Académique Documents
Professionnel Documents
Culture Documents
Remedial Law
Remedial Law
Refers to the
legislation providing
means or methods
whereby causes of
action may be
effectuated, wrongs
redressed, and relief
obtained (adjective
law)
Prospective in
application
Cannot be enacted
by SC
SC is expressly
empowered to
promulgate
procedural rules
Special
Proceedin
gs
Criminal
Procedure
Civil
Action
A remedy
by which a
party seeks
to establish
a status, a
right, or a
particular
fact (Rule 1
S3c)
The State
prosecutes
a person
for an act
or omission
punishable
by law
(Rule 1
S3b)
A
proceeding
wherein a
person is
prosecuted
by the
State for
acts or
omissions
committed
in violation
of penal
laws, and
to impose
the
correspondi
ng penalty
provided
for by
penal laws
Governed
by special
rules, and
in the
absence of
special
provisions,
the rules
provided
for in
ordinary
civil
actions
shall be, as
far as
practicable,
Governed
by the
Revised
Rules of
Criminal
Procedure
A party
sues
another for
the
enforcemen
t or
protection
of a right,
or the
prevention
or redress
of a wrong
A civil
action may
be ordinary
or special.
(R1 S3a)
apply
suppletory
(R72 S2)
May involve
only one
party
Involves
the State
against the
accused
Involves 2
or more
parties
Initiated by
petition
Initiated by
complaint
(but filed in
court by
Information
)
Initiated by
complaint,
or, in some
special civil
actions, by
petition
Except
Habeas
Corpus,
NOT based
on a cause
of action
Based on
an act or
omission
punishable
by law
Based on a
cause of
action
CONSTITUTIONAL PROVISIONS
Relating to CIVIL PROCEDURE
Both are
governed
by the
Rules for
ordinary
civil
actions,
subject to
specific
rules
prescribed
for a
special civil
action (R1
S3a)
A8 S1
Judicial Power shall be vested in one
Supreme Court and in such lower courts as
may be established by law.
Judicial Power includes the duty of the
courts of justice to settle actual
controversies involving rights which are
legally demandable and enforceable, and
to determine whether or not there is grave
abuse of discretion amounting to lack or
excess of jurisdiction on the part of any
branch or instrumentality of the
government.
Certiorari
Prohibition
Mandamus
Quo warranto
Habeas corpus
Sandiganbayan
Family Courts (RA 8369)
Court of Tax Appeals
Sharia Court
A7 S4
A3 S1
No person shall be deprived of life, liberty,
or property without due process of law, nor
shall any person be denied the equal
protection of the laws.
A7 S18
A6 S30
No law shall be passed increasing the
appellate jurisdiction of the SC as provided
in this Constitution without its advice and
concurrence.
A8 S5 P1
The Supreme Court shall have the following
powers:
-
Ambassadors
Review
Revise
Reverse
Modify
Affirm
o
On appeal or certiorari, as
the law or the Rules of Court
may provide, final
judgments and orders of
lower courts in:
a. treaty,
b. international or executive
agreement
c. law
d. presidential decree
e. proclamation
f.
order
g. instruction
4. Integrated Bar
h. ordinance
i.
regulation
i. is in question
A8 S2
The Congress shall have the power to
define, prescribe, and apportion the
jurisdiction of the various courts but may
not deprive the SC of its jurisdiction over
cases enumerated in S5 thereof.
A3 S16
Rule 30
Rule 39
Venue
A8 S14(basis for Rule 36)
No decision shall be rendered by any court
without expressing therein clearly and
distinctly the facts and the law on which it
is based.
Jurisdiction
Power of court to
hear and decide a
case
May be waived
Jurisdiction over
subject matter and
over nature of
action are conferred
by law and cannot
be waived
Procedural
Substantive
May be changed by
written agreement
of the parties
Cannot be subject of
the agreement of
the parties
Rule 36
General Jurisdiction
Power to adjudicate all
controversies except those
expressly withheld from the plenary
powers of the court.
Original Jurisdiction
Special or Limited Jurisdiction
One which restricts the courts
jurisdiction only to particular cases
and subject to such limitations as
may be provided by the governing
law.
Appellate Jurisdiction
Power and authority conferred upon
a superior court to rehear and
determine causes which have been
tried in lower courts, the cognizance
which a superior court takes of a
case removed to it, by appeal or
writ of error, from the decision of a
lower court or the review by a
superior court of the final judgment
or order of some lower courts
Concurrent / Confluent /
Coordinate Jurisdiction
Power conferred upon different
courts, whether of the same or
different ranks, to take cognizance
at the same stage of the same case
in the same or different judicial
territories
Exclusive Jurisdiction
Power to adjudicate a case or
proceeding to the exclusion of all
other courts at that stage
Territorial Jurisdiction
E.g. CA, SC, Sandiganbayan, RTC- in
HC cases, Writ of Amparo, Writ of
Habeas Data
Coordinate Jurisdiction
Territorial jurisdictions:
SC and CA
National
RTC
Regional jurisdiction
Inferior courts
Territorial jurisdiction as defined by
SC in BP129
*Power of tribunal considered with
reference to the territory within which it is
to be exercised.
Delegated Jurisdiction
The grant of authority to inferior
courts to hear and determine
cadastral and land registration
cases under certain conditions
Ancillary Jurisdiction
Power of the courts to settle issues
which are incidental to main issue
Appeal by
Certiorari
Rule 45
Rule 65
Petition is based on
questions of law
Petition is based on
questions of
jurisdiction, whether
the lower court
acted without
jurisdiction or in
excess of jurisdiction
or with grave abuse
of discretion
Mode of appeal
Mode of review /
SPECIAL CIVIL
ACTION
Involves review of
the judgment award
or final order on the
merits
Directed against
interlocutory order
of the court or
where there is no
appeal or any plain,
Petition for
Certiorari
speedy, or adequate
remedy
Filed within 15 days
from notice of
judgment, final
order, or resolution
appealed from
Stays judgment or
final order appealed
from
Unless a writ of
preliminary
injunction or
temporary
restraining order is
issued, the petition
does not stay the
challenged
proceeding
JURISDICTION
SUPREME COURT
Original Jurisdiction of the Supreme
Court:
A8 S5 P1- (Rule 56)
The SC shall have exclusive original
jurisdiction over cases involving:
1. Ambassadors
2. Other public ministers and consuls
Appellant and
appellee are original
parties to the action,
and the lower court
or quasi judicial
agency is not
impleaded
Motion for
reconsideration is
not required
Court is in exercise
of its appellate
jurisdiction and
power of review
Court exercises
original jurisdiction
Petition shall be
a. Certiorari
b. Prohibition
c. Mandamus
d. Quo warranto
e. Habeas corpus
Mandamus
Prohibition
Certiorari
Habeas corpus
Quo warranto
RTC
Exclusive Original Jurisdiction:
1. In all actions in which the subject of
litigation is incapable of pecuniary
estimation
10
3. Controversies in election or
appointment of directors, trustees,
officers or managers of such
corporations, partnerships, or
associations
4. Petitions of corporations,
partnerships or associations to be
declared in the state of suspension
of payments, in cases where the
corporation, partnership or
association possesses sufficient
property to cover all its debts but
foresees the impossibility of
meeting them when the
respectively fall due or in cases
where the corporation, partnership
or association has no sufficient
assets to cover its liabilities, but is
under management of a
rehabilitation receiver or
management committee
Appellate Jurisdiction:
Over all cases decided by MTCs, MuTCs,
MCTCs in their respective territorial
jurisdictions
MTC
(note: baligtarin ang RTC jurisdiction, below
20-50, 300-400)
Ordinary Civil Actions:
11
Summary Procedure:
1. All cases of FE and UD, irrespective
of the amount of damages or
unpaid rentals sought to be
recovered. Where AF are awarded,
the same shall not exceed 20k
12
3. Civil cases not higher than 100kSubject to the Rule on Small Claims
Conferred by law
Cause of
Action
Right of
Action
Suit to
enforce
ones right
or for the
prevention
or redress of
a wrong
Act or
omission by
which a
party
violates a
right of
another
Remedial
right to file a
suit based
on cause of
action
Action
Cause of
Right of
13
Suit filed in
court for
enforcemem
t or
protection of
a right, or
the
prevention
or redress of
a wrong (R1
S3)
Action
Action
Act or
omission by
which a
party violate
a right of
another (R2
S2)
Remdial
right or right
to relief
granted by
law to a
party to
institute an
action
against a
person who
has
committed
delict or
wrong
against him
Reason for
the action
Remedy or
means
afforded or
the
consequent
relief
Formal
statement of
operative
facts that
give rise to a
remedial
right
Remedial
right given
to a person
because of
occurrence
of the
alleged facts
Matter of
procedure
and depends
on the
pleadings
filed by the
parties
A matter of
right and
depends on
substantive
law
Not affected
by
affirmative
defenses
(fraud,
prescription,
estoppel,
etc)
Affected by
affirmative
defenses
Kinds of actions:
1ST GROUP: for purposes of venue under
Rule 4
Real Action
-
Venue: R4 S1
Personal Action
Venue: R4 S2
Mixed Action
Venue: R4 S1
14
Summons/notification by
PUBLICATION
directly
particular
property to
an obligation
or lien
burdening it
Judgment is
binding on
the whole
world
Judgment is
bonding only
upon the
parties
impleaded
or their
successors
in interest
Judgment is
binding upon
particular
persons
Examples:
Examples:
Examples:
Probate
proceeding,
Action for
specific
performance
Action for
partition
Action in Personam
-
Foreclosure of mortgage
Partition
Attachment
cadastral
proceeding,
Action for
breach of
contract
Action to
foreclose
real estate
mortgage
Real Action
Personal
Action
Mixed
Action
Ownership
or
possession
of real
property is
involved
Personal
property is
sought to be
recovered or
where
damages for
breach of
contract are
sought
Both real
and personal
properties
are involved
Founded on
privy of real
estate
Founded on
privity of
contract
Founded on
both
Filed in the
Filed in the
Filed in the
Action in
rem
Action in
personam
Action
Quasi in
Rem
Directed
against the
thing itself
Directed
against
particular
persons
Directed
against
particular
persons
special
proceedings
Jurisdiction
over person
of defendant
is not
required
Jurisdiction
over person
of defendant
is required
Jurisdiction
over the
person of
the
defendant is
not required
as long as
jurisdiction
over the res
is acquired
A
proceeding
to determine
the state or
condition of
a thing
An action to
impose a
responsibilit
y or liability
upon a
person
A proceeding
to subject
the interest
of a named
defendant
over a
15
court where
the property
or any part
thereof is
situated (R4
S1)
court where
the plaintiff
or any of the
plaintiffs
resides,
where
defendant or
any of the
defendants
resides, or in
case of non
resident
defendant,
where he
may be
found, at
election of
plaintiff (R4
S2)
court where
the property
or any part
thereof is
situated (R4
S1)
Example:
Example:
Example:
Accion
reivindicatori
a
Action for a
sum of
money
Accion
publiciana
with a claim
for damages
Personal Action
Action in
personam
Personal property is
sought to be
recovered or where
damages for breach
of contract are
sought
An action directed
against particular
persons, may be
real action, personal
action, mixed action
Founded on privity
of contract
Not necessarily;
because the action
may also be real or
mixed
R4 S1 or R4 S2 may
govern, depending
on whether the
action is real action
(R4 S2)
or personal action
Mixed Action
Quasi In Rem
Action
Founded on both
privity of real estate
and privity of
contract
Action directed
against particular
persons, but
jurisdiction over
defendant is not
required as long as
jurisdiction over the
res is acquired
Rules on venue of
real actions shall
govern (R4 S1)
Rules on personal
actions govern (?)
Real Action
In rem action
Ownership or
possession of real
property is involved
Action directed
against the thing
itself
Not necessarily;
depends on whether
the action is real,
personal, mixed
A proceeding
founded on privity of
real estate
A proceeding to
determine state or
condition of a thing
Judgment is binding
upon the whole
world
16
INITIATORY PLEADING
A pleading that initiates an action
RESPONSIVE PLEADING
A pleading that responds to
allegations in the adverse partys
pleading
Initiatory Pleadings
Original complaint
Counter Cross
Claim
COMPULSORYArises out of or is
necessarily
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim
Can be an initiatory
pleading, if
permissive
PERMISSIVE- does
not arise of or is
necessarily
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim
Permissive counterclaim
Cross claim
Third party complaint
4th party complaint
Complaint in intervention
Petition
Responsive Pleadings
17
counterclai
m
Answer to
permissive
counterclaim
Cross claim
Compulsory counterclaim
Third party
complaint
Reply
Answer to counter counter claim
Answer to counter cross claim
4th party
complaint
Complaint
in
interventio
n
Answer to third
party
complaint
Answer to
fourth party
complaint
Answer to
complaint in
intervention
Why?
Motion is an application for relief other
than by a pleading (R15 S1)
Position Paper and Memorandum only
narrate facts of the case, issues, no cause
of action, no defenses, but only contain
discussions
Initiatory
Pleading
Responsive
Pleading
A pleading that
initiates an action
A pleading that
responds to
allegations in the
adverse partys
pleading
Original
complaint
Permissive
Answer to
original
complaint
Petition
In special civil
actions
In special
proceedings
Counter
counter
claim
Counter
cross claim
Need to be
verified, with
Comment or
objection to
petition
Compulsory
counterclaim
Reply
Answer to
counter
counter claim
Answer to
counter cross
claim
Except when
otherwise provided by
18
certification
against forum
shopping, plus
payment of docket
fees
No need for
certification against
forum shopping, and
not need for payment
of docket fees (Note:
compulsory
counterclaim, docket
fees are suspended)
Instances when
verification is needed:
Actionable
document
I.
BARANGAY CONCILIATION
PROCEEDINGS
Allegations of
usury
Answer to
permissive
counterclaim
Succeeding
pleadings in
special
proceedings
19
20
21
II. COMPLAINT
Complaint (R6 S3)
Undergone Barangay
Conciliation Proceedings
Granted- Refile
Summary Procedure:
buyer beware
It is not a pleading
Jurisdiction
IF, court has no jurisdiction, M2D R16 S1b
(importance of knowing BP129 as amended
by RA7691 Rules on Jurisdiction)
Cases covered:
1. All cases of FE and UD, irrespective
of the amount of damages or
unpaid rentals sought to be
recovered. Where AF are awarded,
the same shall not exceed 20k
22
3. Civil cases not higher than 100kSubject to the Rule on Small Claims
EXCEPT:
R4 S2
R4 S4
1. The parties have validly agreed in
writing
23
Parties
(R3 S1)
Only natural or juridical persons, or entities
authorized by law may be parties in a civil
24
Counter counterclaimant
Cross Claimant
A party to an original action who
has a claim against a co party
arising out of the transaction or
occurrence that is the subject
matter either of the original action
or of a counterclaim therein (R6 S8)
Defendant includes:
-
Plaintiff
A person having an interest in the
matter of the action or in obtaining
the relief demanded
Defendant
A person claiming an interest in the
controversy or the subject thereof
adverse to the plaintiff
Indispensable Party
An indispensable party is a party in
interest without whom no final
determination can be had of an
action who shall be joined either as
plaintiff or defendant (R3 S7)
Necessary Party
3rd party plaintiff
A defending party who may with
leave of court file against a third
person not party to the action called
the 3rd 4th etc party defendant a
claim for contribution, indemnity,
subrogation, or any other relief in
25
Quasi Party
Parties in whose behalf a class or
representative suit is brought
Guardian
Executor
Administrator
JOINDER OF PARTIES
Requisites:
1. Right to relief arises out of the same
transaction or series of transactions
26
Cause of Action
27
8. Partition (R69)
9. Forcible Entry and Unlawful
Detainer (R70)
10. Contempt (R71)
R2 S3
R2 S4
28
R7 S2
The body of the pleading shall set forth
its:
1. Designation
DENIED:
PLEADING / PARTS OF A
PLEADING
Rule 7 S1
The caption sets forth:
a. Name of the court
b. Title of the action
c. Docket number if assigned
The title of the action indicates the names
of the parties. They shall be named in the
original complaint or petition.
But in
subsequent pleadings, it shall be sufficient
if the name of the first party on each side
be stated with an appropriate indication
when there are other parties.
Their
Paragraph
The allegations in the body of a pleading
shall be divided into paragraphs so
numbered as to be readily identified each
of which shall contain a statement of a
single act of circumstances so far as can be
done with convenience.
A paragraph may be referred to by its
number in all succeeding pleadings.
Headings
When 2 or more causes of action are
joined, the statement of the first shall be
prefaced by the words first cause of action,
of the second by second cause of action
and so on for the others.
When one or more paragraphs in the
answer are addressed to one of several
causes of action in the complaint, they
shall be prefaced by the words answer to
the second cause of action or answer to the
second cause of action and so on; and
when one or more paragraphs are
addressed to several causes of action, they
shall be prefaced by words to that effect.
Relief
29
R7 S4
Except when otherwise specifically
required by law or rule, pleadings need not
be under oath, verified, or accompanied
by affidavit.
A pleading is verified by an affidavit that
1. the affiant has read the pleading
R7 S3
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. The signature of
counsel constitutes a certification by him
that
1. he has read the pleading,
2. that to the best of his knowledge,
information or belief there is good
ground to support it, and
3. that it is not interposed for delay
An unsigned pleading produces no legal
effect
However, the court may, in its discretion,
allow such deficiency to be remedied if it
appear that the same was due to mere
inadvertence and not intended for delay.
1. Counsel who deliberately files
unsigned pleading
30
Interpleader (R62)
Petition for review from CTA and q-j
agencies to the CA (R43 S5)
Appeal by certiorari from the CA to
SC (R45 S4)
Expropriation (R67)
Permissive Counterclaim
Partition (R69)
Cross Claim
Forcible Entry and Unlawful
Detainer (R70)
3rd 4th etc party complaint
Contempt (R71)
Complaint in intervention
Petition
31
Escheat (R91)
Cancellation or Correction of Entries
in the Civil Registry (R108)
Voluntary Dissolution of
Corporations (Corporation Code
)
Trusteeship (R98)
Writ of Amparo (
)
Petition for legal separation (
)
Writ of Habeas Data (
)
Pleadings not required be verified in
the manner and form prescribed by S4
of this Rule but the same must be
under oath:
32
33
34
Original complaint
Permissive counterclaim
Cross claim
3rd 4th etc party complaint
Complaint in intervention
Forum Shopping:
Forum shopping is an act of malpractice of
filing multiple suits in different courts
either simultaneously or successively,
involving the same parties, and asking the
courts to rule on the same or related
causes and/or to grant the same or
substantially the same relief
Petition
35
Submission of a falser
certification or non compliance
of any of the undertakings
therein
Submission of a false certification or non
compliance of any of the undertakings
therein shall constitute indirect contempt
of court without prejudice to corresponding
administrative and criminal actions
36
Counterclaim
Original complaint
A
vs
Counterclaim
Cross Claim
A
vs
and
37
(Original Complaint)
Cross Claim
Complaint In intervention
Third party is
impleaded in the
suit for CISA
A vs B
Initiatory Pleadings
C (or)
C wants to be impleaded in the action
COMPLAINT IN
INTERVENTION
Rule 6
Rule 19
A claim that a
defending party
may, with leave of
court, file against a
person not a party
to the action, called
a 3rd 4th etc party
defendant for
contribution,
indemnity,
subrogation, or any
other relief in
respect of his
opponents claim
Pleading filed by an
intervenor if he
answers a claim
against either or all
of the original
parties
Intervenor is any
person who has a
legal interest in the
matter in ligitation,
or in the success of
either of the parties,
or who has an
Permissive CC
Compulsory CC
Arises out of or is
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim
Needs verification
and certification
against forum
shopping
Not
Docket fee is
required to be paid
Failure to file
answer results in
declaration of
not
38
default
may require for its
adjudication the
presence of third
parties over whom
the court cannot
acquire jurisdiction
Initiatory pleading
Not an initiatory
pleading
Initiated by way of
complaint
By way of affidavit
For CISA
Terceria
Pleading
Affidavit
Not
case, regardless of
which party is
successful, would
amount to res
judicata in the other
case
Notice
Temporary,
auxiliary,
ancillary
remedies available to a litigant for
the protection and preservation of
his rights while the main action is
pending
Lis Pendens
Litis Pendencia
buyer beware
Notice to buyer of
existence of an
adverse claim
Provisional orders
39
Production orders
b. In
Witness protection orders
NOTE ALSO:
Injunction and replevin can be main
actions in themselves
PROVISIONAL REMEDIES
A. Preliminary
57)
Attachment
(Rule
40
2. Verified
application
through
Affidavit
attached to motion or
complaint
YES.
In all instances?
YES. Because under Summary Procedure,
not a prohibited pleading
FE/UD- No
Amount 200k MM- yes
100k- no
In case of implementation of
preliminary attachment (3rd stage)
Stages:
-
Publication
Order/Execution
motion?
Or
o
by
way of
With Summons
How attached?
HOW?
At the commencement of the complaint
By verified complaint
Implementation
o
EITHER
the
By verified motion
Garnishment
Levy on attachment
o
41
writ
of
the court)
May be resorted to
even if property is in
the possession of a
third person
INTERLOCUTORY, hence,
o
M4R R65 S4
Denial- interlocutory
Preliminary Injunction
personal property
Can be sought only
when defendant is in
actual possession of
the property
Remedy: certiorari
If FJ- appeal
Writ of Replevin
Covers
only
personal property
Commencement of
the action or at any
time before answer
Amount of the bond
is
double
the
amount
of
the
Writ of
preliminary
injunction
A writ granted at
any stage of action
or proceeding prior
to the judgment or
final order, requiring
TRO
An order to restrain
particular act or acts
of a party for a
limited period of
time
42
a party or a court,
agency or person
from a particular act
or acts. It may also
require performance
of a particular act or
acts, in which case it
shall be known as a
preliminary
mandatory
injunction
GROUNDS for preliminary injunction (R58
S3):
a. That the applicant is entitled to the
relief demanded, and the whole or
part of such relief consists in
restraining the commission or
continuance of the act or acts
complained of, or in requiring the
performance of an act or acts,
either for a limited period or
perpetually
43
HOW?
By verified complaint
By verified motion
44
45
AGAIN...
TRO- order restraining acts of a party for a
limited period of time
20 days
72 hours (ex parte)- extreme urgency
20 days non extendible
R70 S15
Court may grant preliminary injunction, in
accordance with the provisions of R58
thereof, to prevent defendant from
committing further acts of dispossession
against plaintiff.
A possessor deprived of possession
through Fe or UD may, within 5 days from
filing of complaint, present a motion in the
action for FE UD for issuance of writ of
preliminary mandatory injunction to restore
him in his possession. The court shall
decide the motion within 30 days from
filing thereof
R70 S20
Upon motion of plaintiff, within 10 days
from perfection of appeal to the RTC, the
latter may issue a writ of preliminary
mandatory injunction to restore plaintiff in
possession if the court is satisfied that
46
REMEDIES IN
INJUNCTION:
CASE
OF
PRELIMINARY
4. When
prejudicial
involved in the case
question
is
5. In case of criminal
under an invalid law
prosecution
FE and UD
o
Denied:
-
M4R
Certiorari Rule 65
Prohibitory
Injunction
Provisional remedy
Rule 58
An order granted at
any stage of an
action or proceeding
prior
to
the
judgment requiring
a party or a court,
Prohibition
Special civil action
Rule 65
Petition in case a
person exercising J,
QJ,
Ministerial
Function
acted
without jur or with
GAD amounting to
47
agency, or a person
to
refrain
a
particular act or acts
lack or excess of
jurisdiction,
for
respondent to desist
from
further
proceedings
Mandatory
Injunction
Provisional Remedy
Rule 58
An order requiring
the performance of
a particular act or
acts
Mandamus
Directed against a
party
Provisional remedy
By way of motion
3. SC
Grounds: (R59 S1)
a. When it appears from the
verified
application,
and
such other proof as the court
may require, that the party
48
R59 S6
Subject to the control of the court in which
the action or proceeding is pending, a
receiver shall have the power to
1. Bring and defend, in such capacity,
actions in his own name
By verified complaint
3. To receive rents
IF after judgment,
-
By way of motion
6. To make transfers
49
Jurisdiction/Venue:
Termination of receivership; compensation
of receiver
R59 S8
Whenever the court, motu proprio or on
motion of either party, shall determine that
the necessity for receiver no longer exists,
it shall, after due notice to all interested
parties and hearing,
1. settle the accounts of the receiver,
50
Relief sought
applicant
Nullity of marriage
Annulment of marriage
Legal separation
Criminal cases:
o
Rape
RA9262
is
support
for
S1- Application
Denied, REMEDY:
Counterbond
property
double
At
the
amount
of
IMMEDIATELY EXECUTORY!
Where filed?
FAMILY COURT
commenced
by
affidavits,
depositions, or other
authentic documents
in support thereof
51
S2- Comment
A copy of the application and all supporting
documents
-
unless a different
period is fixed by the
court
upon
his
motion.
resources or means
of the adverse party,
and
S3- Hearing
terms of payment or
mode for providing
the support.
S4- Order
his
52
offending party,
her parents,
grandparents,
or guardian
S7- Restitution
When the judgment or final order of the
court finds that the person who has been
providing support pendente lite is not liable
therefor,
DENIED,
-
SCA initiated by
petition
- declaratory
relief (62)
- review
of
adjudication
of comelec,
coa (64)
53
/ UD (70)
Partition (69)
Expropriation
(67)
c, m, p (65)
qw (66)
contempt
(71)
1. Interpleader (62)
2. Declaratory Relief and other similar
remediesv (63)
Prohibition,
Mandamus
6. Expropriation (67)
7. Foreclosure of Real Estate Mortgage
(68)
8. Partition (69)
9. Forcible
(70)
Entry/Unlawful
Detainer
Interpleader
Rule 61
Without leave of
court
Original / Special
Civil action
Filed by complaint
for interpleader
MOTION TO DISMISS
DEMURRER TO EVIDENCE
PARTS OF A PLEADING
he may bring an
action
against
conflicting litigants to
compel
them
to
interplead
and
litigate their several
claims
among
themselves
At any time
Intervention
Rule 19
With leave of court
Ancillary to main
action
If
for
plaintiffcomplaint
in
intervention
If for defendantanswer
in
intervention
Before judgment
JURISDICTION:
INTERPLEADER (Rule 62)
54
VENUE:
Real- R4 S1
Personal- R4 S2
S3- Summons
Summons shall be served upon the
conflicting claimants, together with a copy
of the complaint and order.
on other appropriate
specified in Rule 16.
grounds
S6- Determination
After the pleadings of the conflicting
claimants have been filed, and pre trial has
been conducted in accordance with these
Rules,
-
the
court
shall
proceed
to
determine their respective rights
and adjudicate their several claims.
55
JURISDICTION/VENUE:
deed,
will,
contract, or
Declaratory Relief:
-
executive order,
regulation,
ordinance, or
any
other
regulation
of
pecuniary
Queting of title:
-
RTCincapable
estimation
Consolidation of ownership:
-
RTCincapable
estimation
of
pecuniary
of
pecuniary
Reformation of contracts:
governmental
RTCincapable
estimation
reformation of an instrument
or
consolidate ownership
petition
for
Requirements:
S2- Parties
All persons who have or claim any interest
which would be affected by the declaration
shall be made parties, and
-
as
56
EO, or
regulation, or
shall be entitled to be
heard
upon
such
question
Constitutional Basis:
A9A S7 (basis of Rule 64)
orders,
resolutions
of
S1- Scope
Final orders or judgments of COA and
COMELEC
S2- Mode
SC- petition for certiorari under Rule 65
APPEAL R41
o
S3- Time
Within 30 days from notice of judgment
IF M4r denied, filed within remaining period
and not less than any event reckoned from
notice of the denial
57
18 copies
S5- Form/Contents
1. Verified petition, 18 copies, with
certified true copy of judgment
2. Respondent is Comelec or CoA,
person interested in sustaining
3. Finding of fact supported by
substantial evidence, final and non
reviewable
4. State
specific
material
showing it was filed on time
dates
Rule 65
Applies to orders of
judicial,
quasi
judicial
court
or
tribunals
60 days from denial
of
motion
for
reconsideration (AM
7-7-12-SC)
Motion
for
reconsideration
is
required
Petition filed before
RTC, CA, SC
Rule 64
Applies
to
judgments,
final
orders, resolutions
of
CoA
and
COMELEC
30 days from notice
of judgment or final
order or resolution
sought
to
be
reviewed
NOT
Petition filed before
SC
with
form
and
Rule 43
Appeal/Petition for
review of decisions
of
Quasi
Judicial
Bodies
15 days from notice
of
award,
final
judgment, resolution
Rule 64
Petition for review of
judgments and final
orders or resolutions
of COMELEC and
CoA
30 days from notice
of judgment or final
order sought to be
reviewed
58
With the CA
With the SC
d. presidential decree
e. proclamation
f.
CERTIORARI, PROHIBITION,
MANDAMUS (Rule 65)
order
g. instruction
Constitutional Basis:
h. ordinance
A8 S1 P2
i.
regulation
i. is in question
A8 S5 P2
-
Review
d. toll
Revise
Reverse
Modify
Affirm
o
a. treaty,
b. international or executive
agreement
c. law
59
Certiorari
-
Prohibition
Special civil action directed against
any tribunal, board, officer or
person exercising judicial, quasi
judicial, or ministerial functions, to
desist from further proceedings in
the event that the same acted with
grave
abuse
of
discretion
amounting to lack or excess of
jurisdiction
Mandamus
-
Certiorari
discretionary
QUALIFICATIONS in ALL 3:
Mandamus
Ministerial
Prohibition
Discretionary
and ministerial
To annul order
To
order To
restrain
performance
performance
60 days from receipt of final judgment or order or
from denial of motion for reconsideration
Against entity Against entity Against
entity
or
person or
person or
person
exercising j or exercising
exercising j, ej,
ej function
ministerial
ministerial
function
function
Without or GAD
Unlawful
Without or GAD
neglect
of
ministerial duty
or
excluded
another from a
right or office
Correct errors Performance of To restrain or
of jurisdiction
act or desist prevent
from excluding usurpation
of
another from a jurisdiction
right or office
Errors of
Jurisdiction
Court acted with
GAD amounting to
lack or excess of
jurisdiction
Action of the court
Correctible
by
certiorari
Rule 65
Errors of
Judgment
Misapprehension of
law or facts by the
court
Valid proceeding
Correctible
by
appeal
Rules 40-43, 45
60
Exception:
1. where the order is a patent nullity,
as where the court has no
jurisdiction
REQUIREMENTS:
1. verified petition in 7 legible copies
61
General rule:
CA to SC- 60 days
65 vs 45 (simplified)
no appeal or no plain,
speedy, adequate remedy
Rule 65
60 days
Motion
for
reconsideration
required
Questions
of
jurisdiction
SC, CA, RTC
Special civil action
Rule 45
15 Days
Not
Questions of law
SC
Mode
appeal/petition
review
of
for
CA to SC- Rule 45
The above-stated is the PRINCIPLE OF
HIERARCHY OF COURTS
-
62
M4R based on
Rule 65
Of
interlocutory
order,
as
preparation to file
certiorari
M4R based on
Rule 37
Of final judgment or
final
order,
not
including
interlocutory orders
Rule 66 S1
An action for usurpation of a public office,
position, or franchise may be commenced
by a verified petition brought in the name
of the Republic of the Philippines against:
a. a person who usurps, intrudes into,
or unlawfully holds or exercises a
public office, position, or franchise
in short...
2 kinds of quo warranto:
1. usurpation of public office
63
A3 S9
Jurisdiction and Venue:
RTC, CA, SC
If Solicitor General files- RTC, CA, SC
If other person files- R4 S1 R4 S2
Quo Warranto
Election Code
Election Code
COMELEC, RTC. MTC
Omnibus
Election
Code
Not
Can be filed with
MTC
Contest
right
of
elected
public
officer to hold public
office
Ineligibility
or
disqualification
of
person elected to
hold the office
Within 10 days after
proclamation
of
candidate
Filed by any voter
Quo Warranto
Rule 66
Rules of Court
RTC, CA, SC
Basis: A8 Consti,
R66
Subject to BP129
Cannot be filed with
MTC
Show title to public
office or exercise
public franchise
Usurpation,
forfeiture,
association
illegal
Constitutional Basis:
64
Nature of Action:
-
QUASI IN REM
Jurisdiciton/Venue:
MTC-RTC 20-50 OMM MM lower higher
Where real property or portion thereof is
situated (R4 S1)
execution
of
1. JUDICIAL FORECLOSURE
To have the property seized and sold by
the court order to the end that the
proceeds thereof be applied to payment of
plaintiffs claim
2. assignments, if any
2. EJ FORECLOSURE
3. names and residences of mortgagor
and mortgagee
6. amount
thereon
claimed
to
be
unpaid
b. Filing of ordinary action to collect
debt
65
Equity of
Redemption
Exists
in
J
foreclosure
By mortgagor during
not less than 90
days nor more than
120 days from entry
of
judgment
or
foreclosure or even
after
foreclosure
sale
but
before
judicial confirmation
of the same
final
or
4. Definite-
when
the
resulting
division is permanent, final, and
absolute
and
approves
the
Classes of partition:
6. Extrajudicial-
division may be
made by testator himself or by
some person named by deceased or
amicably by interested heirs by
common agreement (Rule 74 S1)
R69 S1
A person having the right to compel
partition of real estate may do so as
provided in this Rule, setting forth in his
complaint the nature and extent of his title
and an adequate description of the real
estate of which partition is demanded and
joining as defendants all other persons
interested in the property
Covers: REAL or PERSONAL PROPERTY
Jurisdiction/Venue:
Kinds of Partition
66
1. Order of partition
2. Order of accounting
Forcible Entry
Person in physical
possession of land
was
deprived
of
possession through
FISTS
Unlawful ab initio
Not require demand
to vacate
Prove
prior
possession
until
deprived
1 y from date of
actual entry on land
Unlawful Detainer
Withholding by a
person of possession
of land or building
Legal but becomes
illegal
Pay AND vacate;
jurisdictional
No need to prove
prior
physical
possession
1 year from date of
last demand
1. Accion
interdictalsummary
action for recovery of physical
possession of the property where
dispossession has lasted for more
than 1 year; FE or UD
Jurisdiction/Venue:
MTC of the place where property or portion
thereof is situated (R4 S1)
Proceedings SUMMARY IN NATURE! (Rules
on Summary Procedure)
of
real
right
of
recovery of OWNERSHIP
67
VERIFIED!
S5- Answer
Within 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 cross
claims shall be filed and served within 10
days from service of the answer in which
they are pleaded.
Within 10
summons
DAYS
Rule 70
Summ Pro
from
service
of
68
69
f.
Memoranda
h. Motion to
default
declare
defendant in
i.
j.
Reply
(prohibited
l.
NO
M4R
pleading)
Interventions
S20- 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.
70
2 classifications of contempt:
1. Direct Contempt (R71 S1)
2. Indirect Contempt (R71 S2)
DISCUSSION:
1. DIRECT CONTEMPT (S1)
R70 S20
Upon motion of plaintiff, within 10 days
from perfection of appeal to the RTC, the
latter may issue a writ of preliminary
mandatory injunction to restore plaintiff in
possession if the court is satisfied that
-
A remedy
Acts covered:
-
Misbehaviour in presence of or so
near the court as to obstruct or
interrupt proceedings before the
same
Offensive
personalities
people in court
towards
Contempt
-
Contempt of Court
-
Punishment:
(RTC/of equivalent or higher rank)
F: not exceeding 2k OR
71
person adjudged to be
entitled thereof
(lower court)
Note highlighted: case in MTC
where case is pending
Actions covered:
a. Misbehaviour 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, judgment of
a court, including act of
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
possession given to the
e. Assuming to be an attorney
or officer of the court and
acting as such without
authority
f.
72
Direct Contempt
In presence of a
judge, motu proprio
or upon motion
Cant initiate
In presence or so
near judge
Rem: certiorari
remedy
Indirect Contempt
Initiate
Not in presence of
judge, disobey court
order
Rem: appeal
Original action
or encumbrancer
of the property affected thereby,
be deemed to have constructive notice of
the pendency of the action, and
only its pendency against the parties
designated by their real names
buyer beware
It is not a pleading
Rule 13
Section 14
In an action affecting the title or the right
of possession of real property, the plaintiff
and the defendant, when affirmative relief
is claimed in his answer, may record in the
office of the registry of deeds of the
province in which the property is situated
73
(PAMNOJDORS)
Notice
Order
Judgment
Demand
Offer of judgment
Resolution
Similar papers
Service by mail
R13 S7
Service by registered mail shall be made
by
depositing the copy in the post
office,
in a sealed envelope
How is it done?
Personal Service
R13 S6
Service of papers may be made
By delivering personally a copy to
the party or his counsel or
By leaving it in his office with the
clerk or a person having charge
thereof
If no person is found in his office or his
office is not known or he has no office,
then,
74
R13 S11
Whenever practicable, the service and
filing of pleadings and other papers shall
be done personally.
Except with respect to papers emanating
from the court, a resort to other modes
must be accompanied by a written
explanation why the service or filing was
not done personally.
A violation of this rule may be cause to
consider the paper as not filed.
75
docket and
76
Summons
Writ or process in the name of the
RP, issued by the Branch clerk of
court informing the defendant of
the filing of the case against him, to
file an answer within the
reglementary period, or else, be
declared in default
Office of the Clerk
of Court
Branch Clerk of
Court
Office
Person
Receives complaint
and payment of the
docket fees
Serves summons
upon the defending
party
2 kinds of summons:
1. Original Summons- issued by the
branch clerk of court to the
defendants upon the filing of the
complaint and the payment of the
requisite docket fees
Summons
Subpoena
a writ or a process
issued to a
defending party by
the clerk of court,
delivered by a
sheriff, his deputy,
or proper court
office, or any
suitable person
(R21 S1)
A process directed
to a person
requiring him to
attend and to testify
at the hearing or
trial of an action, or
at any investigation
authorized by the
court issuing the
summons, with the
purpose of obtaining
jurisdiction over the
person of the
defendant and
giving him notice
that an action has
been commenced
against him
conducted by
competent authority
or for the taking of
his deposition.
(Subpoena ad
testificandum)
Purpose is to obtain
jurisdiction over
person of
defendant, and to
give notice to
defendant that an
action has been
commenced against
him, ordering
defendant to answer
the complaint within
the time fixed by
these Rules, and
unless defendant
answers, plaintiff
will take judgment
by default and may
be granted the relief
applied for (R14 S2)
Served on the
defendant
May be served to a
non-party
Needs tender of
kilometrage,
attendance fee, and
reasonable cost of
production fee
Original or alias
Ad testificandum or
A process directed
to a person
requiring him to
bring with him any
books, documents,
or other things
under his control
(Subpoena duces
tecum)
77
duces tecum
Upon filing of the
complaint and
payment of requisite
docket fees
During trial or
investigation
IN PERSONAM
Service in person
Substituted service
IN REM
Service in person
Substituted Service
Tendering summons to
defendant (R14 S6)
In case defendant refuses to receive or sign
for it, by tendering it to him, done through:
1. Leaving copy of the summons to the
defendant who refuses to receive it
Publication
Extraterritorial Service
QUASI IN REM
Service in person
Substituted service
Publication
Substituted Service of
Summons on defendant (R14
S7)
Requisites;
Impossibility of the personal service
of summons within a reasonable
time
The efforts exerted to locate the
person to be served
To whom served / how?
By leaving copies of the summons at:
78
1. Of legal age
2. With sufficient knowledge and
comprehension that what he is
receiving on behalf of defendant are
summons notifying defendant that a
suit was brought against the same,
AND PREFERABLY KNOWS HOW TO
SPEAK ENGLISH
Service by publication in a
newspaper of general
circulation
R14 S15
Service by leave of court by publication in a
newspaper of general circulation in such
place 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 of the defendant.
79
2. By 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 of
defendant, or
Extraterritorial
Service
Requisites;
Arises in case
defendant is non
resident, in abroad,
action in rem, by
way of personal
service outside of
Phils, by publication
in a newspaper of
general circulation,
or in any other
manner the court
may deem sufficient
Impossibility of the
personal service of
summons within a
reasonable time
The efforts exerted
to locate the person
to be served
To whom served /
how?
R14 S14
In any action where the defendant is
designated as an unknown order, or the
like, or whenever his whereabouts are
unknown and cannot be ascertained by
diligent inquiry, service may, by leave of
court, be effected upon him by
publication in a newspaper of general
circulation and in such places and for
such time as the court may order.
-
Identity is unknown or
whereabouts are unknown
By leaving copies of
the summons at:
Defendants
residence with some
person of suitable
age and discretion
then residing
therein or
By leaving the
copies at
defendants office or
regular place of
80
2. DENY M2D
As defendant, following Rule 16 S4, I will
file an answer within the balance of the
period prescribed by Rule 11 to which I am
entitled at the time of serving my motion,
but not less than 5 days in any event,
computed from my receipt of notice of
denial. Then proceed with the trial, and
when the decision is adverse against me, I
will file an appeal assigning as error the
denial of the motion to dismiss. And when
the denial is tainted with grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of the court, I will
file for certiorari under Rule 65.
R14 S8
When persons associated as an entity
without a juridical personality are sued
under the name by which they are
generally or commonly known, service may
be effected upon all the defendants by
serving upon any one of them, or upon
the person in charge of the office or
place of business maintained in such
name. But such service shall not bind
individually any person whose connection
with the entity has, upon due notice, been
severed before the action was brought.
Upon Prisoners
3. ISSUANCE OF ALIAS SUMMONS
R14 S9
When defendant is a prisoner confined in a
jail or institution, service may be effected
upon him by the officer having the
management of such jail or institution
who is deputized as a special sheriff
for said purpose.
1. Ordinary defendant
Upon domestic private juridical
entity
Upon an entity without juridical
personality
R14 S11
81
Extraterritorial Service
R14 S12
R14 S15
R14 S16
82
NOT in:
1. Complaint in intervention- because
third person submitted to
jurisdiction of the court
WALA!
Pag pinaserve mo sa process server,
meron, but not required (abutan mo na
lang para hindi kawawa, sige ka, baka hindi
i serve)
83
Prescription
DOES NOT INCLUDE: lack of jurisdiction
over the person of the defending party
(Wala to!)
NO!
Dismissal shall only be by MOTION!
Motion to dismiss
Order of Default/Judgment by
Default (Rule 9)
84
GRANTED:
Refile
Move for alias summons
Motion to dismiss
A motion to dismiss in an
application for relief filed by an
original defendant, a defendant in a
permissive counterclaim, cross
claim, 3rd 4th etc party complaint,
complaint in intervention, filed
within the time for but before filing
the answer to the complaint or
pleading asserting a claim
After service of summons, before
filing of a responsive pleading
NOTE: Motion to dismiss is not a pleading!
It is not a responsive pleading! Hence, if
there is motion to dismiss, the complaint
may still be amended as a matter of right
even if there is a motion to dismiss!
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.
DENIED:
85
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.
GRANTED:
Refile, except if GAD, then certiorari
Rule 65
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.
GRANTED:
Refile
86
GRANTED:
Appeal
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.
Aka PRESCRIPTION
GRANTED:
Appeal
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.
87
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.
i.
j.
GRANTED:
General Rule: refile plus comply
with condition precedent, EXCEPT:
88
Rule 9 S1
89
90
LITIGATED
MOTION
NON LITIGATED
MOTION
Comply with
requisites for written
motion
No need to comply
with all the
requirements, but
with need to hear on
the motion
Special Motion
A motion addressed to the
discretion of the court
What is a motion?
Motion for summary judgment
R15 S1
A motion is an application for relief other
than by a pleading
Litigated Motion
91
OF the 10 grounds,
92
Rule 12
R116 S9
Address alleged
defects in the
criminal complaint
or information
Purpose is to
prepare responsive
pleading
Purpose is to enable
properly to plead
and prepare for trial
5. In writing
93
9. Proof of service
R12 S4
If the order is not obeyed, or in case of
insufficient compliance therewith, the court
may order the striking out of the pleading
or the portions thereof to which the order
was directed, or make such order as it
deems just.
(File a motion to strike out the pleading)
IN SHORT:
Amendment is the process of
adding or striking out or correcting
a name or allegation
Amendment as a matter of right
-
Kinds of amendments:
1. Amendment as a matter of
right: (R10 S2)
94
5. Substantial amendments
2. Amendment by leave of court:
(R10 S3)
Except as provided in the next preceding
section, substantial amendments may be
made only upon leave of court
-
Amendment is substantial
4. Amendments to conform or to
authorize presentation of
evidence (R10 S5)
When issues not raised in the pleadings
are tried with the express or implied
consent of parties, they shall be treated as
if raised in the pleadings, pleadings may be
amended to conform to the evidence, and
failure to amend does not affect the result
of the trial of these issues
6. Amendment to confer
jurisdiction
Amendment as a matter of right, so far as
no responsive pleading is served
95
Substantial amendment
Order is interlocutory
Relate to Rule 2
-
Relate to Rule 3
-
Service of summons
required
Amended
Pleading
Supplemental
Pleading
Refers to facts
existing at the time
of the
commencement of
the action
Refers to facts
arising after the
filing of the original
pleading
Can be made as
matter of right when
no responsive
pleading has yet
been filed
When amended
pleading is filed, a
new copy of the
entire pleading must
be filed
A substantial
pleading does not
require the filing of
a new copy of the
entire pleading
Amendment as a
A supplemental
96
matter of right is to
be answered before
the filing of the
responsive pleading,
(within 15 days after
being served with a
copy thereof)(R11
S3)
Amendment by
leave of court is to
be answered within
10 days from notice
of the order
admitting the same.
An answer earlier
filed may serve as
the answer to the
amended complaint
if no new answer is
filed (R11 S3)
pleading may be
answered within 10
days from notice of
the order admitting
the same, unless a
different period is
fixed by the court.
The answer to the
complaint shall
serve as answer to
the supplemental
complaint if no new
or supplemental
answer is filed (R11
S7)
Supersedes original
pleading
Supplements
original pleading
With or without
leave of court
Relate to Rule 16
The court may either deny the
motion to dismiss, grant the motion
to dismiss, or ORDER THE
AMENDMENT OF THE PLEADING
As a matter of right
As a matter of discretion
allow an answer or
other pleading to be filed
after the time fixed by these Rules
97
o
DENIED:
-
plead
o
NO (prohibited pleading)
EXCEPT:
1. lack of jurisdiction over the person
of the defending party
2. lack of jurisdiction over the person
of the defendant
3. failure to comply with the Barangay
Conciliation Proceedings
EXCEPTION TO EXCEPTION:
Small Claims Cases- motion to dismiss
absolutely hindi pwede
Judgment by
Default
Decision or
judgment by the
court after order of
default and
presentation of
evidence ex parte
by plaintiff
ORDER OF DEFAULT
Rule 9 S3 provides that a defending party
who fails to file an answer to an initiatory
pleading within the time allowed therefor
may be declared in default.
remedy is APPEAL
98
S4 R65
Interlocutory
o
Denied,
CERTIORARI RULE 65 with TRO or injunction
-
REMEDY:
MOTION TO LIFT ORDER OF DEFAULT
Verified, FAME, Affidavit of Merit
(note what it is, and in what
instances required [all FAME])
DENIED,
Denied,
99
DENIED,
CA M4R Rule 52
DENIED,
SC R45 Petition for Review on Certiorari
apply Neypes, Hierarchy of courts
DENIED,
SC M4R Rule 52
Lose standing
R9 S3 in relation to Rule 10
-
Summary Proceedings
Motion to declare defendant in
default is a PROHIBITED PLEADING
As plaintiff in such a case, file MOTION TO
RENDER JUDGMENT
As defendant, dont file motion to admit
answer
-
PROHIBITED PLEADING
R1 S6- Liberal
application of the
rules, HENCE, you
can file answer
R29
Summary Procedure
100
Basis: R52 S1
Denied. Remedy?
JUDGMENT BY DEFAULT
Nature: Final Judgment
R9 in relation to R11
Based on presentation of evidence ex parte
REMEDY:
Motion to set aside judgment or final order
due to FAME
Denied,
Motion for reconsideration
Denied,
CERTIORARI Rule 65 with TRO/injunctionPREFERRED over appeal
-
Denied. Remedy?
File a motion for reconsideration of the
judgment or final resolution within 15 days
from service thereof before the SC, with
proof of service on the adverse party.
Basis: R52 S1
101
4. Collateral Attack
Answer to amended counterclaim
V. FILING OF ANSWER
Answer- the pleading setting forth the
defending partys defenses
(Bears the same parts of a pleading)
WITHIN WHEN?
What are the responsive pleadings?
Rule 6 of the Rules of Court in relation to
Rule 11 provides for the following
responsive pleadings:
Reply
102
2. Compulsory counterclaim
3. Answer to permissive
counterclaim
R11 S4
A permissive counterclaim must be
answered within 10 days from service
R14 S15
103
6. Answer to complaint in
intervention
R19 S4
The answer to the complaint in intervention
shall be filed within 15 days from notice
of the order admitting the same, unless
a different period is fixed by the court
11. Rejoinder
7. Reply
(?)
R11 S6
A reply may be filed within 10 days from
service of the pleading responded to
104
17-18.
R11 S3 (?)note the periods
Counterclaim
Any claim which a
defending party
may have against
the opposing party
presence of third
parties over whom
the court cannot
acquire jurisdiction
presence of third
parties over which
the court cannot
acquire jurisdiction
Need not be
answered, not result
in default
Must be answered or
else defendant can
be declared in
default
Not an initiatory
pleading
Initiatory pleading
Cross Claim
Any 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
counterclaim therein
Permissive
Counterclaim
Arises out of or is
necessarily
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim
105
1. Negative defense
R6 S5
INVERTED TRIAL
R6 S5
An affirmative defense is an allegation of
new matter which, while hypothetically
admitting the material allegations in the
pleading of the claimant, would
nevertheless prevent or bar recovery by
him. The affirmative defenses include:
a. Fraud
b. Statute of limitations
c. Release
d. Payment
e. Illegality
f.
Statute of frauds
g. Estoppel
h. Former recovery
i.
Discharge in bankruptcy
j.
Kinds of Denials:
1. Specific Absolute Denial
106
2. Usury in a complaint
3. Summary procedure
2. Partial specific denial
By an allegation of lack of
knowledge or information sufficient
to form a belief as to the truth or
falsity of the averment in the
opposing partys pleading
Except:
1. Fraud/forgery
2. Not a party to the actionable
document
Production or inspection of
documents or things under (Rule
27)
EXCEPT:
1. Actionable Document
107
Discussing each:
1. Depositions pending action
(R23)
Taken conditionally, to be
used at the trial only in case
deponent is not available
Objective is to perpetuate
testimony of a witness for future
use
108
5. Production or inspection of
documents or things under Rule
27
Use of depositions:
1. Impeach adverse partys witness
(relate to evidence)
2. Residing 100 km away, sick or
infirm
Production/Inspection of documents or
things
For photographing, copying,
inspecting
109
Production or
Inspection of
Documents or
Things
Subpoena
Governed by Rule
101
Governed by Rule
28
Special proceeding
Mode of discovery
Mode of discovery
Process
File a petition
File a motion
By motion
By request
Filed by Regional
Director of DOH
Production or
Inspection of
Documents or
Things
Original of
Evidence in
Custody of
Adverse Party
Mode of discovery
Exception to the
best evidence rule
By motion
By notice
If there is no original
document, because
such is in the
presence of adverse
party, the
requesting party can
ask for production of
the original by way
of notice
Without prior
knowledge as to
contents
With prior
knowledge of
contents of the
document, because
the requesting party
has the secondary
evidence
Physical and
Mental
examination of
persons
110
111
Another:
JUDGMENT ON THE PLEADINGS
(Rule 34)
S1
nullity or
annulment of marriage or
irrelevant allegations
immaterial allegations
Judgment on the
Summary
112
Pleadings
Judgment
Filed by plaintiff
Filed by defendant
Based on pleadings,
depositions,
admissions,
affidavits
Answer fails to
tender an issue or
there is an
admission of
material allegations
No genuine issue
between the parties
On the merits
Interlocutory or on
the merits
If filed by plaintiff,
filed at any time
before answer is
served
Answer
Reply to answer
REJOINDER
113
Non appearance
may be excused
only if valid cause is
shown, or
representative shall
appear in behalf
duly authorized in
writing to enter into
amicable
settlement, submit
to ADR, enter into
stipulations of facts
and of document
Rejoinder
By MOTION
If the motion is not filed, is the case
dismissed for failure to prosecute?
-
It is not dismissed
Pre Trial in
Criminal Cases
Mandatory requirement
After arraignment,
within 30 days from
the date the court
acquires jurisdiction
over the accused
Rule 118
Rule 18
Counsel of accused
are required to
appear
Failure of counsel of
accused or
prosecutor to
appear, and without
acceptable excuse
for lack of
cooperation, court
may impose proper
sanctions or
penalties
Failure of plaintiff to
appear, dismissal of
the case with
prejudice, unless
otherwise ordered
by the court
Failure of defendant
to appear, plaintiff
to present evidence
ex parte
Presence of private
offended party is
not required (as only
required to appear
at arraignment)
Pr trial agreement
is in writing, signed
by accused and
counsel, or else,
cannot be used
against accused
Signed by parties
and counsel (?)
Considerations in
pre trial conference:
Considerations in
pre trial:
114
Plea
bargaining
Stipulation of
facts
Marking of
identification
of evidence
of the parties
Waiver of
objections to
admissibility
of evidence
Modification
of order of
trial if
accused
admits the
charge but
interposes a
lawful
defense
Such matters
as will
promote a
fair and
expeditious
trial of the
criminal and
civil aspects
of the case
commissione
r
Possibility of
amicable
settlement or
submission
to alternative
modes of
dispute
resolution
Propriety of
rendering
judgment on
the
pleadings,
summary
judgment,
dismissing
the action
should a
valid ground
therefor be
found to
exist
Simplification
of the issues
Necessity or
desirability of
amendments
to the
pleadings
Advisability
or necessity
of
suspending
the
proceedings
Possibility of
obtaining
stipulations
or
admissions
of facts and
of
documents
to avoid
unnecessary
proof
Limitation on
the number
of witnesses
Advisability
of
preliminary
conference
of issues to
Such other
matters as
may aid in
the prompt
disposition of
the action
(simplified)
Pre Trial In
Criminal
After arraignment
115
f.
Failure to appear by
plaintiff, dismissal of
case with prejudice
Failure to appear by
defendant, plaintiff
to present evidence
ex parte
i.
116
f.
(R18 S4)
1. Duty of the parties and their
counsel to appear at the pre trial
117
PRESENTATION OF EVIDENCE EX
PARTE
Conducted by Court of CLERK OF COURT
-
118
REMEDIES:
File a motion for reconsideration + Set
aside the Evidence Ex parte
-
REMEDIES:
119
1. PROPONENTS / PLAINTIFFS
TESTIMONIES AND EVIDENCE IN
CHIEF as well as that of
witnesses
Deemed admitted
JUDGMENT ON THE
PLEADINGS
X. TRIAL
The best part of law practice
Cause of action
Direct testimony
120
To impleach
testimony of
witness
To refresh
memory of
the witness
Ididiscuss din
to isa isa sa
memorandum
Misleading questions
Cross Examination
Requires knowledge of:
-
Facts
Evidence
Defenses
Leading
Re Direct Examination
Re establish what was destroyed
during the cross examination
Re Cross Examination
Destroy what was re established in
the re direct examination
NOTE: Identify all witnesses
Offer of
Testimony
Made at the time
the witness is
presented on the
witness stand
Offer of Evidence
After termination of
presentation of
evidence of
prosecution
Evidence in chief
Evidence supporting allegations in
the complaint
121
Offer of evidence
Then,
Comment or objection
-
Secondary
Not identical
If granted but on
appeal order of
dismissal is
reversed, defendant
is deemed to have
waived the right to
present evidence
With prejudiceappeal
Without prejudicerefile
Then,
Order of admission/Exclusion of
evidence
Admitted; Exh A, Exh B
In Criminal Cases,
There is demurrer to evidence in Summary
Procedure
-
Demurrer to
evidence in Civil
Procedure
Demurrer to
evidence in
Criminal
Procedure
Rule 33
No leave of court
required
With or without
leave of court
If with leave of
court, accused could
present evidence if
demurrer is denied
M2D
Rule 33
Rule 16
Before filing of
responsive pleading
10 grounds
If granted, case
dismissed
If granted, case
dismissed, remedy
depends:
If without leave of
court, accused could
not present
evidence if demurrer
is denied
If court finds that
evidence is
insufficient (plaintiff
122
insufficient,
demurrer granted,
accused is acquitted
Judgment of
acquittal not
appealable, hence,
DJ sets in
Judgment of
dismissal is
appealable
Judgment of
acquittal is not
appealable; DJ sets
in
If demurrer is
granted but on
appeal, order of
dismissal is
reversed, defendant
is deemed to have
waived the right to
present evidence
(simplified version)
D2E Civil
Rule 33
With or without
leave of court
If granted, but on
appeal is reversed,
defendant loses the
right to present
evidence, case
submitted for
decision
D2E Criminal
Without LoC- if
denied, defendant
cannot present
evidence
If court denies
demurrer,
defendant will
present evidence
If court denies
demurrer,
2. DEFENDANTS EVIDENCE IN
CHIEF
Direct Examination
Cross Examination
Re Direct Examination
Re Cross Examination
Formal offer of evidence
123
Comment
Objection
Offer
Tender of excluded evidence
DEFENDANT RESTS ITS CASE
3. REBUTTAL EVIDENCE
in writing,
5. MEMORANDUM
After trial,
XI. JUDGMENT (Rule 36)
CONSTITUTIONAL BASIS:
A8 S14(basis for Rule 36)
No decision shall be rendered by any court
without expressing therein clearly and
distinctly the facts and the law on which it
is based.
No petition for review or motion for
reconsideration of a decision of the court
shall be refused due course or denied
without starting the legal basis therefor.
Kinds of Judgments:
JUDGMENT UPON A
COMPROMISE
124
(A2028-2046, NCC)
Judgment upon
compromise
Judgment by
confession
Provisions and
terms are settled
and agreed upon by
the parties to the
action and which is
entered by the
consent of the court
An affirmative and
voluntary act of
defendant himself.
The court exercises
a certain amount of
supervision over the
entry of judgment
CLARIFICATORY JUDGMENT
2 kinds of judgment by confession:
125
Without prejudice
Refers to dismissal of a case
without prejudice to its being refiled
SEVERAL JUDGMENT
R36 S4
SEPARATE JUDGMENT
R36 S5
Judgment rendered disposing of a
claim among several others
presented in a case after a
determination of issues material to
a particular claim and all
counterclaims arising out of the
126
SPECIAL JUDGMENT
R39 S11
Judgment requiring performance of
an act other than execution of
judgments for money execution of
judgments for a specific act,
a certified copy of the judgment
shall be attached to the writ of
execution and shall be served by
the officer upon the party against
whom the same is rendered, or
upon any other person required
thereby, or by law, to obey the
same, and such party or person can
be held liable for contempt for
disobedience of such special
judgment
CONDITIONAL JUDGMENT
FINAL JUDGMENT
AMENDED JUDGMENT
SUPPLEMENTAL JUDGMENT
JUDGMENT ON DEMURRER TO
EVIDENCE
R33
judgment rendered by court
dismissing case upon motion of
defendant, made after plaintiff
rested his case, on the ground that
upon the facts presented by plaintiff
Conclusiveness of judgment
127
Stare Decisis
Obiter Dictum
XII.
REMEDIES BEFORE
JUDGMENT BECOMES FINAL
AND EXECUTORY:
128
MTC decisions
2. Newly discovered evidence which
he could not, with reasonable
diligence, have discovered and
produced at the trial and which if
presented would probably alter the
result
MTC
RTC
Notice
/
Record
on
Appeal
under
R40
Petition
for
Review
under
Rule 42
(from
RTC
decisions
in
exercise
of
appellate
jurisdicti
on)
M4R
Under
Rule 37
CA
Petitio
n4
review
on
certior
ari
under
M4R
Under
Rule 52
SC
SC
M4R
Rule
52
129
M4R
Under
Rule 37
Notice
or
Record
on
appeal
under
Rule 41
Record on
appeal
or
record
on
appeal
for
Review
for
Review
(Appeal
?)
Review on
Certiorari
Of MTC
decisions
Of RTC
Decision
s
original
jurisdicti
on
Of RTC
decision
s
appellat
e
jurisdicti
on
Of
quasi
judicial
bodies
Of CA,
Sandiganba
yan, CTA,
RTC
decisions
Questions
of fact law
or both
Question
s of fact
law or
both
Question
s of fact
law, or
both
Questio
ns of
fact law
or both
Questions of
law
To RTC
To CA
To CA
To CA
To SC
General Rule:
CA
M4R
Under
Rule 52
SC
EXCEPTIONS:
Petitio
n4
review
on
certior
ari
under
SC
M4R
Rule
52
Rule 40
Rule 41
Rule 42
Rule
43
Rule 45
Memorand
um of
appeal
Appellan
ts Brief
Petition
for
Review
Petition
For
Review
Petition for
Review on
Certiorari
Notice or
Notice
Petition
Petition
Petition for
130
Relate to appeal
o
2. Petition
for
Annulment
judgment (Rule 47)
of
judgment,
Annulment of judgment
131
BY MOTION- 5 years
AFTER 5 years
Important condition:
-
S2- Grounds
4. Collateral Attack
EXECUTION OF JUDGMENT
-
Execution
-
f.
Case number
132
4. Improvidently issued
5. Defective in substance
Rule: Matter of right on part of winning
party (execution), and court cannot refuse
Except:
1. When judgment turns out to be
incomplete or conditional
Except:
1. When there is ambiguity in the
dispositive portion
4. Execution is enjoined
2. Where
extensive
and
explicit
discussion and settlement of the
issue is found in the body of the
decision
Execution as a
matter of right
Period to appeal has
already lapsed, no
appeal is perfected
Ministerial duty of
the court provided
there
are
no
supervening events
133
order execution of a
judgment or final
order even before the
expiration
of
the
period to appeal
2. Wastage
debtor
of
asset
by
judgment
Supersedeas Bond
-
CERTIORARI
o
Interlocutory,
without
prejudice to the outcome of
appeal
134
1. Injunction
2. Receivership
S6 N/A to:
3. Accounting
4. Support
and
land
Revival of judgment
S6
Independent action
Assumes there is no
execution
within
first 5 years
Party who files the
action
is
the
judgment
creditor
himself,
or
his
assignee,
or
his
successor
in
intereest
Filed due to lapse of
5 year period
Revival of judgment
S34
Carried out through
filing of a motion in
court
Assumes
that
judgment
is
executed within first
5 years
Party who files such
motion is not the
original
judgment
creditor but he is
the highest bidder in
the public auction
Filed
because
movant is deprived
of
property
purchased
Levy
-
Garnishment
-
Attachment
Refers to corporate
property
in
possession
of
judgment debtor
Garnishment
Refers to money,
stocks, credits, other
incorporeal property
which
belong
to
judgment debtor but
is in the possession
or under control of a
third person
135
or
restitution
of
4. Removal of improvements
property subject of execution
real
on
11. Monies,
benefits,
privileges,
annuities accruing or in any manner
growing out of any life insurance
136
Ordinary sale on
execution
Need
not
be
confirmed by court
Right of redemption
exists
Terceria
-
Title
is
acquired
after expiration of
redemption period
when final deed of
conveyance
is
executed
Sale in judicial
foreclosure of
mortgage
Must be confirmed
by court in order to
divest rights in the
property
of
the
parties and to vest
the rights in the
purchaser
No
right
of
redemption except
when mortgagee is
a bank or a banking
institution
Title
is
acquired
upon
confirmation
and registration of
the foreclosure sale
137
2. Cannot be ejected
138
subject
matter,
causes of action
First
judgment
constitutes absolute
bar to all matters
directly
adjudged
and
those
that
might have been
adjudged
Has the effect of
preclusion of claims
Res judicata
-
Conclusiveness of judgment
-
Conclusiveness of judgment
-
Bar by former
judgment
Identity of parties,
Conclusiveness of
judgment
Identity of parties
Provided that
jurisdiction
the
tribunal
has
139
may
be
1. Want of jurisdiction
2. Want of notice
3. Collusion
4. Fraud
140
141