in arrears from either party and
award costs as justice requires.807 The judgment is APPEALABLE to the
appropriate Regional Trial Court, which shall decide the case on the basis
of the entire record of the proceedings in the court of origin and such
memoranda or brief as may be submitted or required808
Note the ruling in the case of Azcuna Jr. vs. CA, GR No. 116665, March
20, 1996 allowing recovery of liquidated damages.
13.If judgment is rendered against the defendant, the execution shall

issue immediately upon motion, unless an appeal has been perfected
AND the defendant to stay execution files a sufficient supersedeas bond
if there are rentals in arrears809, approved by the court and executed in
favor of the defendant to pay rents, damages and costs accruing down to
the time of the judgment appealed from, AND UNLESS, during the
pendency of the appeal, he deposits with the appellate court the amount
of the rent due from time to time under the contract or the reasonable
value for use and occupation adjudged by the court on or before the 10 th
day of each succeeding month or period.810
Note that there is no necessity for a motion for the court to fix the
supersedeas bond as the amount of the same can be ascertained from the
judgment. Also, if the records of the case have already been transmitted
to the appellate court, the supersedeas bond may be filed with the
appellate court.811
14.The judgment of the appellate court shall however be subject to
immediate execution without prejudice to a further appeal812
SALIENT PORTIONS OF KATARUNGANG PAMBARANGAY LAW

All DISPUTES require conciliation except in the following: (1) where
one party is the government or any subdivision or instrumentality thereof
(2) where one party is a public officer or employee, and the dispute
relates to the performance of his official functions (3) offenses
punishable by imprisonment exceeding 1 year or a fine exceeding P
5000.00 (4) offenses where there is no private offended party (5) where
the dispute is brought by or against a corporation, partnership or juridical
entity (6) where the dispute involves real properties located in different
cities or municipalities UNLESS the parties agree to submit their
differences to amicable settlement by an appropriate lupon (7) where
dispute involves parties who actually reside in barangays of different

809 Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146
811 Chua v Court of Appeals, 286 SCRA 437
145
cities or municipalities, EXCEPT when the barangays actually adjoin

each other and the parties agree to submit their differences to amicable
settlement by an appropriate lupon (8) such other classes of disputes
which the President may determine in the interest of justice or upon
recommendation by the Secretary of Justice (Section 408, PD 1508). (9)
disputes arising from the implementation of the CARP (10) EmployerEmployee disputes (11) action to annul a judgment upon a compromise.
Note however that while no petition, complaint, action or proceeding
within the authority of the lupon shall be filed directly with the court or
any government office for adjudication UNLESS there has been a
confrontation before the lupon chairman or pangkat, and that no
conciliation or settlement has been reached as certified by the lupon
secretary or pangkat secretary, or unless the settlement has been
repudiated within 10 days from its date by a statement sworn before the
punong barangay to the effect that his consent is vitiated by fraud
violence or intimidation ( Section 418, PD 1508), the following cases
may be filed directly: (1) accused in under detention (2) person has
otherwise been deprived of personal liberty calling for habeas corpus
proceedings (3) when action is coupled with a provisional remedy (4)
where action may otherwise be barred by prescription (Section 412, PD
1508)
The proper VENUE for conciliation is as follows: (1) if between persons

actually residing in the same barangay-before the lupon of the said
barangay (2) if between actual residents of different barangays within the
same city of municipality- before the lupon where the respondent resides,
if there be several respondents- before the lupon where anyone of them
resides at the election of the complainant (3) if involving real property or
any interest therein- the barangay lupon where the property or larger
portion is located (4) if arising in the workplace where the contending
parties are employed or at the institution where such parties are enrolled
for study- before the lupon of the barangay where the workplace or
institution is located. Any OBJECTIONS TO VENUE shall be raised
before the Punong Barangay, otherwise they are waived. Legal questions
may be submitted to the Secretary of Justice or his duly designated
representative whose ruling thereon shall be binding.
The procedure for settlement is (1) initiation of complaint, orally or in
writing, to the lupon chairman of the barangay (2) mediation by lupon
chairman on the next working day from receipt of the complaint, failing
in which within 15 days from the first meeting, he shall forthwith set a
date for the constitution of the pangkat (3) the pangkat shall convene not
later than 3 days from constitution to hear the parties and explore the
possibility of an amicable settlement within 15 days from the day it
convenes, which period is extendible for another 15 days, except in
clearly meritorious cases. Note however, that while prescription does not
run upon filing of the complaint and shall resume only upon receipt of
the complaint or certificate of repudiation, or certification to file action,
the interruption shall not exceed 60 days from filing of the complaint
with the punong barangay. (Section 410, PD 1508)
146
The FORM of the amicable settlement shall be in writing, in a

language/dialect known to the parties, signed by them and attested by the
lupon/pangkat chairman (Section 411, PD 1508). This shall have the
force and effect of a final judgment of a court upon expiration of 10 days
from date thereof unless repudiation has been made or a petition to
nullify the award has been filed before the proper court. This does not
apply to cases already pending but subsequently referred to the lupon for
amicable settlement under the last paragraph of Section 408,as the same
is submitted back to the court to serve as basis for rendition of judgment.
(Section 416, PD 1508). The award or settlement may be enforced by
execution by the lupon within 6 months from the date of the settlement.
After the lapse of the said period, by action in the appropriate city of
municipal court. (Section 417, PD 1508)
Note however that if a settlement is not complied with, the injured party
may bring an action against the offending party to recover the original
amount of his claim, thereby rescinding the compromise under Article
2041 of the Civil Code which was held to qualify Article 2037 of the
Civil Code as to the effect of a compromise being considered as
constituting res judicata.813
REVISED RULE ON
SUMMARY PROCEDURE
RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15,
1991 PROVIDING FOR THE REVISED RULE ON SUMMARY
PROCEDURE FOR METROPOLITAN TRIAL COURTS, MUNICIPAL
TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND
MUNICIPAL CIRCUIT TRIAL COURTS.
Pursuant to Section 36 of the Judiciary Reorganization Act of 1980 (B.P.
Blg. 129) and to achieve an expeditious and inexpensive determination of
the cases referred to herein, the Court Resolved to promulgate the
following Revised Rule on Summary Procedure:
I
APPLICABILITY
SECTION 1. Scope: - This rule shall govern the summary procedure in
the Metropolitan Trial Courts in Cities, the Municipal Trial Courts, and
the Municipal Circuit Trial Courts in the following cases falling within
their jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer, irrespective of the
amount of damages or unpaid rentals sought to be recovered. Where
attorneys fees are awarded, the same shall not exceed twenty thousand
pesos (P20,000).
813 Chavez v Court of Appeals, GR 159411, March 18, 2005

147
(2)
All other cases, except probate proceedings, where the total
amount of plaintiffs claim does not exceed one hundred thousand pesos
(P100,000) or, two hundred thousand pesos (P200,000) in Metropolitan
Manila, exclusive of interest and costs. (As amended by A.M. No. 02-1109-SC, dated Nov. 12, 2002; this amended took effect on November 25,
2002)
B. Criminal Cases:
(1)
Violations of traffic laws, rules and regulations;
(2)
Violations of the rental law;
(3)
Violations of municipal or city ordinances;
(4)
Violations of Batas Pambansa Blg 22814
(5) All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding six months, or a fine not
exceeding one thousand pesos (P1,000), or both, irrespective of other
imposable penalties, accessory or otherwise, or of the civil liability
arising therefrom: Provided, however, That in offenses involving damage
to property through criminal negligence, this Rule shall govern where the
imposable fine does not exceed ten thousand pesos (P10,000).
This rule shall not apply to a civil case where the plaintiffs cause of
action is pleaded in the same complaint with another cause of action
subject to the ordinary procedure; nor to a criminal case where the
offense charged is necessarily related to another criminal case subject to
ordinary procedure.
SEC. 2. Determination of applicability. Upon the filing of a civil or
criminal action, the court shall issue an order declaring whether or not the
case shall be governed by this Rule.
A patently erroneous determination to avoid the application of the Rule
of Summary Procedure is a ground for disciplinary action.
II
CIVIL CASES
SEC. 3. Pleadings.
A.
Pleadings, allowed. The only pleadings allowed to be filed are
the complaints, compulsory counterclaims and cross-claims pleaded in
the answer, and the answers thereto.
B.
Verification. All pleadings shall be verified.
SEC. A. Duty of court. After the court determines that the case falls
under summary procedure, it may, from an examination of the allegations
therein and such evidence as may be attached thereto, dismiss the case
outright on any of the grounds apparent therefrom for the dismissal of a
civil action.
814 A.M. 00-11-01-SC, April 15, 2003

148
If no ground for dismissal is found, it shall forthwith issue summons

which shall state that the summary procedure under this Rule shall apply.
NOTE: That any of the grounds for dismissal under Rule 16 apply
although no motion to dismiss can be filed except on the grounds of lack
of jurisdiction and non-compliance with the requirement on conciliation.
NOTE: That the prohibition as to the filing of a motion to dismiss exists
prior to the filing of an answer but a dismissal grounded on any of the
causes stated in Rule 16 can only be effected prior to the issuance of the
court of summons and not after an answer has been filed (Heirs of
Ricardo Olivas vs. Flor, 161 SCRA 393)
SEC. 5. Answer. Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a copy thereof
on the plaintiff. Affirmative and negative defenses not pleaded therein
shall be deemed waived, except for lack of jurisdiction over the subject
matter. Cross-claims and compulsory counterclaims not asserted in the
answer shall be considered barred. The answer to counterclaims or crossclaims shall be filed and served within ten (10) days from service of the
answer in which they are pleaded.
SEC. 6. Effect of failure to answer. Should the defendant fail to
answer the complaint within the period above provided, the court, motu
proprio, or on motion of the plaintiff, shall render judgment as may be
prayed for therein: Provided, however, That the court may in its
discretion reduce the amount of damages and attorneys fees claimed for
being excessive or otherwise unconscionable. This is without prejudice to
the applicability of Section 4, Rule 18 of the Rules of Court, if there are
two or more defendants.
NOTE: Rendition by the court of judgment on account of failure to file
an answer or to appear during the preliminary conference may not
require a motion (Sordan vs. De Guzman, A.M. No. MTJ-00-1296,
October 5, 2000)
SEC. 7. Preliminary conference; appearance of parties. Not later

than thirty (30) days after the last answer is filed, a preliminary
conference shall be held. The rules on pre-trial in ordinary cases shall be
applicable to the preliminary conference unless inconsistent with the
provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall
be a cause for the dismissal of his complaint. The defendant who appears
in the absence of the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Section 6 hereof. All cross-claims shall
be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to
judgment in accordance with Section 6 hereof. This Rule shall not apply
149
where one of two or more defendants sued under a common cause of

action who had pleaded a common defense shall appear at the
preliminary conference.
SEC. 8. Record of preliminary conference. Within five (5) days after
the termination of the preliminary conference, the court shall issue an
order stating the matters taken up therein, including but not limited to:
(a) Whether the parties have arrived at an amicable settlement, and if
so, the terms thereof;
(b) The stipulations or admissions entered into by the parties;
(c) Whether, on the basis of the pleadings and the stipulations and
admissions made by the parties, judgment may be rendered without the
need of further proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the order;
(d) A clear specification of material facts which remain controverted;
and
(e) Such other matters intended to expedite the disposition of the case.
SEC. 9. Submission of affidavits and position papers. Within ten (10)
days from receipt of the order mentioned in the next preceding section,
the parties shall submit the affidavits of their witnesses and other
evidence on the factual issues defined in the order, together with their
position papers setting forth the law and the facts relied upon by them.
SEC. 10. Rendition of judgment. Within thirty (30) days after receipt
of the last affidavits and position papers, or the expiration of the period
for filing the same, the court shall render judgment.
However, should the court find it necessary to clarify certain material
facts, it may, during the said period, issue an order specifying the matters
to be clarified, and require the parties to submit affidavits or other
evidence on the said matters within ten (10) days from receipt of said
order. Judgment shall be rendered within fifteen (15) days after the
receipt of the last clarificatory affidavits, or the expiration of the period
for filing the same.
The court shall not resort to the clarificatory procedure to gain time for
the rendition of the judgment.
NOTE: That hearings are not necessary unless for the purpose of
clarifying certain material facts.
III
CRIMINAL CASES
150
Sec. 11. How commenced. The filing of criminal cases falling within
the scope of this Rule shall be either by complaint or by information;
Provided, however, That in Metropolitan Manila and in Chartered Cities,
such cases shall be commenced only by information, except when the
offense cannot be prosecuted de officio.
The complaint or information shall be accompanied by the affidavits of
the complainant and of his witnesses in such number of copies as there
are accused plus two (2) copies of the courts files. If this requirement is
not complied with within five (5) days from date of filing, the case may
be dismissed.
Sec. 12 Duty of court.
(a)
If commenced by complaint. On the basis of the complaint and
the affidavits and other evidence accompanying the same, the court may
dismiss the case outright for being patently without basis or merit and
order the release of the accused if in custody.
(b)
If commenced by information. When the case is commenced
by information, or is not dismissed pursuant to the next preceding
paragraph, the court shall issue an order which, together with copies of
the affidavits and other evidence submitted by the prosecution, shall
require the accused to submit his counter-affidavit and the affidavits of
his witnesses as well as any evidence in his behalf, serving copies thereof
on the complainant or prosecutor not later than ten (10) days from receipt
of said order. The prosecution may file reply affidavits within ten (10)
days after receipt of the counter-affidavits of the defense.
Sec. 13 Arraignment and trial. Should the court, upon a consideration
of the complaint or information and the affidavits submitted by both
parties, find no cause or ground to hold the accused for trial, it shall order
the dismissal of the case; otherwise, the court shall set the case for
arraignment and trial.
If the accused is in custody for the crime charged, he shall be
immediately arraigned and if he enters a plea of guilty, he shall forthwith
be sentenced.
Sec. 14 Preliminary conference. Before conducting the trial, the court
shall call the parties to a preliminary conference during which a
stipulation of facts may be entered into, or the propriety of allowing the
accused to enter a plea of guilty to a lesser offense may be considered, or
such other matters may be taken up to clarify the issues and to ensure a
speedy disposition of the case. However, no admission by the accused
shall be used against him unless reduced to writing and signed by the
accused and his counsel. A refusal or failure to stipulate shall not
prejudice the accused.
Sec. 15 Procedure of trial. At the trial, the affidavits submitted by the
parties shall constitute the direct testimonies of the witnesses who
executed the same. Witnesses who testified may be subjected to crossexamination, redirect or re-cross-examination. Should the affiant fail to
151
testify, his affidavit shall not be considered as competent evidence for the
party presenting the affidavit, but the adverse party may utilize the same
for any admissible purpose.
Except on rebuttal or surrebuttal, no witness shall be allowed to testify
unless his affidavit was previously submitted to the court in accordance
with Section 12 hereof.
However, should a party desire to present additional affidavits or counteraffidavits as part of his direct evidence, he shall so manifest during the
preliminary conference, stating the purpose thereof. If allowed by the
court, the additional affidavits of the prosecution or the counter-affidavits
of the defense shall be submitted to the court and served on the adverse
party not later than three (3) days after the termination of the preliminary
conference. If the additional affidavits are presented by the prosecution,
the accused may file his counter-affidavits and serve the same on the
prosecution within three (3) days from such service.
Sec. 16. Arrest of accused. The court shall not order the arrest of the
accused except for failure to appear whenever required. Release of the
person arrested shall either be on bail or on recognizance by a
responsible citizen acceptable to the court.
Sec. 17 Judgment. Where a trial has been conducted, the court shall
promulgate the judgment not later than thirty (30) days after the
termination of trial.
COMMON PROVISIONS
SEC. 18 Referral to Lupon. Cases requiring referral to the Lupon for
conciliation under the provisions of Presidential Decree No. 1508 where
there is no showing of compliance with such requirement, shall be
dismissed without prejudice, and may be revived only after such
requirement shall have been complied with. This provision shall not
apply to criminal cases where the accused was arrested without a
warrant.
SEC. 19. Prohibited pleadings and motions. The following
pleadings, motions, or petitions shall not be allowed in the cases covered
by this Rule:
(a) 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 the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for
reopening of trial;
152
NOTES: A motion for reconsideration can be filed when the case is

already pending before the appellate court. (Jakihaca vs.Aquino, 181
SCRA 67). A motion for reconsideration of rulings or pertaining to other
incidents, NOT OF THE JUDGMENT, is allowed ( Lucas vs. Fabros,
324 SCRA 1)
(e) Motion for extension of time to file pleadings, affidavits or any

other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
NOTE: If motion is well grounded, it may be allowed.
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
SEC. 20. Affidavits. The affidavits required to be submitted under
this Rule shall state only facts of direct personal knowledge of the
affiants which are admissible in evidence, and shall show their
competence to testify to the matters stated therein.
A violation of this requirement may subject the party or the counsel
who submits the same to disciplinary action, and shall be cause to
expunge the inadmissible affidavit or portion thereof from the record.
SEC. 21. Appeal. The judgment or final order shall be appealable to
the appropriate regional trial court which shall decide the same in
accordance with Section 22 of Batas Pambansa Blg. 129. The decision of
the regional trial court in civil cases governed by this Rule, including
forcible entry and unlawful detainer, shall be immediately executory,
without prejudice to a further appeal that may be taken therefrom.
NOTE: That immediate execution requires proof that the losing party
has been served with notice of judgment (Dy vs. CA, 191 SCRA 585)
and that notice of the motion for execution to the adverse party is
required ( Limpo vs. CA, 333 SCRA 575)
SEC. 22. Applicability of the regular rules. The regular procedure
prescribed in the Rules of Court shall apply to the special cases herein
provided for in a suppletory capacity insofar as they are not inconsistent
herewith.
153
SEC. 23. Effectivity. This revised Rule on Summary Procedure shall

be effective on November 15, 1991.
RULE 71 CONTEMPT
WHAT IS CONTEMPT
Willful disobedience or open disrespect of the orders, authority, or
dignity of a court or judge acting in judicial capacity by disruptive
language or conduct or by failure to obey the orders of the court
KINDS OF CONTEMPT
1. DIRECT CONTEMPT consists of misbehaviour in the presence of or
so near a court as to obstruct or interfere with the proceedings before the
same, it includes, disrespect, offensive personalities against others,
refusal to be sworn or answer as a witness, or to subscribe to an
affidavit/deposition when lawfully required to do so.
This kind of contempt may be SUMMARILY ADJUDGED and be
punished by a fine not exceeding P 2,000.00 or imprisonment of not
exceeding 10 days or BOTH if it be by a Regional Trial Court or a fine
not exceeding P 200.00 or imprisonment not exceeding 1 day or BOTH if
it be by a Municipal Trial Court.
The remedy therefrom is certiorari/ prohibition, in which case the
judgment is suspended pending the petition provided the petitioner files a
bond fixed by the court which rendered the judgment and conditioned
that he will abide by and perform the judgment should the petition be
decided against him. 815
1.1It is direct contempt if a pleading contains derogatory, offensive or
malicious statements against a particular judge when submitted in the
same court where the judge is presiding. If submitted elsewhere, it is
indirect contempt.816
2.INDIRECT CONTEMPT consists of (a) Misbehavior of an officer of
a court in the performance of his official duties or in his official
transactions; (b) Disobedience of or resistance to a lawful writ, process,
order, or judgment of a court, including the act of a person who, after
being dispossessed or ejected from any real property by the judgment or
process of any court of competent jurisdiction, enters or attempts or
induces another to enter into or upon such real property for the purpose
of executing acts of ownership or possession, or in any manner disturbs
the possession given to the person adjudged to be entitled thereto; (c)
Any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt under Section 1
of this Rule; (d) Any improper conduct tending, directly or indirectly to

816 Ang v Castro, 136 SCRA 453
154
impede, obstruct, or degrade the administration of justice; (e) Assuming

to be an attorney or an officer of a court, and acting as such without
authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or
attempted rescue, of a person or property in the custody of an officer by
virtue of an order or process of a court held by him.
But nothing in this section shall be so construed as to prevent the court
from issuing process to bring the respondent into court, or from holding
him in custody pending such proceedings.817
2.1This kind of contempt may be initiated motu propio by the court
against which the contempt was committed by an order or any formal
charge requiring the respondent to show cause why he should not be
punished for contempt. In other cases, it shall be commenced by verified
petition with supporting particulars and certified true copies of
documents or papers involved therein, and upon FULL COMPLIANCE
WITH REQUIREMENTS FOR FILING INITIATORY PLEADINGS in
the court concerned. If the charges are related to the principal action
pending before the court, the petition shall so allege such fact but it shall
be DOCKETED, HEARD AND DECIDED SEPARATELY, unless the
court in its discretion orders consolidation of the charge and principal
action for joint hearing and decision.818
2.2The charge shall be filed in the Regional Trial Court if the contempt is
committed against it or a court of equal or higher rank or against an
officer appointed by it. If against a lower court, it may be filed in the
Regional Trial Court in the place where the lower court sits or in such
lower court, subject to appeal to the Regional Trial Court.819
This kind of contempt is punishable by a fine not exceeding P 30,000.00
or imprisonment not exceeding 6 months or both, if committed against a
Regional Trial Court. If against a Municipal Trial Court, by a fine not
exceeding P 5,000.00 or imprisonment not exceeding 1 month. If it
consists in a violation of a writ of injunction, TRO or status quo order, he
may also be ordered to make complete restitution. A writ of execution
may be issued to enforce a fine.820 If it consists in refusal or omission to
do an act within his power to perform, he may be imprisoned by order of
the court until it is performed.821
2.3A judgment for indirect contempt is appealable to the Regional Trial
Court, but execution shall not be suspended without the filing of a
bond.822
2.4An order dismissing a contempt charge or exoneration from such, is
not appealable.823
OTHERS

823 In Re, Mison, Jr, 33 SCRA 30
155
1.If no hearings are held forthwith and the respondent has been taken into
custody, he may be released upon payment of a bond, but if he fails to
appear on the hearing of the charge, he may be ordered arrested and the
bond forfeited.824
2.If already imprisoned, the court may discharge the respondent if public
interest will not be prejudiced by the release.825
APPLICABILITY OF THE RULE
The rules apply to persons, entities, bodies or agencies exercising quasijudicial powers or shall have suppletory effect to their rules. The RTC of
the place where the contempt is committed shall have jurisdiction.826
DEFINING CRIMINAL AND CIVIL CONTEMPT
It is criminal contempt when the purpose is to vindicate the authority of
the court and protect its outraged dignity. It is civil contempt when there
is failure to do something ordered by the court to be done for the benefit
of another party.827
In fact, it has been declared that the motion for extension of time within
which a party may plead is not a litigated motion where notice to the
adverse party is necessary to afford the latter an opportunity to resist the
application, but an ex parte motion made to the court in behalf of one or
the other of the parties to the action, in the absence and usually without
the knowledge of the other party or parties. (Commercial Union
Assurance Company Limited, et. al. vs. Lepanto Consolidated Mining
Company, et. al., L-43342. October 30, 1978, 86 SCRA 79, 95-96;
Amante vs. Sunga, et. al., L-40491, May 28, 1975, 64 SCRA 192, 195)
Therefore, as long as it is filed within the period sought to be extended, a
request for extension of time may be filed ex parte and granted without
the usual formalities applicable to motions in general. (Moya vs. Barton,
76 Phil. 831)

827 Yasay v Recto, 313 SCRA 739
156

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LECTURE NOTES ON CIVIL PROCEDURE

WHAT IS CIVIL PROCEDURE

Determined by allegations in the complaint

4. AS TO SITUS it is Territorial, meaning it is exercised within the

WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED

PROBLEM AREAS AFFECTING JURISDICTION

ACTIONS INCAPABLE OF PECUNIARY ESTIMATION

The foregoing Constitutional definition is of appellate jurisdiction.

The MTCs may however be assigned by the Supreme Court to hear

RULE I GENERAL PROVISIONS

A Civil Actions may be:

1 Section 1, Rule 1, 1997 Rules of Civil Procedure

Distinguishing it from other kinds of actions:

5 Supra, Section 5, Rule 1

1.Liberal construction is the controlling principle to effect substantial

RULE 2CAUSE OF ACTION

DISTINGUISHING IT FROM RIGHT OF ACTION

18 Equitable Bank v CA, 425 SCRA 544

23 Blossom & Co v Manila Gas Corporation, 55 Phil 226

is a claim by one party against a co-party arising out of the transaction or

29 Supra, Section 8, Rule 6

LACK OF LEGAL PERSONALITY means that the plaintiff is not the

37 Supra, Section 7, Rule 3

42 Article 1883, NCC

question of law or fact common to all such plaintiffs or to all such

54 Supra, Section 6, Rule 3

BUT, it shall not be dismissed or compromised without the approval of

if not joined action cannot proceed

is voted but does not resolve

-non joinder dismissed

non joinder waiver of

WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN

58 Supra, Section 2, Rule 17

If he (plaintiff) uncertain against who of several persons he is entitled

EFFECT OF DEATH OF A PARTY (Sec 16)

63 Supra, Section 13, Rule 3

BEFORE SUBSTITUTION IF NO EXPRESS ASSENT, the public

2. IF IT DOES NOT ARISE FROM CONTRACT, RE: CLAIMS FOR

65 Supra, Section 20, Rule 3

EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION

69 Supra, Section 3 and 18, Rule 3

collected. IF NOT PAID, execution shall issue on the payment thereof

75 Supra, Section 22, Rule 3

2.3In personal actions, it is the residence of the proprietor, not the

THE RULES ON VENUE ARE NOT APPLICABLE

79 Mangila v Court of Appeals, 387 SCRA 162

81 Supra, Section 3, Rule 4

Solicitor General commences the action, he may do so in the Supreme

84 Supra, Section 7, Rule 66

PLEADING DEFINED is a written statement of the respective claims

92 Supra, Section 1, Rule 6

in the counterclaim is deemed to have adopted the allegations of the

OTHER RELIEF X bought land from Y. Later X is sued by A for

RULE 7 PARTS OF A PLEADING

107 Supra, Section 13, Rule 6

Date every pleading is required to be dated.

3. SIGNATURE AND ADDRESS- every pleading must be signed by the

110 Supra, Section 4, Rule 7

Receivership116 (h) Support117 (i) 69) Certiorari, Prohibition or

116 Supra, Section 1, Rule 59

118 Supra, Sections 1,2,3, Rule 65

126 TADI v Solilapsi, 394 SCRA 269

SEE: Ateneo de Naga vs. Bernal, GR 160455, May 9, 2005