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that the accused will be acquitted of the crime but he can be held civilly liabl
e because the quantum of evidence
used, in so far as the civil aspect, is not proof beyond reasonable doubt but on
ly preponderance of evidence.
But just like in criminal procedure, we always start with the topic
on jurisdiction of courts. With respect to
jurisdiction over civil actions, we have several laws governing jurisdiction of
courts in civil cases. Primarily, we
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have the Constitution. And then we have the Judiciary Act of 1948 that is R.A. 2
96. And then we have this B.P.
129 the Judiciary Reorganization Act and its amendments. And then we
have the law creating the family
court I think it was in 1997. And then the law creating the Sandig
anbayan. Because we have so many
substantive laws governing jurisdiction of courts X X X identified the general l
aw on jurisdiction in this country.
The general law on jurisdiction in our country is B.P. 129. All other laws are s
pecial laws governing jurisdiction.
So that if you find the conflict between B.P. 129 and the special l
aw on jurisdiction, we just apply the rule on
statutory construction: the special law prevails over the general law. A good ex
ample is the provision in B.P. 129
on the jurisdiction of a regional trial court. X X X In testing the jurisdiction
of a regional trial court, B.P. 129 says
that a Regional Trial Court exercises exclusive original jurisdiction over the e
numeration of cases, one of which
is cases which were cognizable by the then Juvenile and Domestic Rela
tions Court. So we have all these in the
Juvenile and Domestic Relations Court and then B.P. 129 provided that,
thereafter, the jurisdiction of the
Juvenile and Domestic Relations Court shall be exercised by the Regional Trial C
ourt in the concept of exclusive
original jurisdiction. But X X X in the Family Court law, which is a special law
, it is provided that a Family Court
has exclusive original jurisdiction over cases involving marriage, adopt
ion, guardianship of minors, X X X
criminal cases and civil cases that involve a minor. There is then a
conflict now between B.P. 129 and the law
creating the Family Court. But since the law creating the Family Court is a spec
ial law, its provisions will prevail
over that of B.P. 129. That is why these civil cases in adoption they are no long
er cognizable by the Regional
Trial Court. They are cognizable by the Family Court.
We also meet in our classroom discussion the legal maxim that jurisdi
ction is a matter of substantive law. But
that is not necessarily true. What is governed by substantive law, in
so far as jurisdiction is concerned, is
jurisdiction over the subject matter and over the nature of the case.
This is the aspect of jurisdiction that is
governed by B.P. 129 and the other substantive laws on jurisdiction. There are o
Judiciary Act is concerned, are provisions of the Judiciary Act of 1948 which ar
e inconsistent with B.P. 129. So do
not be of the impression that we no longer have the Judiciary Act o
f 1948. We still enforce and recognize the
Judiciary Act of 1948. The best argument to support this statement is found in S
ec. 9 of B.P. 129. If you read Sec.
9, thats the section providing for the jurisdiction of the Court of A
ppeals. In Sec. 9 of B.P. 129, there is an
enumeration of cases that are allocated to the Court of Appeals exerc
ising original jurisdiction and exclusive
appellate jurisdiction. It is in that last part of Sec. 9. That part
which talks about appellate jurisdiction of the
Court of Appeals. We notice a clause in Sec. 9 saying that the Cour
t of Appeals exercises appellate jurisdiction
over cases decided by the Regional Trial Court or quasi-judicial bodie
s in said laws that are assigned to the
Supreme Court under the provisions of the Judiciary Act of 1948. Thats the best p
roof that the Judiciary Act of
1948 is still in force. It is expressly recognized as existing up to the present
by the provisions of B.P. 129.
When it comes to the jurisdiction of the Supreme Court under the Con
stitution as stated, the Constitution
provides for a limited number of cases over which the Supreme Court can exercise
original jurisdiction and over
limited number of cases over which the Supreme Court can exercise app
ellate jurisdiction. And as we said
earlier, these are not exclusive. The exercise of original jurisdiction
is not exclusive. The exercise of appellate
jurisdiction by the Supreme Court as provided by the Constitution is
likewise not exclusive. Why do we say
this? We have to read the provisions of the Constitution together with the provi
sions of B.P. 129 in allocation of
jurisdiction with the other courts. The cases that are assigned to the Supreme C
ourt in the exercise of its original
jurisdiction involve cases involving ambassadors, ministers and consuls. And the
n theres also the vesting upon
the Supreme Court of original jurisdiction over cases involving petitions for ce
rtiorari, petition for mandamus X
X X. If we read the provisions of the Constitution together with B.P. 129, we wi
ll find out that the same authority
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is given by B.P. 129 to other courts like the Court of Appeals. Again, in Sec. 9
, B.P. 129 provides that the Court of
Appeals also exercises original jurisdiction over petitions for certiora
ri, prohibition, and mandamus, quo
warranto, or habeas corpus. And then under the Chapter on the jurisdiction of th
e Regional Trial Court , B.P. 129
also vests upon the Regional Trial Court a similar authority. The Reg
ional Trial Court shall exercise original
jurisdiction over petitions for certiorari, prohibition, and mandamus, a
nd quo warranto. So if we take the
Constitution together with B.P. 129, there are, in effect, 3 courts i
30 of Rule 132 in Ev
of judicial record, th
compare that to Rule
absence of jurisdiction o
limited period of time. And after the expiration of that period, abso
lute jursidiction over the case will now be
assumed by the appellate court.
In Primary jurisdiction, this involves quasi judicail bodies, what happens in Pr
imary Jurisdiction is that congress
enacts a law which vests jurisdiction under the quasi judicial body t
o try and decided cases which are
cognizable by regular courts under the provisions of BP 129. The reason why cong
ress usually enacts these laws
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is that congress feels that the quasi judicial body is better equippe
d in order to decide disputes between the
litigants. A good example of a Primary Jurisdiction conferred by subst
antive law is the jurisdiction given to a
quasi judicial body called HLURB, this board is given original jurisdi
ction, in some cases exclusive original
jurisdiction, to adjudicate cases of disputes between a subdivision buy
er and a subdivision developer, so if a
subdivision buyer feels aggrieved for the non-performance by the develo
per of his commitments under the
contract, the buyer should not file the complaint with a regular cour
t although under BP 129 the regular court
may have jurisdiction, usually for breach of contract the remedies given in the
CC would Specific Performance,
Recission of Contract or damages for both cases or damages alone. In
this rule on Primary Jurisdction, these
actions will not be assumed by the regular court although BP129 gives
the regular court such authority
particularly the Regional Trial Court. The jurisdiction is given by su
bstantive law to the quasi judicial body
HLURB because the HU
presumably
is better equipped to adjudicate c
ontests between the subdivion buyer
and developer so that there is a breach by the subdivision developer of his comm
itments to the buyer, what the
buyer will do is to file a complaint with the HLURB.
There is one case however decided by the SC, where the subdivision d
eveloper filed a compalint for ejectment
against a subdivision buyer because it was the buyer who allegedly vi
olated the terms of the contract and the
developer wanted to recover possession of the property purchased by th
e buyer. The subdivision buyer
challenged the authority of HLURB to entertain a complaint for ejectme
nt which under BP 129 is exclusively
cognizable by an inferior court. The SC said the primary jurisdiction
of the HLURB does not extend to
complaints for ejectment filed by one party against the other. So tha
t in the case of primary jurisdiction vested
by substantive law to quasi-judicail bodies, the authority of the quas
i-judicial body is interpreted strictly.
Ejectment could really be a dispute between a subdivision buyer and developer bu
t then when the purpose is to
recover physical possession of the property or even in accion publiciana, the co
will just try these two misjoined causes. Under the rules, can the co
urt muto proprio apply the rule on
misjoinder of causes by ordering the severance of one of the cases that is misjo
inded? The answer is yes. Under
the Rules, we do not really need a motion coming from the defendant.
On its own, if the court finds out that
there is a misjoinder, the court is given the prerogative motu proprio to order
the severance of cases. This is for
the benefit of the court because of if the court will wait for the
move from the defendant to raise misjoinder of
causes, the court will find itself confused with the procedure that will follow.
Because partition has a procedure
different from ordinary civil actions. In fact, partition under our rules now is
a multi-staged proceeding. Thats
why it is a special civil action while recission is an ordinary civil action. It
is not divided into several stages like a
complaint for partition. But since nobody raised the issue of misjoinder and the
court did not realize that there
was misjoinder of causes, the court just went on to try these two cases until a
decision was finally issued by the
court. When the matter appealed to the SC, the SC said that there was nothing ir
regular with the performance of
the court even if the causes of action are misjoined. But the issue is not raise
d before the trial court, and the trial
court goes again with the trial of these misjoined causes of action.
The decision of the court will still be valid.
The only qualification given by the SC is that this misjoined causes should be w
ithin the jurisdiciton of the trial
court under BP 129. In other words, this rule of joinder of causes could be a gr
ound for severance of one of the
causes but if it is not raised timely and the trial court eventually decides the
case, the decision of the trial court is
binding. Its perfectly in order as long as the trial court has jurisdiction over
the misjoined causes. Does the RTC
have jurisdiction over the complaint of partition? Does the RTC have
jurisdiction over recission of donation?
Recission is incapable of pecuniary estimation. So even if there are
misjoined causes in one complaint, but this
misjoinder is not raised before the trial court, the parties are deemed to have
waived this misjoinder of causes of
action. The judgment rendered by the court is valid and it can be executed if it
is duly entered. If the court does
not motu proprio order the severance of cases, we cannot blame the court for it.
It is the bargain of the defendant
to raise this as an issue before the trial court. So again, this is the attitude
of the SC when it comes to misjoinder
of causes of action. As long as the misjoined causes fall within the jurisdictio
n of the trial court, there is nothing
wrong if the trial court will eventually decide the case although there is misjo
inder of causes of action.
Can the complaint be filed where these two causes of action are se
t-up? First, it is a petition for certiorari
and then as a second cause there is a petition for habeas corpus. If you read li
terally section 5 that is not allowed.
But the SC allowed. A petition for certiorari which is a special civil action co
uld be filed together with a petition
for habeas corpus which not a special civil but it is in fact a sp
ecial proceeding and therefore the procedure
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there is a rule against misjoinder of causes and misjoinder occurs when the two
causes joined violate some of the
limitations contained in Sec. 5, like rule on joinder of parties, rul
e which prohibits joinder of causes which are
governed by different rules, such as when a special civil action is
joined together with an ordinary civil action
although both would be cognizable by the same court, the joinder is
prohibited but as to the mentioned
yesterday, the latest decision of the court is to the effect that even if the ca
uses are misjoined, if that issue is not
raised on appeal before the Supreme Court or Court of Appeals, these courts will
just ignore the violation on the
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rule on joinder of causes of action. The judgment rendered by the court cannot b
e challenged provided that the
court has jurisdiction over the two or more causes that have been joined.
The first limitation to joinder of causes is the rule on joinder of parties. And
the rule on joinder of parties which
serves as a limitation to joinder of causes is the rule in Sec. 6
of Rule 3 that is permissive joinder of parties. In
permissive joinder of parties, it envisions a situation where there ar
e two or more plaintiffs, or two or more
defendants or both, and the right to relief arises from the same transaction or
a series of transactions and there is
a common question of law or fact in so far as the defendants and the plaintiffs
are concerned. Usually, joinder of
permissive joinder of parties, issues when there are at least two causes of acti
on, pertaining to the two plaintiffs
or against the two defendants as the case may be. A good example is
illustrated by case decided by the court
about 10 years ago. The owner of a tract of land discovered one mor
ning that his property has been occupied
forcibly or through intimidation or any other means and that they retained physi
cal possession of this property
about 10 or 11 informal settlers or squatters constructed their houses on that p
roperty. The owner of the land of
course wanted to recover physical possession of the property. The proc
edural problem that they face was this.
Can he file, should he file 11 complaints of forcible entry against each one of
the informal settlers or squatters or
can he file just one complaint against eleven defendants, eleven informal settle
rs, but in that complaint, he will
allege eleven causes of action. Each one cause of action against each one of the
informal settlers. The SC said the
owner of the land has the option of choosing any one of these remed
ies. The owner of the land can file eleven
complaints for forcible entry but each complaint must implead only one informal
settler. He can also file just one
complaint against eleven squatters but in that complaint, she should a
llege eleven causes of action. The last
recourse will involve joinder of parties. There is just one complaint,
against eleven squatters but in effect, in
filing effectively, he can be filing eleven separate complaints, but t
ground that is failure to state a cause of action, there are conflicting decisio
ns of the SC when the SC resolved the
question of whether or not failure to implead an indispensable party is a good g
round for dismissal. Remember
that the ground used by defendant is not failure to implead an indispensable par
ty but the ground for dismissal
is failure to state a cause of action. One set of decisions of the
SC said that if an indispensable party is not
impleaded and there is a motion to dismiss founded on failure to sta
te a cause of action, the case would be
dismissed on that ground. Because there is really failure on the part of the pla
intiff to state a cause of action if an
indispensable party-defendant is not impleaded. In the definition of a cause of
action, the law says that a cause
of action exists when there is a violation of the right by another party. In oth
er words, a cause of action envisions
the existence of a right and a violation of that right. If there is a wrong doer
who has violated the right of a party,
that wrongdoer should be impleaded as a party defendant. The reason given by the
se one set of decisions of the
SC in affirming the dismissal of a complaint where an indispensable party defend
ant has not been impleaded is
that the proceedings taken by the court are void. With respect to the parties wh
o are present in the case and with
respect to other parties who could have been parties to the cause. The judgment
is null and void. And therefore
the court said if we dont dismiss the case, we allow the court to continue trying
the case and we allow the court
to eventually decide the case. The court will just be spending useles
s his time, because the judgment to be
rendered by the court, in a way cannot be enforced; it will never b
ecome final and executory. That was the
justification given by the court in this set of decisions which allowed the dism
issal of a complaint for failure to
state a cause of action. Failure to state a cause of action because an indispens
able party-defendant has not been
impleaded. The other set, the second set of decisions of the SC is
to the effect that if an indispensable partydefendant has not been impleaded, and there is a motion to dismiss filed by the
present defendant on the same
ground failure to state a cause of action, the court should not dism
iss the case. The reason given by the SC is
Section 11. Misjoinder or nonjoinder of a party is not a ground for dismissal. T
he court said: if an indispensable
is not impleaded, and a motion to dismiss is filed by the defendant,
what the court should do is to order the
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amendment of the complaint. Is it proper for a court to order the amendment of a
complaint if the motion before
the court is a motion to dismiss? Should not the court either grant
or deny the motion to dismiss? If you read
Rule 16, on the alternatives, the options given by Rule 16 to a cou
rt which is going to rule on a motion to
dismiss, Rule 16 really says that a trial court has three options. The first is
to deny the motion, the second is to
grant the motion and the third is to order an amendment to the plea
ding. So this decision of the SC is also
founded on an express provision of Rule 16. A trial court really can refuse to g
rant a motion to dismiss by using
the third option that is order an amendment of the pleading. In fact as of now,
there are four alternatives given
to a trial court in resolving a motion to dismiss. The first three:
grant the motion, deny the motion or order an
amendment to the pleading and the fourth alternative introduced by a
circular is that for the court to refer the
matter to arbitration or a prior barangay conciliation. There are now four optio
ns given to a trial court. But we
are interested in the third option given in Rule 16. And the Supreme Court said
if a person is an indispensable
party to the case and he is not impleaded as a defendant, the person who has bee
n sued in that case can move
for a motion to dismiss but the court will not grant the motion, th
e court will instead order the amendment of
that complaint. So the motion to dismiss will not be granted instead, the court
will tell the plaintiff: you amend
your complaint by impleading the indispensable party. If the plaintiff receives
an order from the court, directing
him to amend his complaint by impleading an indispensable party, the plaintiff a
lso has a choice. He can ignore
the order of the court or he can comply with the order of the court. If the plai
ntiff complies with the order of the
court and the plaintiff amends his complaint, and impleads the indispensable par
ty, then the defect in that case
is solved. There is no more procedural defect because an indispensable
party has been impleaded. But if the
plaintiff disobeys the order of the court, directing him to implead a
n indispensable party, can the court do
something about the disobedience of the plaintiff? This other set of decisions s
aid, the court can now order the
dismissal of the case but the dismissal of the case will not be founded on Rule
16 but it will be a dismissal found
on Rule 17. Rule 17 is also about dismissal of actions. And the cou
rt said if the dismissal of the action is
thereafter ordered by a court by reason of the disobedience by the p
laintiff of a lawful order of the court, that
dismissal under rule 17 is a dismissal with prejudice. In other words
, that will be an adjudication upon the
merits. If that order of dismissal is finally entered, then there will be res ju
dicata and the plaintiff will be barred
from further pursuing his claim in another complaint.
This issue as we said is a subject of conflicting decisions of the
court and if by chance, this is asked in your
examinations, I would suggest that you adapt the second set, that is
if an indispensable party has not been
impleaded and there is a motion to dismiss the court should not orde
r a dismissal of a case. The court should
order the amendment of that complaint. If the amendment is not compli
ed with, the court can now order the
dismissal of the case not by reason of a motion to dismiss under Rule 16 but by
reason of Rule 17, dismissal of
the action by reason of failure to obey a lawful order of the court. Is there a
difference between a dismissal under
Rule 16 on that ground failure to state a cause of action and a dismissal under
subject matter of the action. The subject matter of the action for the purpose o
f satisfying that phrase complete
determination of the subject matter therein is the recovery of 1M peso
s. Thats why d2 becomes only a
necessary party. But the rules do not compel the creditor to implead d2. Since d
2 is only a necessary party, even
if you dont implead him, the case can prosper, the court can try the
case, but the decision of the court will be
limited to the awarding to the creditor 500K pesos. What is the duty of the cred
itor or the plaintiff if he has not
impleaded a necessary party? The duty of the plaintiff is only to te
ll the court that he has left out in his
complaint a necessary party. That is enough. So he may not be compel
led. He is not compelled by the rules to
implead a necessary party. All that he needs to do is to file a co
mplaint against an indispensable party and in
that complaint, he will tell the court, I have not impleaded a neces
sary party. And it is up to the court now to
determine whether or not it is essential for the court to order that
d2 must be impleaded to this action. If the
court does not issue an order requiring the plaintiff-creditor to impl
ead d2, there is no need for the plaintiff to
amend his complaint. But if the court orders the plaintiff creditor to
amend his complaint by including by
impleading d2, the plaintiff again will have two options either to fi
le in court or not to file in the court. If the
plaintiff follows eventually the order of the court, then we will hav
e a situation where the complaint will be
amended, the necessary party will be impleaded as defendant but the c
omplaint will now be for the recovery
not only for 500k but for the recovery of 1M pesos. If on the other hand, the pl
aintiff-creditor ignores the order of
the court, can the court now make use of Rule 17? Can the court also order the d
ismissal of the complaint under
Rule 17 because of the refusal of the plaintiff to obey a lawful order of the co
urt? We dont apply Rule 17 in this
situation. We dont apply Rule 17 because Rule 3 itself already provides for a san
ction if the plaintiff refuses to
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obey an order of the court directing him to implead a necessary party. The sanct
ion given in rule 3 is simply that
the plaintiff is deemed to have waived his right to recover from the necessary p
arty. That is expressly mentioned
in rule 3 concerning impleading a necessary party. So you will also
note that there is a difference between the
effect of disobedience by a plaintiff to an order of a court to imp
lead an indispensable party compared to the
disobedience by the plaintiff to an order by the court to implead a necessary pa
rty. If the plaintiff refuses to heed
an order of the court to implead an indispensable party, the complaint could be
dismissed under rule 17 and the
dismissal general is a dismissal with prejudice. If the plaintiff ignores an ord
er of a court to implead a necessary
party, the court cannot order the dismissal of the complaint under ru
le 17. What the court will apply is the
sanction given in rule 3,that is failure to implead a necessary party if directe
d by a court. The case will continue,
the case will not be dismissed, but in so far as the necessary party is concerne
d, the right of the creditor against
him is deemed waived. But if you look further into the consequence of that sanct
ion given in rule 3, if later on
the plaintiff creditor decides to file a complaint against d2, that complaint wi
ll no longer prosper. Why? Because
the d2 can now make use of rule 16, file a motion to dismiss on the ground that
the claim has been paid, waived,
abandoned or otherwise extinguished. So at the end, the effect could
be the same. Whether a party not
impleaded is indispensable or necessary. But the ground for the dismis
sal will be different. In the case of an
indispensable party, the ground for dismissal is rule 1 sec. 3, failure to obey
a lawful order of a court. In the case
of a necessary party, the complaint again will also be dismissed unde
r rule 16, that is the claim has been paid,
waived, abandoned, or otherwise extinguished. There are other sections
in rule 3 which could give rise to an
occasion where we have to determine whether a party is indispensable or a necess
ary party or whether he is a
real party at all to the existing case. And we are referring to the rule on assi
gnment or transfer of interest during
the litigation. I think that is the last section in rule 3, that transfer of int
erest pendente lite and transfer of interest
before the complaint is filed.
We are going to make use of the same example: there is a creditor who has lent o
ut 1M pesos to the debtor. This
time, we will only have 1 debtor. The debtor defaults in the payment
of the obligation. But before the creditor
files a complaint against him, the creditor feels that he needs money right away
. So he decides to sell his claim to
assign his credit to an assignee. Can the creditor do that. Of cours
e the answer is yes. That is covered by
procedural law. That is covered by the civil code. That is simply assignment of
right. So if the creditor who has a
claim for 1M, decides to assign his credit before a case is filed,
he can assign this credit to any person who is
willing to assume the risk of indebtedness. That is what we call in
civil law assignment of credit. There is an
assignor, there is an assignee. Usually in assignment of credit, the assignee pa
ys or buys the credit for an amount
which is much less than the credit. So if the credit assigned is 1M
and it is assigned, it is very likely that the
money to be paid by the assignee for the 1M credit will only be 700K pesos. So i
t is a claim to recover 1M pesos.
It is sold to the assignee for only 700K pesos. So in dealing up a claim of 1M p
esos, the creditor will receive only
700K pesos. But the indebtedness is already in default. Can the assig
nor, the original creditor file a complaint
against the debtor for the recovery of 1M pesos? Of course not.
Be
cause he is no longer the creditor. He has
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court are void. So it is now the duty of the court to order substi
tution of parties. That is if the dismissal of
plaintiff if the death of the plaintiff or the defendant does not result to the
dismissal of the case. There are certain
instances where the death of a plaintiff of defendant will automatical
ly lead to the dismissal of the case. For
instance, in marriage related case, legal separation, annulment of marr
iage, an action to declare the marriage
void, if either the husband or the wife who are the contestants dies during the
pendency of the case, the case will
be automatically dismissed. That is also provided in the family code as well as
in the circular of the SC on family
related cases. But according to the circular on marriage related cases
, if the death of the husband or the wife
takes place after the judgment has been entered, the death of the hu
sband or the wife will not affect the
judgment. So it is the death of the husband or the wife in marriage related case
s which will lead to the dismissal
of the case if the death takes place before entry of the judgment rendered by th
e court. So the focal point will be
the entry of judgment in marriage related cases. In cases where the
death of the plaintiff or the defendant will
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not lead to the dismissal of the case, the trial court will have to
follow the procedure for substitution of the
parties. Note that its either the plaintiff or the defendant who will
die during the pendency of the case that
where we follow this procedural substitution of parties. If it is the
plaintiff who dies and we assume that the
lawyer for the plaintiff has duly informed the court about the death of his clie
nt, the court will now require the
lawyer to submit to him a list of heirs of the plaintiff. And it is up to the co
urt now to issue an order directing
these heirs of the plaintiff to appear before the court to act as s
ubstitute plaintiff. If the heirs refuse to act as
substitute plaintiff, can the court compel the heirs or anyone of them to act as
substitute plaintiff? The answer is
NO. The court has no authority to compel an heir of a deceased litigant to act a
s a substitute party in the case. If
the heirs refuse to act as substitute parties, then the court will have to go to
the next step given in rule 3. That is
to require the other party, the defendant in the case to seek the appointment of
an administrator or executor of
the estate. In the appointment of an executor or administrator of est
ate of course can only be done in a
settlement court. We assume that in directing the defendant to seek t
he appointment of an executor or
administrator of the deceased plaintiff, the defendant will be filing a petition
for probate of a will or intestacy as
the case may be. Because it is only in this proceeding where a court can appoint
an administrator or executor of
the estate. Remember that in a settlement proceeding, the competent co
urt could be an inferior court, it could
classification, a mixed
action. The action is both real and personal. What will be the venue of the acti
on in the absence of stipulation?
The venue will follow the rule on real actions. So the feature of a
n action as a real action will prevail over its
feature as a personal action in so far as the matter concerning this
is concerned. Supposing the action is in
personam or the action is in rem, or quasi in rem, do we have a rule on venue un
der rule 4 if the action is in rem
or quasi in rem or in personam? Well if you read rule 4, the only classification
s that are relevant or material to
venue is the classification of real and personal. So that if the action is in re
m or in personam or quasi in rem, how
do we determine the venue of the action in the absence of stipulatio
n? Thats not a problem. If the action is in
rem or quasi in rem or in personam, all you have to do is to further analyze whe
ther that in rem or quasi in rem
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or in personam action is real or personal. If an action is classifie
d into in rem, quasi in rem or in personam, it
does not mean to say that that classification of in rem or in perso
nam or quasi in rem prohibits further
classification of the same action into real or personal action. So we can have a
n in rem action that is a real action
at the same time; we can have an in personam action that is a real action at the
same time. But for purposes of
venue, we simply follow its classification as a real action. In the same way tha
t an action in personam could also
be real or personal. If the action in personam is a real action, th
en we follow its feature as a real action for
purposes of venue. For instance, action reinvindicatoria, that is, to recover ti
tle to or ownership or possession of
a piece of land is of course a real action. The venue therefore is the place the
property or any portion thereof is
situated. But if the classification to action reinvindicatoria right aw
ay is in personam, you have to further
determine if that in personam actin is either real or personal for purposes of v
enue. Action reinvindicatoria is a
real action and at the same time in personam action. It is not corr
ect to say that simply because title to or
possession of property is involved, that the action is a real action and at the
same time it is an action in rem. A
real action could be in personam. We said that action reinvindicatoria
, action publiciana, they are real actions
but they are also in personam at the same time. A good example of
an in rem action which is personal will be
settlement of an estate of a deceased person when the only properties of the est
ate are personal properties. There
are no real rights; there are no real properties in the estate. That is in rem b
ecause a settlement proceeding is an
in rem action but at the same time is only a personal action. You have to be rem
inded always of the decision of
the SC in that old case of Sweetlands (?). Although parties are generally given
of compromise agreement.
(Miguel v Montanez), it gives a manner in which execution may be done. Under LGC
and Implementing Rules,
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it is specified that a barangay court can enforce the compromise agre
ement that becomes final and executory
through levy of personal properties and sell them in public auction.
In the case, the claim of the creditor is for
example 500,000 and the creditor and debtor reside in same city or m
unicipalities. There Is a compromise
agreement submitted. And the claim of 500,00 was reduced to 200,000.
substantially and the creditor admitted
that the claim may be paid in installments. The debtor did not compl
y but the creditor did not repudiate the
agreement. So, what the creditor did is not to ask for execution by
barangay court but filed a complaint for
recovery of the original amount. The trial court said that the only
recourse is to enforce the compromise
agreement and cannot file an action for recovery. The Supreme Court s
aid that when compromise agreement
becomes final and executory and the debtor fails to comply with the terms of the
agreement, the Court said that
such failure is a repudiation of the agreement. The SC cited Article 2041 of t
he Civil Code and in this article, it
is provided that when a party to compromise agreement does not comply with his o
bligation, the agreement is
deemed rescinded. It is rescission by operation of law. Thus the cred
itor is entitled to recover the claim before
the courts of justice.
As long as the terms are complied with, there is no problem. But if
the terms are not followed, the failure of
debtor to follow means repudiation and automatic rescission of the compromise ag
reement.
In our study of rescission, there must always be a complaint filed.
But in the article cited by SC, there is
rescission by operation of law and thus judicial decision is not nece
ssary. The creditor then will be reverted to
his original position insofar as the original amount is concerned even if he agr
eed to the reduction of the amount
of credit in the compromise agreement. The repudiation then may be ma
nifested by mere refusal or failure to
comply with the terms of the agreement. Im not sure if this decision
is applicable to compromise agreements
submitted before regular courts of justice. In regular courts if the
parties submitted a compromise agreement,
such agreement becomes the basis of the judgement of the court
(jud
gement on compromise) and it is
immediately executory. If the parties violate the terms of the agreement, the re
medy is to move for execution. In
this case when the parties submitted the compromise agreement before the court,
that becomes the law between
the parties and it cannot be set aside becased on failure to comply with his obl
igations.
SUMMARY PROCEDURE
Summary Procedure refers to Summary Procedure followed by inferior co
urts in Unlawful Detainer,
Forcible Entry and claims for money not exceeding 200,000.
Small Claims involve claims for money that do not go beyond 100,000.
There are also cases that follow Summary Procedure even though cognizable by R
TC. And these cases are
those that are mentioned in the Family Code.
The only pleadings allowed in Summary Procedure are complaint, answer
, compulsory counterclaim and
crossclaim. So permissive counterclaim is not allowed. A defendant that
has permissive counterclaim must file
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his own complaint for the enforcement of his claim. There are also motions which
are prohibited like Motion to
Dismiss under Rule 16 unless the ground is absence of jurisdiction ov
er subject matter or absence of prior
barangay conciliation. Since the motion to dismiss is prohibited, does
it mean to say that the case may not be
dismissed on any of the grounds mentioned in Rule 16? That is not so. What is pr
ohibited is a Motion to Dismiss
filed by a defendant, but Summary Procedure allows dismissal based on
Rule 16 as long as the order of
dismissal comes from court itself, without motion filed by defendant.
The court is given authority to dismiss
without correlative motion filed by the defendant by examining contents of the c
omplaint. If the court finds that
a ground under Rule 16 is present, it may dismiss the case on its own. Thus Rule
16 is still applicable but it is the
court that must order dismissal of the case.
Ordinarily, a court in which a complaint is filed cannot simply dismiss the co
mplaint without a motion filed
by the defendant, even if the court thinks that there is a ground for dismissal
except the non-waivable defenses.
The defendant is allowed to file responsive pleading. And the period
to answer is non extendible.
Supposing the defendant ignores the period, and files a motion for extension of
5 days. The court will consider
the motion as not having been filed and the defendant cannot expect
the court to issue an order denying the
motion for extension because that is a prohibited pleading. If there is such a m
otion filed and the defendant does
not file an answer within the non extendible period of 10 days, the
plaintiff may ask the court to render
judgement based on the complaint and the evidence attached in the complaint. So
it is a very risky move to file a
motion that is prohibited since it will not be acted upon. The court has the dis
cretion not to act on it.
If the defendant is prohibited from filing motion to dismiss except
on grounds mentioned earlier, and the
defendant after evaluating the complaint is convinced that the case should be di
court Note that Rule 6 does not prohibit the plaintiff or defendant from allegin
g evidentiary facts.
Ultimate facts are facts which constitute cause of action. An allegati
on that plaintiff has a right. An
allegation that the right is violated by defendant. An allegation that there is
compliance of conditions precedent.
For instance, an allegation that plaintiff has undergone prior barangay concilia
tion is an ultimate fact if the case
is governed by prior barangay conciliation.
Insofar as the answer is concerned, it is a pleading that responds t
o a complaint. The answer must
contain a negative defense, affirmative defense of both. The problems
that usually arise in an answer is with
respect to a negative defense. A negative defense is an important par
t of pleading, and when we talk about
negative defense, it involves specific denial. The standard to be foll
owed in ascertaining whether denial is a
specific denial or not a specific denial is found in sec 10 of Rule 8.
There are three modes by which specific denial may be had. The first
mode is the denial of allegations
with accompanying grounds relied upon to support his denial. Second is part deni
al and part admission. Third
is just a statement that he has no knowledge concerning truth of all
egations in the complaint. If you analyze
Rule 8 on specific denial, the law does not require the defendant to file an ord
er of reference. It is a choice on the
part of the defendant as to what mode he opts to choose. So that theoretically,
the defendant may make use of
the third mode right away. Theoretically, the defendant may file answe
r that he has no knowledge and
information of the truth of allegations in paragraph 1, 2, 3 etc, I specifically
deny paragraphs 1, 2, 3 etc. But the
SC discourages the defendant in using the third mode since it imposes
some sanctions if defendant insists in
using third mode as the only mode in his answer. If you note the allegations in
paragraph 1, it usually contains
the legal capacity of plaintiff and defendant. If defendant make use of the thir
d mode, it is unreasonable that he
alleges that he does not know his citizenship, etc. there are certain
allegations in complaint that is known by
defendant like his name and residence. If he denies it, he must make use of othe
r modes of denial. To avoid the
possibility that defendant may abuse the use of third mode, the SC says that if
the defendant says that he has no
knowledge as to certain allegations in the complaint and therefore specifically
denies them, the defendant has to
explain why he has no knowledge with respect to such allegations. If he fails to
do so, it will not be considered
as specific denial. It will be considered as general denial. And if it is a gene
ral denial, it will be treated as judicial
admission as to the truth of the allegations contained in the complaint. The eff
ect of judicial admission is that it
is considered as conclusive. It cannot be rebutted. If there is judic
ial admission, there is no hope to rebut the
same. The court then may immediately enter judgement on the pleadings upon motio
n of the plaintiff.
Another form of specific denial frowned upon by jurisprudence is this
kind: I specifically deny
paragraph 1 of the complaint because I have no business with plaintiff. I deny s
pecifically paragraph 2 because
there is no contact between plaintiff and defendant that is not specific denial. T
hat is general denial and thus
considered as general denial.
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A negative pregnant is a denial in form since it uses the words specific denial
but when you look at the
denial, there is no ground to support the denial. That is in violation of the fi
rst mode. Thus it may be treated as
judicial admission. If defendant files an answer with a general denial
, and he uses the words I specifically
deny but he does not inform the court of the grounds relied upon to support his d
enial. It is a specific denial in
form and insofar as the court is concerned that is a general denial. Does the de
fendant have any remedy at all to
convert the general denial into a specific denial? Yes. It is provide
d in Rule 10. If the pleader feels that he
commits an error, he may amend the pleading as a matter of right before a respon
sive pleading is filed.
In some special proceedings we dont apply this rule on specific denial
since we allow general denial
like in Habeas Corpus. But the Circular on Amparo, Habeas Data expres
sly prohibits general denial. It must
always be specific denial. A counterclaim is a pleading filed by defendant aga
inst the plaintiff. There are two
kinds: permissive and compulsory. The Rules made a distinction between
a compulsory counterclaim filed
before RTC and that filed before an inferior court. The requisites ar
e the same. But we are concerned with the
other qualification. A counterclaim may be a compulsory counterclaim if
filed with RTC but not a compulsory
counterclaim anymore if filed with inferior courts simply because there
is an amount alleged in that
counterclaim. The usual example of compulsory counterclaim usually alleged in th
e answer is that the filing of
the complaint is unjust and without basis and therefore the defendant has been c
ompelled to avail the services
of a lawyer and forced to pay attorneys fees and because of the unju
st filing of the complaint, he suffered
damages in the amount of example, 200,000. If that is the tenor of
a compulsory counterclaim filed by the
defendant in RTC, it is still treated as compulsory counterclaim by RTC even if
the amount is only 200,000 which
is below the jurisdictional amount. If there is a complaint for the recovery of
1 Million and the defendant alleges
compulsory counterclaim where the amount is 200,000,
that will still
be entertained by RTC. We cannot
challenge the jurisdiction of RTC simply because the amount is below 400,000. Bu
t if the complaint is filed before
an inferior court and the amount sought is only 300,000 but the defe
ndant sets up what he calls a compulsory
counterclaim in the amount of 600,000. Under the Rules, that counterclaim, alth
ough it arises or connected with
the subject of the complaint, is treated as permissive counterclaim. T
see to it that that specific denial is under oath. If there is only specific den
ial without having been verified that is
not enough. There is genuineness and due execution of the it will be deemed adm
itted. We will take note of the
exceptions given in the rules with respect to the nonapplicability of
this principle on judicial admission on
genuineness and due execution if there is no specific denial under oath, if the
actionable document is contained
in the answer. There are two exceptions in the rule. First, when the adverse par
ty is not a party to that particular
document or even if he is party to that document, an order for an inspection of
the original issued bythe court is
not obeyed by the defendant. In these two instances, we dont apply th
e rule on judicial admission of
genuineness and due execution of the actionable document contained in
the answer. The rule requiring the
mode by which an actionable document must be alleged in apleading eit
her to a complaint or an answer is
described by the supreme court as ??
. meaning that is mandatory.
If the pleader does not follow any of the
modes in the rules for pleading an actionable document. The sc said the plaintif
f will not be allowed to present
proof of his cause of action. if it is the defendant who fails to do so, He will
not be allowed to present proof of his
defense. So the attachment of the actionable document or copying the
contents of that act doc in the pleading
itself is amust. It will adversely affect the pleader if he does not follow eit
her the modes of pleading an act doc.
Now we go to the third part of the complaint fourth party complaint or fifth par
ty complaint. We follow literally
what the rule say it is third party complaint fourth party complaint
etc. meaning to say there is no end To the
number of complaint that can be impleaded, third party complaint fourth party si
xth party complaint. As long
as the allegations in these complaint has something to do with the c
laim of the plaintiff in the complaint . you
will notice that among all these claim pleadings,
it is only a thi
rd party complaint where their filing requires
prior leave of court. We cannot simply file a third aprty complaint
without leave of court. There is a need for
leave of court. And the 3
rd
party complaint must allege that the 3
rd
party defendant is liable to the 3
rd
party
plaintiff. The 3
rd
party plaintiff is always a defendant. The defendant-3
rd
party pal is entitled to recover from the
3
rd
party defendant by reason of contribution,subrogation or any other relief in re
lation to subject matter of the
claim in the complaint. so the 3
rd
party complaint is always connected with the subject matter of the complaint.
If the complaint,for instance,is for the recovery of an unpaid loan,th
e 3
rd
party complaint cannot pertain to a
recovery of the ownership of a piece of land. If the subject of a3rd party compl
aint should always be related to
the subject matter of that complaint. Why do we need permission from the court b
efore the defendant can file a
3
rd
party complaint? Because the 3
rd
party complaint will forcibly bring into the action a stranger to the case. The
3
rd
party defendant is not at present a litigant to the case. It is a stranger to t
he case. That is why the rules require
that the court should be given discretion whether to allow or not to allow the 3
rd
party complaint because there
may be no need at all in bringing a stranger to the case or even if there be ane
ed the claim against the stranger is
unrelated or unconnected to the subject matter of the complaint. If the court de
nies the motion for the admission
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of the 3
rd
party complaint the remedy of the defendant- 3
rd
party plaintiff is just to file a separate complaint
against the 3
rd
party defendant. It is in a 3
rd
party complaint were we can best illustrate the meaning of ancillary
jurisdiction of trial courts. Let us say the subject of the complaint
is still the recovery of loan, 1m. So the
competent court is the rtc. 1m figure is principal obligation. The de
fendant asks the court permission to file an
answer with a 3
rd
party complaint. In the 3
rd
party complaint, the defendant asserts that a stranger, juan dela
cruz, is bound to pay him in relation to the 1m loan the sum of 2
50T by reason of contribution, indemnity,
subrogation or any other relief. With respect to the complaint, there
is no jurisdictional issue because the
competent court is really the rtc . It is with respect to the 3
rd
party complaint were a jurisdictional issue could be
raised. The 3
rd
the Sc circular says that the complaint and answer must be signed by the client,
by the party himself. if signed
alone by the lawyer the court will not accept this pleading for filing. But gene
rally the signature of the counsel
will be enough In order to have this pleading accepted by the court. Again if we
literally follow rule 7, if the law
requires a pleading to be verified but the pleading is not verified or there is
insufficient verification, rule 7 says
that the absence or inadequacy of a verification meansthat that pleading is effe
ctively an unsigned pleading and
therefore it produces no legal effect.
With respect to verification,
the general rule again is the law requires
pleadings to be verified. It is only in instances that the law requires verifica
tion that the lawyer should have his
pleading verified. And the rule 7 is also very emphatic in telling t
he lawyer how to verify. The pleading is
verified by the verified statement of the affiant that he has read t
he contents of the pleading, that these
allegations are true of his own personal knowledgeor it is an authent
ic document. if the verification is not
according to the tone given in the rules that will be an inadequate or insuffici
ent verification. And under rule 7
the absence or inadequacy of verification carries with it the effect of an unsig
ned pleading. But the SC keeps on
ignoring the provisions of rule 7 with respect to verification.although it would
appear in rule 7 that absence of
verification or inadequacy of verification would be a fatal defect of
apleading. The sc keeps on ruling that
absence or inadequacy of verification is only a formal defect. So if
you come across a question concerning the
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need to verify a pleading or to determine whether a verification given in the qu
estion is adequate or inadequate
and then you are asked what is the effect. Then just adopt the rulings of the sc
that theabsence of verification in
instances required by law that the submission of a pleading with inadequate veri
fication is only a formal defect.
In fact it has always been a formal defect. It is only in the 1997 rules that th
e sc inserted these provisions that lack
of verification or inadequacy of verification is equivalent to the submission of
an unsigned pleading. but the sc
did not change the doctrines and it follows without saying that lack of verifica
tion in instances required is only a
formal defect. You might be asked whether verification of a pleading is now the
general rule given that in rule 7
all initiatory pleadings must carry with them a certification of non
forum shopping. a complaint being an
initiatory pleading will always carry with it a certification on non
forum shopping.Permissivecounterclaim is
also initiatory so we
need to append to
permissivecounterclaim cert
ification on non forum shopping. Same
withcross claim, a 3rd party complaint, a 4 party complaintbecause the
se are all initiatory pleadings.If the rule
signs the certification on non forum shopping hes not aplaintiff/ defendant. Hes j
ust a lawyer for the plaintiff
and he signs the certification non forum shopping he must be able to show a spec
ial power of atty authorizing
him to sign the certification on non forum shopping.
Somebasic principles in rule 8. We have taken up actionable document.
The first basic principle of rule 9 is the consequence of the omnibu
s motion rule. The defense/ objection is
deemed waived if it is not set up in pleading or in a motion to d
ismiss. Another basic principle is because the
rules encouraged the joinder of causes or even the joinder of parties, there cou
ld be several causes of action that
could be alleged in a complaint. there could be several defensesalso
set up in an answer and these causes of
action that are set up could be set up jointly or in the alternativ
e so that there could be a complaint with joint
causes of action. There could be a complaint with alternative causes of actions.
There could also be defense with
alternative defenses, an answer with alternative defense and answer with joint d
efenses. Rule 3 in relation to this
rule says that since there could be alternative causes or alternative defenses,
we can also have in relation to rule
3 alternativedefendant so theaction can be filed and the captionis plantiff vsde
fendant 1 or defendant2. in this ex
the defendants are impleaded as alternative defendants. since we allow
alternative causes, alternative defenses
and also alternativedefendant, can the court also tender a decision wh
ere the dispositive portion also be in the
alternative? That is also allowed. In some special cases, in replevin the last s
ec in rule 60 authorizes the court to
tender a judgment in the alternative. what is not present in our rules is the pr
opriety of a complaint where the
plaintiffs are made in the alternative. nothing is mentioned in the rules. But t
here is no mention at all in the rules
concerning complaint filed by plaintiff made in the alternative. so in
our rule nothing is mentioned about the
propriety of these complaints, plaintiff 1 or plaintiff 2 vs defendant. there co
uld be plaintiff 1 and plaintiff 2 vs
defendant. the plaintiffare named jointly. there is nothing mentioned i
n rules where plaintiffs being named in
the alternative. so again the rules expressly authorize the filing of
a complaint where the pl 1 or pl 2 vs
defendant. But if we follow the gen rule that pleadings should be liberally inte
rpretedto provide for just speedy
and inexpensive determination of the case,well if the court issues the
sc might allow a complaint where the
plaintiffs are named in the alternative, which is a principle that is followed b
y courts in the US.In federal rules in
civil procedure theres an express provision saying that plaintiffs could
benamed in the alternative,defendants
could be named in the alternative, causes of action in the alternativ
e.Defenses can also be alleged in the
alternative. Unfortunately, that provision on the federal rules on civi
l procedure were not incorporated in our
rules with respect to plaintiffs being named in the alternative. But
again we have defendants in the alternative
byexpress provision in the rules, causes of action alleged in the alt
ernativedefenses alleged in the alternative.
There could also be a judgment where the dispositive portion is writt
en in the alternative, like in the case of
replevin. But with respect to the non waivable defnses given in rule
9,it is always better to compare the nonwaivable defenses in civil actions and non-waivable defense in criminal actions.
if you go to criminal procedure,
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there are also 4 non-waivable defenses.They cannot be subject of waiver. They ca
nnot be subject of application of
the omnibus motion rule. In rule 9, the rule on non-waivable defenselack of juri
sdiction overthe subject matter,
litis pendentia prescription andres judicata. if you compare this non-w
aivable defenses to a criminal case, you
will immediately notice that there are similarities, there are also differences.
for instance res judicata w/c is nonwaivable defense in civil case. It is also non-waivable defense in criminal case
. But of course it is not called res
judicata in a criminal case. In acriminal case it is called double jeopardy. The
re was a question asked in the bar
once. Explain the concept of res judicata in treason. That is double
jeopardy. so in civil cases, re judicata is the
equivalent of double jeopardy in criminal cases.In prescription, prescri
ption in a civil case is alsonon-waivable
defense in a criminal case that is also non-waivable extinguishment or
prescription of a penalty. so in both
prescription is non-waivable defense. The 3
rd
one where this grounds are similar the absence of jurisdiction over
the subject matter that is also non-waivable in a criminal case. It is in the 4
th
ground that there is distinction bet
these non-waivable grounds. In a civil case, the ground of litis pendentia is no
n-waivable.but in a criminal case,
theres no such thing because in criminalprocedure, the 4
th
non-waivable ground is the information does not
charge an offense. That is a non-waivable defense. the only difference between t
he non-waivable defense in civil
and criminal actions is with respect to a criminal action where the non-waivable
defense is the informationdoes
not charge an offense. but in a civil case the equivalent is the failure to stat
e a cause of action. litis pendentia is
not really non waivable defense in a criminal case. so there seems to be no liti
s pendentia that is applicable in a
criminal case. but when it comes to that non waivable grounds, theinf
ormation does not charge an offense is
equivalent to a civil case if we make use of rule 16 will be failu
re to state a cause of action. But failure to state
cause of action is also a ground for a motion to dismiss under rule
16. That means to say that if the complaint
fails to state a cause of action, that it can be remedied even w/o
expressly or formally amending the
complaint.Thecourt will decide still in favor of the plaintiff although the pla
intiff has not at all amended his in
order to allege a cause of action. Is that possible in a civil case
prohibited or even in cases were the law directs the trial court to assign some
body to make an investigation as
to whether there is collusion in marriage related cases. So in a com
plaintgoverned by ordinary procedurelike
recovery of an unpaid loan. if the complaint seeks to recover from the debtor an
unpaid loan of 1m and interest
and then the defendant after summons have been served does not file an answer,
can the court now on its own
declare the defendant in default? the answer is no. default can be done only by
the court if there is a correlative
motion filed by the plaintiff. without the correlative motion, the court has no
authority to motu proprio declare
the non answering defendant in default. We need a motion. If the pla
intiff on the,other hand, does not file a
motion to declare the defendant in defaultwhen it is very clear from
the records of the case that the time to
answer has already been expired and the plaintiff does not file a mo
tion, what can the court do now if we
prohibit the court from declaring the non-answeringdefendantin default motu prop
rio? insofar as declaration of
the courtis concerned, we need a motion coming from the plaintiff. w/
o the motion, the court cannot do
anything concerning the declaration of default. if the plaintiff keeps on ignori
ng that he has a prerogative to file
a motion to declare the defendant in default. He does not exercise t
his prerogative, chances are, the court will
lose sympathy with the plaintiff and court might order the dismissal
of the case for failure to prosecute for an
unreasonable length of time.
So the rules expect a plaintiff to be
active in filing a case. What happens to the
complaint that he has filed? If he does not receive an answer on ti
me, he should avail of this remedy to file a
motion to declare the defendant in default. If he does not file a motion, hell en
d up receiving an order from the
court dismissing the case for failure to prosecute. That is under rul
e 17.And under rule 17, the dismissal by
reason of failure to prosecute is a dismissal with prejudice. That is
certainly adverse to the plaintiff because he
can no longer file another complaint for the recovery of his claim against the d
efendant.
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Supposing that plaintiff initiates this move to declare the defendant in default
, he files a motion. but the motion
that he files is called an ex parte motion to declare the defendant in default
which usually happens in trials. The
theory of the plaintiff when he files a motion to declare the defend
ant in default ex parte is because the
defendant does not even bother to answer. why should he be served wi
th a copy of the motion to declare in
default? If he is served with a copy of that motion, the defendant might enterta
in the idea of filing an answer in
order to preempt the granting of that motion. The sc said that it is not the cor
rect argument. In fact rule 9 is very
clear. A motion to declare a defendant in default will be served upon the defend
ant if it is not served upon the
defendant that motion is a useless piece of paper. So if the defenda
nt receives a copy of the motion to declare
him in default and there may be signs to file an answer and his answer is now re
ceived can the court still declare
him in default? The answer is yes. If the court follow strictly the
rules of court. But as a matter of policy if the
answer is already been filed although it is filed out of time it is now part of
the rec of the case. Will the trial court
still declare him in default? The answer is no. the sc has repeatedl
y informed the trial court that as much as
possible this very technical rule on default should not be applied st
rictly. Even if the period to answer has
already expired, but an answer is filed out of time the court should still admit
that answer and deny a motion to
declare the defendant in default. The reason why the sc has adopted
this policy is because if the defendant is
declared in default the court can right away render a judgment of default agains
t defendant without conducting
a trial. In rule 9 if defendant is declared in default rule 9 gives the trial co
urt 2 choices. 1
st
is to render judgment
right away based on the allegations contained in the complaint. 2
nd
is to require the plaintiff to present evidence
ex parte in support of his allegations. At least in the 2
nd
option there will be a reception of evidence. Unlike in
the 1
st
option the trial court will just rely on the allegations in the complaint. And
if there is trial ex parte where
the defendant is in default, the defendant will not be allowed to participate in
the trial unless he is able to secure
an order from the court to lift the order of default. So if the de
fendant is declared in default and then a trial is
ordered by the court even if defendant goes to court w/ his answer
the court will not entertain the defendant
because one of the sanctions of a declaration of default is the defendant inabil
ity to participate in the trial. So if
the defendant is in default there is 99% chance that he will lose the case becau
se he has not filed an answer at all.
And if theres going to be a trial, it is only the plaintiff who wil
l be allowed to present evidence and appear
during the trial because this is a likelihood in default in court ca
ses rule 9 is also very explicit in saying that
when the defendant is declared in default although the judgment in default is fa
vorable to the plaintiff the trial
court should see to it that the award should not be more or different than that
prayed for in the complaint. So in
our ex where there is a complaint to recover an unpaid loan, the defendant is in
default and the court orders the
presentation of evidence ex parte, the plaintiff is the only one pres
ent in court and introduce any evidence he
wants because nobody is around to object to his evidence. He presents
evidence that the indebtedness of the
defendant is not only 1M but 3M the court now decides the case if the court beli
eves that there is preponderant
evidence that will justify an award of 3m can the court render such
judgment? The answer is no. in rule 9, the
award in default judgment by the court cannot be more than what is prayed for in
the complaint. It could not be
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different from the relief prayed for on the complaint. It could be less than wha
t is prayed for in the complaint, it
could be equal but it could not be more than what is prayed for in
the complaint. Even if there is ex parte
presentation of evidence. Do we follow this rule whenever the court authorizes t
he plaintiff to present evidence
ex parte? Because of the inability of the defendant to comply with certain rules
/ orders of the court. we follow
this rule limiting the award only to default cases. A similar case where there c
ould be an ex parte presentation of
evidence is found in rule 18 on pre trial. In the rule on pre trial, the parties
should present a pre trial brief. And
they should also be present during the pre trial conf. if it is the plaintiff wh
o does not appear during the pre trial
or does not submit a pre trial brief, the court can order the dismi
ssal of the case. And that is dismissal w/
prejudice. But if it is the defendant who does not appear during a pre trial or
he does not submit a pre trail brief
the court can authorize the presentation of evidence ex parte by the plaintiff .
so whether it is under rule 18 or
rule 9, the defendant has violated certain provisions of the rules in
rule 9 the violation by the defendant is his
not filing of an answer w/in the reglementary period. In rule 18, the violation
by the defendant consists of not
appearing during pre trial or non-submission of his pre trial brief. In these si
tuation, that the defendant violates
the rules governing submission of certain papers and appearance during
pre trial then rule 18 authorizes the
trial court to allow the presentation of evidence ex parte by the pl
aintiff. Weve taken up what is going to
happen after an ex parte presentation of evidence under rule 9. The
decision of the court cannot be more than
what is prayed. The decision of the court cannot be different from w
hat is prayed. How about in rule 18? The
complaint is still for the recovery of 1m. there is an ex parte trial allow by t
he court under rule 18. The plaintiff
presentation evidence ex parte. During the ex parte hearing the the p
laintiff presentation evidence w/c
convinces the court that the entitlement of the plaintiff is not 1m
but 2m. can the court later on award to the
plaintiff 2m although his complaint prays only for the payment of 1m? if we read
carefully that provision in rule
18 the answer will be the court can award 2m because in rule 18 wh
at the court can do is to grant a relief
according to the evidence submitted by the plaintiff unlike in rule 9 w/c says t
hat the extent of the relief cannot
be more than what has been prayed for. It cannot be different from what has been
prayed for. But insofar as rule
refusal to obey the provisions of the roc. So that in our ex what the court shou
ld do is to require the plaintiff who
has dropped defendant1 to implead defendant1 in the complaint. That sh
ould be another amendment to that
complaint. If defendant 1 is an indispensable party. We use the new doctrines g
iven out by the court. that if the
indispensable party is not made a party to the case what the trial
court should do is to require the plaintiff to
implead the
indispensable party. If the order of the court is ignor
ed what the court should do is to order the
dismissal of the complaint. And that is a dismissal w/ prejudice. Sin
ce it is not advantageous for a nonanswering defendant to be declared in default because he is disallowed from part
icipating in the trial of the case,
what are the remedies for the defaulting defendant? The first one is to file a m
otion to lift the order of default.
That is before judgment based on fraud, accident, mistake or excusable negligenc
e and together w/ this motion
he should already submit his proposed answer because rule 9 also requires him to
convince the court that he has
a good defense. The only way to do that insofar as the defaulting defendant is c
oncerned is to submit a motion
with affidavit of merit and append to this motion his proposed answer
to the complaint. His answer to the
complaint shall be evaluated by the court and the court could be convinced that
the defaulting defendant really
has a good and substantial defense. And the defaulting defendant if his motion t
o lift the order is denied cannot
appeal. He cannot appeal the denial of his motion to lift the order
of default because the denial is only an
interlocutory order. That is not appealable. Supposing that the court has alread
y rendered a judgment of default
can he appeal the judgment by default? The answer is yes. He can appeal the judg
ment by default because the
judgment by default is an adjudication of the merits of the case. Ca
n he also file a petition for cert under 65 to
challenge the judgment by default? He cannot. If appeal is available then rule 6
5 is automatically not available.
But if what is being challenged only is the denial of his motion to
lift an order of default because the law does
not allow the defendant to appeal he can make use of rule 65. But
he has to convince the higher court that the
trial court has acted w/o jurisdiction in excess of jurisdiction amoun
ting to lack of jurisdiction. Supposing the
defendant simply tells the court pls lift the order of default and just allow me
to file an answer can the court give
him the opportunity to file an answer although there is already a de
claration of default the court should not
allow the filing of answer unless the court lifts the order of defau
lt if the court orders the lifting the order of
default the defendant can now file an answer although the time has a
lready expired. The court as a matter of
public policy should not apply strictly the rules on default because
the sc said if we allow strictly the rules on
default we are depriving a litigant of his opportunity to present his side.
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will form part of the allegations contained in the complaint. If the plaintiff d
oes not obey the order of the court
directing him to submit a bill of particulars what is the remedy of the defendan
t? Either to move for the striking
out of the allegations in the complaint which are vague or indefinite
. The second more practical remedy is to
move that the whole complaint be stricken out and if that complaint in its entir
ety is stricken out the case will be
dismissed. If it is the plaintiff who is the movant for bill of par
ticulars and the court directs the defendant to
submit the bill or to amend his answer but the defendant disobeys the order of t
he court what are the remedies
of the plaintiff? He can ask the court to strike out the allegations in the answ
er which are vague or indefinite or
he can also move that the answer be stricken out as a whole. If the court author
izes or directs that the answer be
stricken out although it has been filed on time because of the refus
al of the defendant to amend his answer or
submit a bill of particulars the situation will be as if the defenda
nt has not filed an answer at all and therefore
the next recourse of the plaintiff is to file a motion to declare t
he defendant in default. So this is one instance
recognized in the rules where a defendant can be declared in default
although he may have already filed an
answer on time. Usually the filing by the defendant of an answer on
time will preclude his declaration by the
court in default. So it is not always correct to say that declaration in default
is predicated on the premise that no
answer has been filed by the defendant. This is one case where there could be a
declaration of default even if the
defendant has filed an answer. The other situation is found in rule
29 the consequences of failure to obey an
order of the court related to the statute of discovery the modes of
discovery. If you go to rule 29 there is a
provision which says that if the defendant disobeys an order by the
court relating to the use and availment of
the modes of discovery, what the court can do is to strike out the
answer filed by the defendant. And if the
answer filed by the defendant is stricken out the next move of the
plaintiff should be to have that defendant
declared in default.
With respect to the filing and service of motions pleadings and other
papers with the court we should always
have in mind the difference between substitute service of pleadings an
d motions and substitute service of
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summons. The two are completely different from one another. The substitute servi
ce of motions pleadings and
other papers refers to a situation where the motion or pleading cannot be served
in person or personally there is
failure to serve even if it is service by mail by registered mail o
r ordinary mail. In substitute service of these
papers motions and pleadings what the movant should do is is to subm
in the rules of court the president the managing partner the general
manager the treasurer the corporate
secretary or in house counsel of the corporation. Remember that in th
e case of Villarosa the summons was
served upon a branch manager of the defendant and the rules do not
include a branch manager as one of the
officer upon whom summons can be served and the court ruled that the trial court
did not acquire jurisdiction
over the person of this corporation because the summons was served not upon anyo
ne of the officers mentioned
in the rules of court. Again the doctrine in Villarosa has been affirmed by case
s subsequently decided by the SC
involving corporations and partnership. But in the case of a partnersh
ip there could be a revision. When the
association with juridical entity is a partnership what the rules require is tha
t summons must be served upon the
managing partner or a general manager as the case may be. So if the defendant is
a partnership duly registered
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with the securities and exchange commission 31:22 and the partnership
is composed of four partners service
upon anyone of the partners will be a valid service of summons. Beca
use under the civil code in a partnership
the presumption is that all the partners are managing partners so we apply certa
in provisions of the civil code.
Since all partners under the civil code are presumed to be managing partners ser
vice of summons upon anyone
of the parties will be a sufficient compliance with the law.
It is in service of summons upon a natural person there is a conflict of decisi
ons rendered by the court insofar as
the decision of jurisdiction over this natural person is concerned. In
one case decided in 2006 a defendant was
sued a natural person for the recovery of money. The defendant stayed in a gated
subdivision according to the
court it means that not anybody can enter the subdivision without obtaining the
permission of the guards on the
gate or the owner of the house living within the subdivision. This defendant res
ided in this gated subdivision so
everytime that the sheriff would go to the residence of this defendant to serve
summons the guards would not
let the sheriff enter the property. The guards always told the sheriff that that
person is not around he cannot be
served with summons personally. So we will not allow you to enter the subdivisio
n. After so many attempts the
sheriff got fed up and what the sheriff did is to leave a copy of
the summons together with a copy of the
complaint with the guards of the subdivision. Is that a valid substitute servic
e of summons. Literally that is not
a valid service of summons if you will read rule 14 on substitute s
ervice of summons. It means that the
summons should be served at the residence of the defendant upon a person of suff
icient age and discretion then
living therein. If the summons and the complaint was left only with
waivable defenses like lack of jurisdiction over the subject matter. And in rule
9 there is no exception as to this
non waivable defenses there is just an enumeration of these non waiva
ble defenses and the first one is lack of
jurisdiction over the subject matter. Rule 9 does not even mention the case of T
ijam vs Sibonghanoy even by way
of exception to its character of a non waivable defense. So we argue
that under the 1997 rules Tijam should be
considered abandoned. We should forget about Tijam vs Sibonghanoy. That is not a
good argument because in
rule 47 in annulment of judgment the doctrine in Tijam was incorporated as part
of the rules of court. If you go
to rule 47 one of the grounds for annulment of judgment is lack of jurisdiction
over the subject matter. In rule 47
there is an exception, except when there is estoppel by laches. That
is an express recognition of the 1997 rules
about the applicability of the case of Tijam vs Sibonghanoy. So we still have la
ches by estoppel as a good defense
against this non waivable defense of lack of jurisdiction over the subject matte
r.
In other cases that are factually different from Tijam the SC also used another
kind of estoppel in order to bar a
party from raising the issue of jurisdiction although the trial court
really does not have jurisdiction. A good
example is the 2004 case of Soliven vs Fastforms. In the case of so
liven vs fastforms a case was filed before an
RTC after the effectivity of BP 129 and after the effectivity of the 1997 rules.
The amounts to be recovered in that
complaint was almost 800 thousand pesos. The court before which the complaint wa
s filed was a regional trial
court in Makati. So if we apply BP 129 in determining the jurisdicti
on of the court simply because the amount
sought to be recovered was in the aggregate sum of 800 thousand should not lead
us to the conclusion that the
RTC really was the competent court. That is not what BP 129 tells u
s. In BP 129, in order to determine the
competent court in complaints for money we should exclude items like
interests damages cost and attorneys
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fees. And the remainder will be the basis in ascertaining the competent court. O
bviously in this case at the start
the issue of jurisdiction was not raised at all. So the defendant in
stead of filing a motion to dismiss which was
not expected of him because he also thought that the trial court really have jur
isdiction over the case. He simply
filed an answer and in that answer incorporated a counterclaim. So th
ere was an answer by the defendant
together with a counterclaim. The judge unfortunately also did not stu
dy the complaint well so the court also
was not aware that it did not have jurisdiction over the case. Because if the co
urt read the complaint, the court
could have discovered that the amount sought to be recovered by the plaintiff as
principal amount was less than
is a continuity of decisions in
civil cases where the SC applies the principle of estoppel in pais i
n order to prevent the party from raising the
issue of jurisdiction if the party has already participated during the hearing o
f the case. The principle is we still
have estoppel by laches and estoppel in pais that will preclude the
party from raising the issue of jurisdiction.
We continue tomorrow.
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Motion to dismiss (Rule 16)
Another ground for motion to dismiss is lack of jurisdiction over the
person of the defendant.
This will take
place if the defendant is not properly served by summons, in accordance with rul
e 14 either service in person or
substituted service. The problem of the defendant if he contends before the cour
t that the court has not acquired
jurisdiction over his person is that he has to file a motion before that same co
urt. So he will then file a motion to
dismiss based on that ground, lack of jurisdiction over his person. I
f the defendant files a motion to dismiss
before the court on the ground of absence of jurisdiction over his person does n
ot the defendant admit that the
court already has jurisdiction over his person? The answer is NO. The
filing by the defendant of a motion to
dismiss on that ground is the only mechanism available to him to man
ifest to the court that the court has not
acquired jurisdiction over his person. In old cases what the defendant
did so that he can avoid that argument,
that by filing of motion to dismiss he in fact recognizes that the
court acquires jurisdiction is to tell the court
right away that his appearance before the court in filling a motion
to dismiss is considered only as a special
appearance. Only for that purpose of telling the court, that the cour
t has no jurisdiction over his person. This
special appearance rule, extend to another principle in the past, that when a de
fendant files a motion to dismiss
on the ground that the court has not acquired jurisdiction over his
person and then he has another ground in
Rule 16, by virtue of the application of the Omnibus Motion Rule, th
e decisions of the court then, will have to
the effect that if he adds to a motion to dismiss another ground me
ntioned in Rule 16, he may not use this
ground of lack of jurisdiction. That has been changed by the present
rules of court. A defendant who files a
motion to dismiss based on lack of jurisdiction over his person and
another ground, is not deemed to have
admitted jurisdiction of the court over his person. That is the present rule tha
t we follow.
In other words, a defendant is free to file a motion to dismiss citing a s to on
e of the grounds lack of jurisdiction
over his person and other grounds in Rule 16. He is not deemed to have waived hi
filed before the RTC and there is no allegation as to the assessed value, the RT
C will not acquire jurisdiction over
the case. The reason is under BP 129 there are two courts which are given jurisd
iction, RTC and inferior court.
Let us say that there is accion reinvidicatoria before the RTC but there is no a
llegation as to the assessed value of
the property, the defendant files a motion to dismiss for lack of jurisdiction,
the plaintiff of course will be given a
copy of such motion, the plaintiffs counsel analyzes the motions but the counsel
is self-centered and the counsel
thinks that he could not commit such error, so the court hears the motion. But i
n hearing of a motion to dismiss
founded on lack of jurisdiction over the subject matter, the court will not allo
w the parties to present evidence in
support of the opposition. The reason is because lack of jurisdiction
over the subject matter is purely a legal
question and the only evidence to be taken into account by the court
is the complaint itself. Applying the
principle that a court acquires jurisdiction based simply on the allegations of
the complaint.
In the hearing of a motion there will be presentation of evidence on
ly if the question that will be raised is a
factual issue, like if the ground is the obligation has been waived or paid or a
bandoned. But if the issue is lack of
jurisdiction over the subject matter, the only paper to be examined i
s the complaint itself. The court can easily
resolved by merely reading the contents of the complaint.
So the parties submit this motion to dismiss. The court concludes tha
t it really has no jurisdiction. The court
grants the motion. So the case is dismissed. The lawyer of the plain
tiff will receive the order of dismissal from
the court, he will be bothered this time. He will convert himself as
a self-centered lawyer to a more humble
lawyer, so he accepts his defeat. Can the lawyer for the plaintiff amend his com
plaint although the court order
the dismissal based on the defendants motion to dismiss? The answer i
s YES. Why do we allow amendment?
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Because the order of dismissal will not be entered until the lapse of 15 days.
The case is still pending before the
court. The plaintiff may still amend the complaint. He can rectify th
e error that he committed by inserting the
assessed value. He may do so as a matter of right, no need for the permission of
the court. Because according to
SC, a motion to dismiss is not a responsive pleading, and under rule 10, amendme
nt of a complaint is a matter of
right as long as it is the first amendment and no responsive pleading has been f
iled. The responsive pleading in
Rule 10 is an answer.
In this situation, what is the effect of dismissal, if the order is eventually e
ntered, it can no longer be challenged
and has become final and executory order. Does the plaintiff have any other reco
urse? If we are going to apply
Section 5 of Rule 16, you notice that the rule implicitly makes a d
istinction between an order under rule 16
which is founded on letters f, h and i compared to other grounds. If dismissal i
s based on f, h, i and the order has
not been entered, the remedy of the plaintiff is to appeal. But if order of dism
issal is founded on other grounds,
nothing is mentioned. What is the remedy of the plaintiff?
The answ
er is provided by Rule 41, section 1. In
analyzing rule 16, 17, 18, and 33 must relate to rule 41.
If you will go through the provisions of rule 41 section 1. There is an enumerat
ion of orders, which according to
the rules, these final orders are not appealable, although final in c
haracter.
If we relate rule 16 to 41, the
dismissal that is closely related to rule 16 in rule 41 will be the
last enumerated item, that is dismissal without
remedies. In rule 16, a dismissal under f, h, i is subject to appeal, such dismi
ssal is with prejudice because rule 16
expressly say that remedy of the plaintiff is to appeal. But if the
dismissal is founded not f, h, I implicitly the
dismissal is without prejudice. Rule 41 tells the plaintiff one of hi
s recourse, if his complaint is dismissed is
without prejudice. By simply reading rule 41, the plaintiff may immedi
ately conclude that if his compliant is
dismissed by reason of Rule 16 or any other rule which talks about dismissal wit
hout prejudice, appeal is not a
remedy available. The plaintiff should not appeal.
So if the order of dismissal is without prejudice and cannot be appealed. It is
very likely that the 15 day period
will lapse without any action from the plaintiff. Can the plaintiff challenge th
e order of dismissal even after the
lapse of 15 days? The answer is YES. Under Rule 41, although appeal is not allow
ed, the last paragraph tells the
plaintiff what to do. The remedy is to file an appropriate petition under Rule 6
5, certiorati or prohibition.
Why do we allow the plaintiff to allow petition for certiorari although the 15 d
ay period has lapsed? Under Rule
65, the filing of the petition is 60 days not 15 days. Thus even after 15 days,
he still have 45 days. But because the
dismissal is without prejudice, the plaintiff may forget to file to a
higher court, he may opt to file a new
complaint against the defendant.
We can easily understand why f, h and i is dismissal appealable. It is right a w
ay a judgment on the merits. If the
claim of the plaintiff allege in the complaint has really been extinguished. Tha
t means he really has no claim to
the defendant. Therefore, it should be dismissed with prejudice. The motion will
present a factual issue. During
the hearing of the motion, the defendant can prove that the obligatio
n has been paid, waived or otherwise
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abandoned. The hearing is as if the court is trying the case. They may present w
itnesses and evidences to prove
their allegations. The enumeration in h is not exclusive. Laches may be included
.
Remember that there is difference procedurally in a hearing on a moti
on to dismiss founded purely on a
question of law compared to a hearing on a motion to dismiss founded of a factua
l issue. If founded on a legal
issue the court will not allow presentation of evidence. The court wi
ll simply read the allegations in the
complaint. If the issue raised is factual the court will be forced to conduct a
hearing s if it were a hearing on the
merits.
Let us say that the motion to dismiss is founded in letter h, during the hearing
the defendant presents evidence
and tells the court that he has no further evidence to produce so the motion is
now submitted for resolution, the
court denies the motion. What is the next move of the defendant? Rule 16 tells h
im that he should file an answer
within the remaining period which shall not be less than 5 days. The defendant f
iles an answer, in that answer
can we incorporate as an affirmative defense the same grounds in the motion to d
ismiss? YES, he can still make
use it. Is that not repeating? He is merely repeating but it is all
owed. This is because according to the rules, if
there are grounds not raised in the pleading, these grounds will be
deemed waived. He does not want that to
apply to him. Can the defendant after filing the answer with the affirmative def
ense, move the court to allow a
preliminary hearing with this affirmative defense? The court will not
allow it because there was already a
hearing on the same ground. During the trial, he may be allowed to present addit
ional evidence.
Going back to Rule 41 in relation to Rule 16, in a dismissal with or without pre
judice, that is the court in Rule 41
in order for the party to determine whether his remedy is appeal or rule 65. If
the court orders the dismissal of a
complaint, do we consider the dismissal as a final order? YES. Any d
ismissal by the court is a final order. But
what matters is whether the order is with or without prejudice so th
at we can ascertain the remedy available.
And the plaintiff should be able to determine correctly.
Supposing that the plaintiff committed error. His complaint was dismissed due to
f,h, I but he concludes that the
dismissal is without prejudice. So he has in mind to use rule 65. He reads that
rule 65 may be availed of for 60
days. On day 40 he files a petition for certiorari, such will be di
smissed. The court tells him that the proper
remedy is an appeal. Can he make use if the remedy of appeal? The answer is NO,
because the period to appeal,
for 15 day has already expired. The order of dismissal has been ente
red. Can he file another complaint? NO,
since the dismissal is with prejudice.
If the dismissal is founded on Rule 17, we follow the same principle. In Rule 17
, there are several dismissals. It
also speaks dismissal with and without prejudice. There is also a dis
missal in Rule 18, during the pretrial, the
dismissal is with prejudice. The remedy of the plaintiff is to appeal. The plain
tiff failure to submit a pretrial brief
or failure to attend the preliminary conference. There is also another
which is found in Rule 33, judgment on
demurrer of evidence. The dismissal is again with prejudice. That is an adjudica
plaintiff again change his mind, can he file another complaint? NO.
because the confirmation of the dismissal
will be entered only after the lapse of fifteen days. Within the 15 day period,
the plaintiff can change his mind.
He will just ask the court to revive his complaint, he does not nee
d to file another complaint. no need to pay
another set of docket fees.
Supposing that the defendant files a motion to dismiss under rule 16, and subseq
uently the plaintiff files a notice
of dismissal, which of the two submission should be resolved by the court? This
issue was resolved by the SC,
what the court should do is to confirm the notice of dismissal by the plaintiff.
Section 1 also give a concept of two dismissal rule. The creditor fi
les a complaint against the debtor for the
recovery of an obligation for P500,000. A week after the filing of t
he complaint, and upon receipt of the
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defendant of the summons, the defendant visits the plaintiff, and the
defendant cries on the plaintiff and
pleaded and says that he promises to pay just dont proceed with the complaint. so
the plaintiff files a notice of
dismissal. The case confirmed the dismissal. The court has a ministeri
al duty to conform with the notice. The
defendant does not still pay. Can the plaintiff file a second complai
nt? YES the notice of dismissal is without
prejudice. The plaintiff then files a second complaint. the defendant again plea
ded. The plaintiff files a second
notice of dismissal. The court again confirms. That dismissal will now
be considered with prejudice. So that if
the plaintiff files a third complaint, such complaint will be dismissed on the g
round of res judicata.
Can the court in the second notice of dismissal, confirm the dismissa
l and say that te dismissal is without
prejudice? NO it is the rule that tells that the second dismissal is with prejud
ice, the court is not given discretion.
But there could be a situation that the second dismissal will not be considered
with prejudice. The two dismissal
rule refers to a situation where the cases have been filed before a
competent court. If one of the cases has not
been file before a competent court, that dismissal will not be with prejudice.
In section 2,involve another dismissal. This time not by mere notice
of the plaintiff but upon motion. The
plaintiff after defendant files an answer is not given a prerogative
to file a notice of dismissal but must file a
motion.
In the ordinary course, if the plaintiff files a motion, the likeliho
od is that the defendant will not object. But
section 2 gives the defendant a chance to object. Why would a defendant oppose t
he dismissal of the case upon
motion of the plaintiff if it is favorable to him? Section 2 is clear in saying
that the dismissal is without prejudice.
in other words, if the defendant does not object and the court grant
if it is the defendant.
If the conciliator or mediator fails in his attempt to convince the
parties to arrive at an amicable settlement, he
will simply submit his report to the court and the record will be return to the
court for a pretrial conference.
If we based it purely in Rule 18, the parties have the common duty. The first is
to submit a pretrial brief and the
second is to attend the pretrial conference. If the fail to submit a
pretrial brief there are serious sanctions that
may be imposed by the court. Even if they were able to submit a pretrial brief o
n time but they failed to attend
the pretrial conference there could also be serious sanctions and cons
equences. In case of the plaintiff, the
sanction is dismissal of his complaint with prejudice. In case of a
defendant, the sanction is for the plaintiff to
present his evidence ex parte. In other words, we do not observe any
more the principle that if the defendant
does not attend the pretrial conference or fails to submit a pretrial brief on t
ime, the court cannot anymore issue
and order telling that the defendant as in default.
The decision of
the court will be based on the evidence
presented by the plaintiff.
If a defendant is in default under Rule 9, the court may order the
plaintiff to present evidence ex parte, in the
absence of the defendant. The same is true with Rule 18 , if the d
efendant has filed an answer but neglects to
submit a pretrial brief or fails to attend the pretrial conference or
even send a representative armed with SPA,
what the court will order the plaintiff to do is to present evidence ex parte.
In rule 9 when the defendant is in default and there is an ex parte presentation
of evidence, the court may only
award what the plaintiff has prayed for in the complaint. But in rul
e 18, the court may make an award in
accordance with the evidence presented by the plaintiff. In other words, we appl
y the amendment in pleading to
conform to evidence in rule 18,in ex parte presentation of evidence.
But not applicable in rule 9. The reason is
because the defendant is not in default in rule 18, there is already in an answe
r.
Please also take note the difference of a pretrial conference in a c
ivil and criminal case., particularly in the
stipulations of fact. In a civil case, the parties can stipulate on facts even w
ithout a pretrial conference, in fact the
parties can simply submit to the court joint stipulation of facts but during the
pretrial conference, the parties are
present together with the lawyer for one of the principal purposes is
to enable to parties to agree on a the
existence of certain facts and that will be treated as a judicial ad
mission on the part of the parties. These facts
stipulated will be a part of the record of the case. They can be even made verba
lly. There is no rule that the facts
stipulated should be reduced in writing. But in a criminal case, the
rules are stringent. There could also be
stipulations but procedure is very strict with regard to the admissibility and e
nforceability of the stipulation of
facts. In Criminal procedure if the prosecution and defense stipulate
on certain facts that stipulation must be
reduced in writing, and must be signed by the counsel for the accused and the ac
cused himself and such must
be approved by the court.
The SC said that we also have reopening in a civil case as a remedy but since ju
risprudence requires that there
must be no judgment yet rendered by the court, the time frame for the remedy of
reopening in a civil case will
be a short period, that is from the termination of the trial which is after the
parties presented their evidence and
before thr judgement is rendered by the trial court. That could be a long period
depending on whether the trial
court renders judgment promptly. But as long as the judgement has not yet been r
endered by the trial court in a
civil case, any one of the parties can move fore reopening of the case. Because
reopening as a remedy in a civil
case should be held before a judgement is rendered, of course we cannot make use
of the grounds mentioned in
Rule 37 on newly-discovered evidence, judgement is contrary to law, we
cannot make use of these grounds to
justify a reopening of a civil case. The SC said that there are no grounds speci
fically mentioned in the Rules, in
fact, reopening a civil case is not expressly recognized. It is just
a remedy accepted by jurisprudence. And
usually, reopening is a remedy availed of in a civil case after tria
l has ended but before judgement for the
purpose of allowing the movant to offer evidence which he may have f
orgotten to present during trial or
additional evidence. So reopening is available also in a civil case b
ut the time frame is before judgment is
rendere but after trial is terminated. If you compare that to a crim
inal case, you will immediately notice the
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difference. In a criminal case, reopening as a remedy is expressly re
cognized in criminal procedure. And
reopening can be had by the accused even if there is already a judgment of convi
ction as long as that judgement
has not yet become final and executory.
So in a criminal case, you also have new trial, reconsideration, appeal and reop
ening. But after the judgement of
conviction has been entered, you will also notice that in criminal pr
ocedure, there is nothing mentioned about
petition for relief from judgement. It is not applicable. Also, there
is nothing mentioned about annulment of
judgement. And so the accused cannot make use of relief from judgemen
t and annulment of judgement. The
remedies available to the accused if his conviction becomes final and executory
could either be habeas corpus or
a petition for certiorari in the exercise by the court of its equity
jurisdiction. If the accused only feels that his
detention in prison is unlawful, his remedy is habeas corpus. The SC has made th
is very clear already. Rule 47
applies only to a civil case. It cannot apply to a criminal case. T
he SC in the exercise of its equity jurisdiction
could also entertain a petition for certiorari even if the judgement of convicti
on has become final and executory.
There is a case where the SC exercised this equity jurisdiction involving a crim
subject of Rule 65. The only remedy of the aggrieved party is to appeal from the
judgement in the merits that is
the subject of new trial or reconsideration. In appealing the judgement, the agg
rieved party can assign as error
the denial of the motion for new trial or reconsideration.
Relief from judgement, that s rule 38. Relief from judgement is a rem
edy available to the aggrieved party after
the entry of judgement. In Rule 38, there are two periods to be reckoned. The se
cond period, the 6-month period
is counted from entry of judgement. There was one case where the agg
rieved party before the entry of
judgement filed before the trial court a petition for relief from jud
gement. The filing of that petition was really
improper because a judgement has not been entered. The SC said that the trial co
urt should not have dismissed
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the petition but instead, it should have treated the petition for rel
ief from judgement as a motion for new trial
because the grounds for motion for new trial are similar to those of petition fo
r relief from judgement which is a
very liberal attitude adopted by the SC. So even if a lawyer commits an error, h
e files a petition for relief from
judgement founded on FAME but the judgement has not yet been entered, the court
will consider the petition as
a motion for new trial provided that the petition carries with it th
e requirements in 37, that is an affidavit of
merit that will prove that there was FAME.
Is a petition for relief from judgement considered similar to annulmen
t of judgement? It is not. A petition for
relief from judgement is not an independent action. In fact, it is just a contin
uation of the original case. If it were
an independent action, a petition for relief from judgement should alw
ays be filed with the RTC because it is
incapable of pecuniary estimation. But since it is not considered an independent
action, Rule 38 provides that a
petition for relief from judgement should be filed with the same court that deci
ded the case. In fact, in a petition
for relief from judgement, we use the old docket number of the case. Rule 38 is
also very specific, a petition for
relief from judgement should be filed in the same court. What is imp
ortant is the time frame provided in Rule
38. Because the judgement has already been entered, the winning party
may have already filed a motion for
execution under Rule 39. Should the court grant the motion for execut
ion? The answer is yes because that is a
ministerial duty of the court under Rule 39. If the court grants the
motion for execution, will it not render
academic the relief from judgement filed by the aggrieved party? The answer is n
o. If you read Rule 38, it says
that the executing court that granted the motion for execution can is
sue a TRO or a preliminary injunction
against the enforcement of the writ of execution. This is an exception to the pr
inciple in injunction that to enjoin
a court, the injunctive relief should come from a higher court. Here
it is the same court that issues the writ of
execution that will issue an injunctive writ against its own order to carry out
the execution.
If petition for relief from judgement is granted, can the winning par
ty appeal from the granting of the petition
for relief from judgement? The answer is no because the granting of
the petition is only interlocutory. If a
petition for relief from judgement is denied, is the denial a final order? Yes.
Can it be appealed? The answer is
no. You refer to Section 1 of Rule 41, it is a final order which is not appealab
le. The remedy of the petitioner is to
file a petition under Rule 65.
Now we go to the third remedy when the judgement has not yet been
entered, that is appeal. Appeal as a
remedy could be a matter of right or a matter of discretion. When we say that th
e aggrieved party has the right
to appeal, it means to say that when he is able to perfect the app
eal, the appellate court has no choice but to
render a decision as an appellate tribunal. When we say that appeal is a matter
of discretion, we are giving to the
appellate court the discretion on whether or not to entertain the appeal. For a
civil case, there are only 3 modes
of appeal, that is ordinary appeal, appeal by petition for review with the CA an
d appeal by petition for review
on certiorari under Rule 45. If the case originates from an inferior court, the
only mode of appeal available is the
first one, ordinary appeal, even if the questions raised are purely q
uestions of law. The Constitution does not
give to the SC exlusive appellate jurisdiction to entertain appeals in
volving purely questions of law. The
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procedure is provided in Rule 40. The aggrieved party will file a notice of appe
al and of course pay the appellate
court docket fees. In some instances, the aggrieved party is required
to file a record of appeal. The payment of
appellate court docket fees is jurisdictional. Let us say that the case pending
before the inferior court is unlawful
detainer which is exclusively cognizable by an inferior court, the inf
erior court is presented with a motion to
dismiss, is that allowed in Summary Procedure? No, unless the ground is lack of
jurisdiction or absence of prior
barangay conciliation. The defendant files a motion to dismiss based o
n lack of jurisdiction which the inferior
court grants. In Rule 16, if the dismissal is founded on lack of jurisdiction ov
er the dubject matter, the dismissal
is without prejudice. If the aggrieved party wants to bring the matte
r to a RTC, will he appeal the order of
dismissal or should he file a petition for certiorari? If he is goin
g to follow Rule 41 and the dismissal is a
dismissal without prejudice, he should not appeal. The remedy is a pe
tition under 65. But in Rule 40, if an
inferior court dismisses a case which is within its exclusive jurisdiction on th
From the inferior court we go to the Regional Trial Court. The Regio
nal Trial Court also renders its own
decision. Can a defeated party can still file motion for reconsiderati
on? Yes. There could still be motion for
reconsideration; there could still be motion for new trial before the
Regional Trial Court, even if the Regional
Trial has decided the case in the exercise of its appellate jurisdiction. There
could be another appeal to the Court
of Appeals in fact this will now be the second appeal. If the Court of Appeals h
as rendered its own decision, can
the defeated party make use of the remedies that we mentioned? Can he file a mot
ion for reconsideration? The
answer is also yes. There could be motion for reconsideration before
the Court of Appeals. Can there be a
motion for new trial before the Court of Appeals? Yes there is still
a motion for new trial before the Court of
Appeals. But this time, there is only one ground for new trial before the Court
of Appeals. The new trial in the
can be founded only newly discovered evidence. We cannot anymore use
fraud, accidents, mistakes and
excusable negligence. And if you read carefully the provisions of the rules on a
ppeals to the Court of Appeals,
you will notice that while a motion for new trial could still be av
ailed of in the Court of Appeals it is not
necessary to wait for the Court of Appeals to decide the case. Even
if the case has not yet been decided by the
Court of Appeals, the movant can already file a motion for new trial based on ne
wly discovered evidence that is
not possible when the case is before an inferior court or even befor
e the Regional Trial Court acting as an
appellate court, in the Regional Trial Court we have to wait for the
Regional Trial Court to render a decision
before we can file a motion for reconsideration or motion for new trial. With re
spect to the Court of Appeals, we
should also wait for the decision of the Court of Appeals before we
can move for reconsideration but when it
comes to a motion for new trial we do not have to wait for Court of Appeals to r
ender a decision before we can
make use of a motion for new trial founded on newly discovered evidence that is
clearly spelled out in the rules.
The availability of a motion for new trial before the Court of Appeals as long a
s the case is within the jurisdiction
of Court of Appeals. Even if the Court of Appeals has not yet decided the case,
there could be a motion for new
trial founded on newly discovered evidence and that is the only groun
d for new trial in the Court of Appeals.
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We dont make use fraud, accident, mistake or excusable negligence. But
when the case finally reaches the
Supreme Court and the Supreme Court has decided the case, then the o
nly remedy available, among the
motions that we mentioned will be a motion for reconsideration. The S
upreme Court does not entertain a
motion for new trial regardless of the merit of that motion for new trial. The r
eason given by the Supreme Court
is that the Supreme Court generally is not a trier of facts and a
motion for new trial, will always involved a
question of fact based on newly discovered evidence. So this remedy o
f motion for new trial will end to the
Court of Appeals as an appellate court but remember the new trial with the Court
of Appeals is limited to only
one ground and it is newly discovered evidence. While a new trial fi
led before the Regional Trial Court can
involve newly discovered evidence, it can involve fraud, accident, mistakes and
excusable negligence.
With respect to Rule 45, this is appeal by certiorari to the Supreme
Court, in civil cases this is the only mode
used. In other words, we cannot use notice of appeal we cannot use
a petition for review the Supreme Court
strictly applies this rule on appeal. It does not mean to say however that we ca
nnot go up to the Supreme Court
by simply filing a notice of appeal or ordinary appeal, what the rules prohibit
is ordinary appeal to the Supreme
Court that is notice of appeal if it is a civil case if the case is a criminal c
ase, there could be a notice of appeal to
the Supreme Court such as when the penalty imposed is life imprisonment or reclu
sion perpetua by the Court of
Appeals, the appeal from that criminal case will be by notice of app
eal, it will not be an appeal by petition for
review on certiorari. In a petition for review on certiorari filed before the Co
urt of Appeals, it is axiomatic that
only question of law can be raised. So if we raised question of law and also a q
uestion of fact before the Supreme
Court, the Supreme Court will not necessarily disallow the appeal, the
rules say that if the issues raised in an
appeal under Rule 45 are both factual and legal, the Supreme Court has the discr
etion to remand the case to the
Court of Appeals but that is always a matter of discretion. And when the Supreme
Court sends the case to the
Court of Appeals because the issues raised are both factual and legal
the Court of Appeals will have the duty
now to review the case and renders its own decision. But the opposite does not a
pply such as when the Court of
Appeal is the appellate court let us say there is an appeal to the Court of Appe
als through ordinary appeal, the
court of origin being a Regional Trial Court. The mode of appeal as we said is o
rdinary appeal he simply file a
notice of appeal with the Regional Trial Court and pay the appellate
court a docket fee. It is in this kind of
appeal, that the Court of Appeals where the rules require the appellant to submi
t his brief on appeal that is why
sometimes in courts decisions you will meet the term brief for the ap
pellant and brief for the appellee, these
submissions are required only if the appeal is by ordinary appeal the trial cour
t is the Regional Trial Court and
the appellate court is the Court of Appeals. If the trial court is
an inferior court and there is an appeal to the
Regional Trial Court and from the Regional Trial Court we go up to the Court of
Appeals we dont use ordinary
appeal, the mode is petition for review. If the court of origin is
a Regional Trial Court exercising original
jurisdiction, the mode of appeal is by ordinary appeal, notice of app
Rule 39 is described by the decisions of Supreme Court as the rule that which
gives life to the law. It gives
life to the law in a sense that the winning party will be able to recover the aw
ard given in his favor through the
use of Rule 39. So if the civil case is for the recovery of money and the court
awards let us say 2 million in favor
of the judgment creditor, the creditor of course will not be satisfied unless th
e 2 million is delivered to him. It is
not correct to assume that in order to satisfy the judgment we shoul
d always make use Rule 39. Satisfaction of
judgment as conceived in Rule 39 is a forcible satisfaction of judgment. So if t
he award in favor of the judgment
creditor is for the payment by the judgment debtor of 2 million pesos, the judgm
ent creditor does not even have
to think about Rule 39 as long as he receives 2 million pesos from
of a final and executory judgment can be heard ex parte by the trial court but p
revious decisions are to the effect
that the judgment debtor should also be given a copy of the motion for execution
because the judgment debtor
may have grounds to oppose the issuance of the writ of execution. You adopt that
old doctrine that the motion
for execution of a final and executory judgment should always be furnished upon
the judgment debtor and that
the motion cannot be heard ex parte.
In the Rules, there is a period fixed within which the court can gr
ant a motion for execution as a ministerial
duty. It is 5 years from entry of judgment. Then after the end of 5 years there
could be revival of judgment, no
longer a motion but an independent action to revive the judgment but
the independent action to revive the
judgment must be filed within the second five year period. The rules assume that
the period of prescription for
the enforcement of a judgment is a ten year period. Is this a correct assumptio
n? The answer is yes because that
is so provided in the Civil Code. The prescriptive period for the enforcement of
a final and executory judgment
is really a period of ten years under the Civil Code. But what Rule
39 has provided is to divide the ten year
period into two parts. First five year and the second five year period, within t
he first five years you can execute
the judgment through a mere motion, a motion for execution. After the lapse of t
he first five year period, can the
judgment creditor still file a motion for execution? Not anymore. If he files a
motion for execution, let us say on
the 7th year of the 10 year period, the court will deny the motion
because the court does no longer have the
authority to order execution through the granting of a motion for exe
cution. The second five year period is
designed to force the judgment creditor to file a separate complaint, an indepen
dent action for the revival of that
judgment. So the motion for execution should be filed within the first 5 year pe
riod of this 10 year period. Is the
first 5 year period strictly implemented by the Rules? It is not. Can it be exte
nded? It can be extended according
to the Rules. The Supreme Court has decided that if the execution of
the judgment within the first 5 year is
delayed and delay is attributable to the conduct or act that is traceable solely
to the judgment debtor again the 5
year period is correspondingly extended that is equal to the period o
f delay caused by the conduct of the
judgment debtor.
For example, within the first 5 years from entry o
f judgment, the judgment creditor files a
motion for execution. Let us say that the motion was filed on the 3
rd
year of the 5 year period. The judgment
debtor is given a copy of the motion, after receiving a copy of tha
t motion for execution the judgment debtor
files a petition for the annulment of the judgment before the Court
of Appeals. We assume that the execution
court is the Regional Trial Court. There is now a petition to annul
the judgment under Rule 47, filed with the
Court of Appeals. And the Court of Appeals grants a preliminary injun
ction which is a relief sought by the
will compel respondent to perform a ministerial duty and in Rule 39, as long as
the judgment has been entered it
becomes the ministerial duty of the trial court to grant the motion
for execution. So that is an act that is
compellable by a writ of mandamus. So that is the remedy of judgment
creditor. Can the trial court rightfully
deny a motion for execution although the judgment has been entered or
can the trial court rightfully quash a
writ of execution that is issued because the judgment has become final and execu
tory? The general rule, the trial
court cannot quash or rightfully deny a motion for execution if the
judgment has been entered but there are
certain exceptions recognized by the court. First, when the judgment sought to b
e enforced has been novated or
the judgment has already become dormant. The five 5 year period has
already stared and no motion for
execution has been filed by the judgment creditor. When the only remedy left in
so far as the judgment creditor
is concern is an independent action to revive the judgment he cannot substitute
by a mere filing of a motion for
execution. He should avail of this independent action to revive a dor
mant judgment. Can the parties, the
judgment debtor and judgment creditor enter into a compromise agreement after th
e judgment has become final
and executory?
The answer is yes.
What happens to the judgment if
there is a comprise agreement signed by
both debtor and creditor and whose terms are not consistent with the award given
; the effect is the compromise
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agreement will novate the judgment. So if the judgment awards to the
judgment creditor a 2 million pesos but
because the debtor and the creditor are long-time friends and they agree to ente
r into a compromise agreement
where they provide that the entitlement of the judgment creditor is reduced from
2 million to P1.5 million and
that the debtor will have a period of 1 year within which to mitiga
te fully the obligation. That compromise
agreement is the law between the creditor and the debtor and that will have the
effect of novating the judgment.
So if the debtor does not still pay, the court will no longer grant
a motion for execution of the award that has
been given in the dispositive portion of the duly entered judgment. So the part
ies can novate by the act of the
parties the terms of a judgment that has been duly entered, it can
still be changed that is an application of the
rule on novation in the Civil Code. Novation is a means in which an obligation i
s extinguished. Supposing that
within the first five year period the court grants a motion for exec
ution and the court issues the writ of
execution. The writ of execution is carried out by virtue of a levy on execution
on the properties of the judgment
debtor but the properties levied upon were not sold within the first five year p
eriod so at the end of the first five
only 60 days. But at present, it is has a period of 5 years. So at any time wit
hin the five year period, the sheriff
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could enforce the writ. The sheriff could make a levy on the propert
ies of the judgment debtor at any time
within the 5 year period. The only limitation enforced by the rules is that the
sheriff must make a periodic report
to the court as to the progress of the process of execution. So the
life of the legal execution under Rule 39, at
present, is a very long period of 5 years. How does the court enfor
ce a duly entered judgment through the
granting a writ of execution and the issuance a writ of execution? It all depend
s on the tenor of the judgment. If
the judgment awards money, there will be a levy on execution of prop
erties. If the judgment is on delivery of
property or delivery documents, then there will be no levy on execution of prope
rties. The property ordered to
be delivered will be seized by the sheriff and then there is delivery of possess
ion with the judgment creditor. If
the judgment directs the judgment debtor to sign a deed of conveyance
or a deed of sale in favor of judgment
creditor and the judgment debtor refuses to sign the document, the court can app
oint another person usually the
clerk of the court to sign the document on behalf of the judgment debtor.
If the judgment directs the debtor, the defendant to vacate a piece
of land or building and he refuses to vacate
building the court through the sheriff will forcibly oust him from th
e building, the court will throw out the
things belonging to the occupant from that building. Can the court ci
te the judgment debtor in contempt for
refusing to obey an order of the court which directs him to pay let us say 2 mil
lion pesos? In a deed of execution
to be issued by the court in this case in a money award, the writ will be direct
ed to the sheriff but the writ will
contain word for word the dispositive portion of the decision. So if the sheriff
of the court goes to the debtor, the
debtor can refuse to pay and the debtor can even go to court and t
ell the court that I have money but I dont
want to pay, I will get sick of pneumonia if I pay judgment creditor. Can the co
urt cite him in contempt? No, the
court cannot cite him in contempt. This was a question in the bar e
xamination four years ago. Citation for
contempt is not a remedy in Rule 39 generally to enforce a judgment because Rule
39 contemplates enforcement
of a judgment by the sheriff of the court making use of the process
es in Rule 39 which is levy on execution of
properties so if a judgment debtor refuses to pay the creditor cannot
go to court and ask the court to cite the
debtor in contempt of court that is not contempt of court because th
e according to the court the writ is not
addressed to the judgment debtor, the writ is addressed to the sheriff of the co
urt so it is the duty of the sheriff
reason of the 3
rd
party claim, he
can avail of the remedy to file a complaint for the recovery of the real or pers
onal property, as the case maybe.
But the easiest and most practical remedy available right away to the
third party claimant is this third party
claim. A third party claim does not require the filing of a pleading, it is just
an affidavit filed by the third party
claimant to the sheriff or to the court
In the affidavit, one should also append supporting documents and pape
rs that will justify his claim to the
property. What will the court do with this 3
rd
party claim? Can the execution court study and evaluate this third
party claim and eventually render a decision determining if the 3
rd
party claim is a proper or just claim? Can the
court render a judgment that will tell the sheriff that the true owner of the pr
operty is not the 3rd party claimant
but the judgment debtor? The court has no such authority because we
are already at the stage of execution of
judgment. In so far as the court is concerned, the case is already
completed, it has been terminated. The third
party claim will just be an incident to the execution process that i
s being followed by the court.Therefore, the
court has no authority to resolve an issue of ownership involving the
property that has been levied upon. The
issue of ownership should be threshed out in a different and separate
proceeding. So if the execution court
issues an order saying that the owner of the property is not the th
ird party claimant but the judgment debtor
and the third party claimant does not assail the decision, that order will not b
e entered because such decision is
not rendered on the merits, it is not a final order. It will not c
onstitute res judicata in so far as the third party
claimant is concerned. Regardless of the finding of the execution court that the
true owner of the property is the
judgment debtor, that will not be binding on the third party claimant. If at all
, the consequence of that finding of
the court is that the sheriff can proceed with the public auction sale of the pr
operty. If the sheriff schedules the
property subject to a third party claim to a public auction sale, the remedy of
the third party claimant is to file an
independent action in order to prevent the sheriff from selling the p
roperty (complaint for injunction and
damages, for instance). That is one of the remedies available to the
third party claimant. You do not file that
complaint in the execution court. If it is a complaint for injunction, you shoul
d file it in the Regional Trial Court
which has jurisdiction over the case and the venue will depend on th
e residence of the third party claimant or
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the sheriff or the judgment debtor. And it is the third party claimant who will
have the right to choose the venue
of the action.
If the property levied upon, on the other hand, is a personal proper
ty, say a car in the possession of the
judgment debtor but is really owned by the third party claimant, can the third p
arty claimant file a complaint for
replevin to recover the car from the sheriff? Of course, in that complaint for r
eplevin, the defendants would be
the sheriff and also the judgment creditor because the levy was a result of a mo
tion for execution that was filed
by the judgment creditor. If the execution court is RTC and the third party clai
mant decides to file a complaint
for replevin, can he file the complaint before an inferior court? Yes
, because a complaint for replevin is
cognizable by the inferior courts depending upon the value of the personal prope
rty. So if the execution court is
the RTC, but the car is valued at only 250,000 pesos and the true
owner, the third party claimant files a
complaint for replevin, the complaint will have to be filed with the
inferior courts. That inferior court, in the
complaint for replevin can issue a writ of replevin or a warrant of
seizure before the sheriff and the judgment
creditor could file an answer. We would have a complicated situation where the s
heriff has seized a property by
virtue of a levy on execution in fact the sheriff has scheduled a p
ublic auction sale for the car but at the same
time there is a warrant of seizure or a writ of replevin issued by an inferior c
ourt which directs he sheriff of that
inferior court to seize the car from the sheriff and the judgment cr
editor. Can the judgment creditor and the
sheriff argue before the inferior court that the inferior court does
not have the authority to issue the writ of
replevin or warrant of seizure because that is interfering with the processes is
sued by the Regional Trial Court?
The answer is no. The sheriff of the inferior court can enforce the replevin. He
can seize the car from the sheriff.
Although the sheriff is in possession of the car, by virtue of a le
vy on execution, can not the sheriff or the
judgment creditor capitalize on the provisions of rule 60 that a writ
of replevin cannot be enforced when the
property is already subject to attachment or the property is under distraint by
reason of non-payment of taxes. If
you go to rule 60 on replevin, that is really a requisite, an essential requisit
e in the issuance of a writ of replevin.
The replevin court can issue a writ of replevin validly if the property to be se
ized by the writ of replevin is not
under custodia legis, either levy on attachment or levy on execution.
If that car is subject to levy on execution,
then that car is under custodia legis. But notwithstanding that provision in Rul
e 60, the court said that the writ
of replevin issued by the inferior court will prevail over the levy on execution
made by the sheriff because such
levy on execution is a void execution. The requirement in 60 which s
tates that property under custodia legis
cannot be the subject of a writ of replevin assumes that the levy o
n execution is a valid levy on execution. We
said a while ago, that for levy on execution to be valid, the prope
rty levied upon must be a property of the
judgment debtor. If the judgment debtor is not the owner of the prop
because levy under Rule 39 does not affect ownership of the property.
Levy only creates a lien. When the
property of the judgment debtor is levied upon, he does not lose own
ership of the property. He could lose
ownership of the property if there is a public auction sale of the
property and even if there is a public auction
sale of the property later on, the public auction sale does not nece
ssarily mean that he will automatically lose
ownership of that levied and sold property especially if that property
is a piece of land. Under rule 39, the
judgment debtor can still exercise right of redemption so that he will still kee
p his title to the property.
In cases where there are two different levies over the same piece of land owned
by the jd, usually the property
will be sold as a result of the first levy of property. If the property is later
on sold at public auction, and the law
gives the jd a right of redemption, this right of redemption will also be enjoye
d by the second levy owner. Rule
39, in its definition of a redemptioner, names the jd and his succes
sors-in-interest and any creditor who holds
another levy or lien subsequent to that of the levying creditor who has caused t
he sale of the property. So in our
example, if this piece of land belonging to the jdis sold as a resu
lt of the first levy, the judgment debtor can
redeem and the second levy holder can also redeem. The right of the jd to redeem
is distinct from the right of the
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second levy holder to redeem the property. If it is the second levy holder who r
edeems the property, the jd can
make a further redemption of the property. There could be another redemption by
the jd. But if it is the jd who
redeems the property, then the second levy holder can no longer exercise the rig
ht of redemption. In the rule of
successive redemption in Rule 39, when it is the jd who redeems the
property from the highet bidder, further
rights of redemption are cut off by virtue of the redemption made by
the jd. We can speak of successive
redemption if the redemptioner is not the jd himself. If ht one who redeems is a
redemptioner or another levy or
lien holder, we can apply the rule on successive redemption which say
s that another redemption could take
place within 60 days from the efficacy of the first redemption even
if the period of redemption has already
expired. For instance, if there are two redemptioners and if we inclu
de the jd, meaning to say there are three
persons who can redeem the property. If the redemption is carried out
by the jd, the other redemptioners will
lose their right to redeem. The period of redemption for all of them
is 1 year from the registration of the
certificate of sale. We are going to assume a redemption made should be within 1
year from the registration of
the certificate of sale. If the second levy holder redeems then the third levy h
older can also further redeem from
him within 60 days from the date of the last redemption. But in any event, withi
n that 1-year period, the jd can
always exercise his right of redemption. And if it is the jd who in
deed exercises redemption, the right of
redemption given to others will be cut-off. Will it not prejudice these other le
vy holders if we cut off the right of
redemption? It could not prejudice the other levy holders. Since they are other
levy holders if the jd redeems the
property, they can still enforce their levy, they can have another pu
blic auction sale of that levied property. In
civil law as well as in rule 39, the SC has accepted the principle
that whenever there is a doubt in the
interpretation of redemption rules and laws, the interpretation should
always be in favor of the jd or the
redemptioner. But rule 39 is also very clear in saying that right of redemption
will exist only when the property
sold at public auction is a real property. When the property levied upon and sol
d at public auction is personal
property, there is no ror. Because of these distinctions given in the
rules, the SC has also come out with
principles that are applicable to redemption of real property and prin
ciples applicable because there is no
redemption as to real property.
One of these principles is that when the properties levied upon and sold at publ
ic auction is personal property
and the price is inequitably low at public auction sale, the sale is
void. There has to be another sale of the
property. The personal property is a car owned by the jd, the market
value of the car is 800,000. At the public
auction sale, the highest bid is only 50,000. Here, the highest bidde
r can acquire a car worth 800,000 for only
50,000. If we apply the principles given by the SC, the same is voi
d. The highest bidder does not acquire
ownership over the property, the court can issue an order declaring the same as
ineffectual and that the same is
void because the price is inequitably low. So the sheriff must schedule another
public auction sale until the price
that will not fall within the classification of an inequitably low pr
ice. But when the property sold at public
auction is real property, it does not matter whether the highest bid is high or
low or even if the price generated
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is inequitably low. In fact the SC said we cannot use this concept
of inequitably low price when the property
sold is a real property because of the principle of redemption- the right of red
emption given to the jd. And the
court explained that even if the piece of land owned by the jd is worth 700,000
and highest bid is only 50,000, the
sale is valid. The highest bidder can acquire ownership over the property if red
emption is not exercised by the
jd. The SC said if the price is very low and the property is real,
that is advantageous to the judgment debtor
and b, all you have to do is look for conclusive in letter a and letter b. Lette
rs a and b use this word conclusive in
both instances and then you analyse the clauses that follow the word conclusive
in letter a and the clauses that
follow the word conclusive in letter b and you will immediately appre
ciate between a judgment in rem and a
judgment in personam. In letter a, the law says the judgment is conclusive upon
the title to the thing, upon the
will or administration, upon the personal, political or legal condition of the p
erson. Whereas in letter b, the word
conclusive is followed by the phrase upon the parties and their succe
ssors-in-interest litigation for the same
thing under the same title and in the same capacity. So that right
away, when the judgment is a judgment in
rem, the judgment is conclusive not upon the parties, it is conclusive upon the
title to a thing, upon the personal
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political or legal condition of a person. This is the reason why a
land registration or a cadastral proceeding is
considered as an action in rem because the judgment in these proceedi
ngs is conclusive upon the title, it is not
considered conclusive upon the plaintiff or defendant. If the judgment is conclu
sive upon the title to the thing,
that judgment will be binding upon the litigants or anybody who might have an in
terest to the title of the thing
although these persons might not have been involved in the litigation process. I
n the probate of a will which is
another proceeding in rem, where there is a decision by the court admitting the
will to probate, it is conclusive
upon the will or administration therefore anybody who might have an i
nterest in the will will have to respect
that decision by the court. The personal condition of a person, if a person has
in his favour a decree of adoption,
he is the adoptee of Juan Dela Cruz, the decree is conclusive upon
the personal status of that adoptee and
therefore, anybody who transacts with the adoptee will be bound by th
e decree of adoption issued by the
adoption court. But you will notice, there is a caveat in letter a when it comes
to probate of a will. The probate of
a will is not conclusive upon the fact that the testator is dead. It is only pri
ma facie. If at all, it can serve only not
as a conclusive proof of the death of the testator but it could convince the cou
rt that the testator really is dead.
The reason for the caveat is because in civil law, as well as in rules of court,
a probate of will can be commenced
even if the testator is still alive. Ordinarily, we conceive a proceeding for th
e probate of a will as one wherein the
testator is already dead, that is not so, under the civil code and the rules of
court. There could be a proceeding
for the probate of a will even if the testator is still alive provi
ded that it is the testator himself who will
commence the petition for the probate of his own will. That is the reason for th
e caveat in letter a of sec. 47. The
the promissory note is concerned. That is the rule of conclusiveness in the last
paragraph of sec. 47.
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In sec. 48 which, as we said, refers to a foreign judgment, this se
ction also refers to a foreign judgment in rem
and foreign judgment in personam if you read the first two paragraphs of sec. 48
. In sec. 48, it is provided that
the judgment of foreign court is conclusive upon the title to the th
ing and a judgment against a person is a
presumptive evidence of the rights between parties. So the first part speaks als
o about a judgment in rem that is
adjudicated by a foreign court, the judgment in rem is conclusive also upon the
title to the thing. But when the
judgment is in personam , the judgment of the foreign court is only
a presumptive evidence of the rights
between the parties in the complaint. An illustration of that judgment in person
am rendered by a foreign court,
there is a creditor and debtor suit in a foreign country, say, before a Japanese
court. The relief which the creditor
seeks before the Japanese court is for the recovery of an unpaid loan. The Japan
ese court in favour the creditor.
So the debtor is required to pay the said sum of 100,000 US dollars
. The Japanese court has not executed the
judgment but somehow the creditor and debtor live in the Philippines,
they are now in the Philippines. The jd
has accumulated certain properties in the Philippines. Can the jc in
that Japan case file a motion for execution
before a Philippine court? The answer is no. you cannot file a motion before a P
hilippine court. The Philippine
court knows nothing about the Japan case. There is no basis for the Philippine c
ourt to issue a writ of execution.
Is there a remedy available to the creditor in order to enforce the decision of
the Japan court in the Philippines?
The remedy is the second paragraph of Rule 48 which says that the judgment of th
e Japan court is a presumptive
evidence of the rights between the parties. How does the jc make use
of the rule that the decision of the Japan
court is a presumptive evidence of the rights between the parties to
the case? The creditor should file an
independent or separate complaint for the enforcement of the decision of the Jap
an court and the only evidence
that he needs in order to convince the court that there is preponderance of evid
ence in his favor is a certified true
copy of the decision rendered by the Japan court. If he is able to present a cer
tified true copy of the decision of
the Japan court, the local court will now apply the presumption given
in sec. 48 that the decision of the Japan
court is a presumptive evidence of the rights between the parties. That is enoug
h to convince the courts that the
creditor is really entitled to recover some amount from the defendant.
But you will also notice that in sec. 48,
there is a last paragraph which speaks about repelling a judgment by a foreign c
ourt whether it is a judgment in
having the judgment set aside. If he only opposes the motion for execution and t
he ground of his opposition is
that the court did not have jurisdiction over the case, that is not
a direct attack, it is collaterally attacking the
judgment because he is only setting up that defense in order to avoi
d execution of judgment. In a foreign
judgment sought to be enforced in the Philippines, sec. 48 appears to
allow a collateral attack on that foreign
judgment which is not allowed in so far as a domestic judgment is concerned. Wit
h respect to the other grounds,
collusion and fraud, they are also grounds to directly attack judgment under Rul
e 47 even under Rule 38-petitio
for relief from judgment. But what cannot be done our system is a c
ollateral of final and executory judgment.
But there is one occasion, according to the Supreme Court, where we could collat
erally attack a judgment. If the
judgment is on its face a void judgment, for instance, a judgment rendered by a
court contains only a dispositive
portion, it does not contain findings of fact or conclusions of law, that judgme
nt is, on its face, a void judgment.
It does not with the constitutional requirements of a valid judgment. That can b
e attached collaterally. So if there
is a motion for execution for that judgment, an opposition can be se
t up attacking the validity of the judgment
because it does not with the constitutional requirements of a valid judgment. so
in the matter of attacking a local
judgment, as long as the judgment, on its face, appears to be a valid judgment,
in writing, there are findings of
fact and conclusions of law, there is the signature of judge, there is presumpti
on of correctness of judgment. The
only way to have it set aside is to file an action directly for the purpose of d
eclaring that judgment null and void
- annulment of judgment. You cannot do it by simply opposing a motion for execu
tion. You cannot even do it in
order to oppose the petition for a revival a judgment. A petition to revive a ju
dgment is an independent action
available to a jc who has failed a judgment within the first 5 year
s from the entry of judgment. If the jc files a
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petition to revive the judgment, the defendant will not be allowed to
set up the defense that the judgment
sought to be revived is not valid because of lack of jurisdiction, that is anoth
er example of a collateral attack on
the judgment.If the argument that the judgment is void is only used as a defense
in a separate proceeding other
than annulment of judgment, that is always a collateral attack of judgment and t
hat is not allowed in our system.
The term Provisional Remedies is considered synonymous to two other te
rms as per the circulars of the
Supreme Court. And these two other terms are interim reliefs and prov
isional order. So the terms provisional
remedy, interim relief and provisional order refer to one and the sam
the law also provides that the family court can grant these provisional orders w
ith or without a hearing. Which
can also be present in the rules of court, there are some provisional remedies t
hat can be granted ex parte, there
are also provisional remedies which need a summary hearing before they can be is
sued by the court.
In the Amparo circular, when it comes to the interim relief of production and in
spection order, there must be a
motion filed by the applicant and there must be a hearing conducted by the court
. In respect to protection order
and witness protection order, these provisional remedies can be issued by the co
urt without a hearing, ex parte.
In the Amparo circular, there is nothing mentioned about the posting
of a bond by the applicant, so it would
seem that just like the circular on marriage related cases the court
do not need a bond before the court can
validly issue this interim relief.
In the writ of Kalikasan, the usual provisional remedy that is issued
by the court is of temporary environment
protection order. The applicant is not required to post a bond in th
e matter of issuance of temporary
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environmental protection order, and just like the preliminary injunction, there
can be an ex parte issuance good
for 72 hours, but the Kalikasan court can extend that until the case is finally
decided.
So if you compare that temporary environmental protection order to the
temporary restraining order, In TRO
there is a definite time, and it is called a stag, it cannot be ex
tended by the court, but in Kalikasan cases the
temporary environmental protection order can be extended by the court until the
case is finally decided. There is
also no need for a bond.
What is original in this Kalikasan circular is the party who will be required to
post a bond in the TEPO is not the
applicant, it is the adverse party, who will file a motion for the
victim of the TEPO. In most instances of
provisional remedies where there is a need for the filing of a bond,
like attachment, preliminary injunction, or
replevin or receiver, this can be defeated by the filing of a counte
r-bond. The same is true with the
environmental protection order, but the difference is that the applican
t is not required to post a bond, but the
adverse party moves for the victim of that environmental protection order, he wi
ll need to require to post a bond
to protect the interest of the adverse party.
Another rule that applies provisional remedy that is in common, the i
ssuance of these interim reliefs is always
interlocutory, the order is not the final order because it has nothing to do wit
h the merits of the case. And since
the granting of the provisional remedy is interlocutory therefore it i
s not applicable. The accepted remedy to
challenge an order granting the provisional remedy is rule 65. But in some circu
inferior court has jurisdiction over the principal case the inferior court has t
he authority to grant this provisional
remedies as long as the requirements given in the rules and in the circulars are
complied with.
Going to rule 57, in section 1 there are 6 instances where the cour
t can properly grant an application for
preliminary attachment. In respect to the first 5 instances, there is a common r
equisite, that there is an intention
on the part of the adverse party to defraud the applicant. It is on
ly in the last instance where there is no such
requirement that must be shown that the adverse party has intention t
o defraud the applicant. The only
requirement is that the defendant is a non resident and not found in the Philipp
ines and summons can be served
upon him by publication. So even if there is no allegation that the adverse part
y have intention to defraud, there
could still be a preliminary attachment issued by the court. The fact that the d
efendant is a non-resident and is
not found in the Philippines, is closely related to the provision in rule 14 whe
n the party can properly apply for
publication of the summons in order for the court to acquire jurisdic
tion to try and decide when a property of
the absent defendant is a non-resident and is not found in the Philippines is th
e subject of attachment that action
in personam against the defendant will be converted into quasi rem by
virtue of the preliminary attachment
issued by the court implemented by the sheriff of the court. So instead of this
last instance, the sole purpose of
the applicant in moving for the issuance of PA is to enable to obta
in a security for any judgment that may be
rendered later on by the court.
So if you envision a case that is pending in the trial court, there is a plainti
ff who filed a complaint for money,
there is no security that has been given to him and then the debtor
according to the applicant is a dishonest
person and intends to leave the Philippines with the intention to defraud the ap
plicant, or he may not actually
defraud the applicant. If you will note in the cases mention in Section 1 the co
nduct of the adverse party will be
criminal in character, embezzlement, misappropriation or property entrusted to h
im. That is why it is a common
saying in preliminary attachment, that the fraud committed by the adverse party
could be a criminal fraud, that
is a crime under RPC or only a civil fraud, it is an act of fraud
but it has not reached the level of a crime. And
that will justify the issuance of a writ of PA. So it is called a civil and crim
inal fraud, it will be sufficient for the
issuance of the preliminary attachment. But the conduct should fall within anyon
e of the instances mentioned in
section 1. So if the debtor instance draws a check and delivers the
check in payment of his obligation to the
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creditor and the check bounces, can the creditor file a complaint and ask for th
In an action where the PA is issued by the court, the writ will only be lifted i
f there is a counter-bond, deposit or
the court withdraws the order or reverses it. But ultimately the court will have
to decide the merits of the case,
whether or not the plaintiff is entitle to recover. If there is judgment in favo
ur of the applicant, can the adverse
party move for the recovery of the damages even if he lost the case
? Yes, if the applicant wins the case on the
merits, he can still be held liable for damages because the issuance
of the PA is improper or irregular. It was
explained that if the applicant eventually wins the case it means the applicant
has a cause of action. To which the
allegations contained in the verified application for preliminary attachment as
stated in section 5. That verified
allegations contains some serious allegations. First one is that the a
pplicant has a cause of action, but if the
applicant wins. It does not necessarily follow that he has complained with the s
econd allegations in the verified
application which is the applicant has a cause of action and that cause of actio
n falls under anyone of the cases
mentioned in section 1 or rule 57. So if the applicant wins, definit
ely he has a cause of action. But it does not
mean to say that his cause falls under anyone of the cases in secti
on 1. He may not be able to prove that the
existence of dishonesty or the intention of the defendant to defraud the applica
nt. So if the applicant is not able
to demonstrate that his case falls under the any of the cases in se
ction 1, that means to say that the issuance of
the PA is improper and irregular. The only instances where the court can grant P
A are the instances mentioned
in section 1. If the defendant wins the case on the other hand, it
means to say that the applicant does not even
have a cause of action, because the complaint is going to be dismissed. The liab
ility of the applicant for damages
will come as a matter of course, but section 20 provides the procedure to be fol
lowed in rendering the applicant
liable for damages for the wrongful or improper issuance of PA.
The first principles in section 20, is that the recovery of damages
should be had in the same case, not in a
separate or independent civil action. So in that complaint filed by t
he applicant, the adverse party must have
already submit an application for the recovery of damages arising from the wrong
ful improper issuance of PA.
The most practical way or informing the court that the adverse party has a claim
for damages is to set up in the
answer a compulsory counter claim, for the recovery of damages. If he
sets up a compulsory counterclaim, for
the recovery of damages, and then he eventually wins, he will just have to ask t
he court to motion for the court
to conduct a hearing to the extent of likability to which the adverse party is e
ntitled. What rule 57 tells us then is
that it is not possible for the defendant who has won the case to
file a separate complaint for the recovery of
damages arising from the wrongful attachment. If he asks so that acti
on will be dismissed even if there is no
motion to dismiss filed in that second complaint because the ground for dismissa
l is res judicata which is a nonwaivable defense.
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fixed by the court. And the general rule which we follow is that a
court cannot grant a TRO and PI without a
hearing, unlike a PA. We should always expect a hearing conducted by
the court even in cases of the TRO. If
TRO is granted ex-parte, it is only by way of exception. The general rule is tha
t we need a hearing. Although it is
a summary hearing with notice to both party in case of TRO. There is an exceptio
n however given in the rules,
when there is grave and irreparable injury.
The court if it is a one sala court can grant a TRO that will not go beyond 20 d
ays, not extendible. But the court
will fix a TRO bond. During the 20 day period, the court will condu
ct now a new hearing for the purpose of
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determining whether or not the court will issue a PI. With respect t
o PI, the presence of summary hearing is
absolute. A court cannot grant a PI, without a hearing, there is no exception. T
here must always be a hearing to
be conducted. It is only in TRO where there is an exception to the general rule,
there can be an issuance of TRO
ex parte as an exception. AN in the multi-sala court, that is where courts consi
sts of different branches, there is
an executive branch, the executive branch can issue a TRO ex parte,
but the TRO ex-parte is good only for 72
hours that is 3 days. And then, in a multi-sala court, what the petitioner usual
ly files in the court is a motion of
special raffle and then if the motion is granted by the raffle. In the meantime
the executive judge will issue exparte TRO good for 3 days and after the raffle is completed, the sala before whi
ch the action has been assigned
will now conduct a summary hearing to determine whether or not it wi
ll issue a writ of PI. Do not forget the
modification in rule 58 by the 2007 circular of the SC. It has something to do w
ith the court that has issued a writ
of PI. The modification in 2007 is that if a court issues a writ of PI which has
no term anymore, that is it is good
until it is lifted or until the case has finally decide, unlike the TRO. That th
at court that issued the writ of PI must
decide the PI within a period of 6 months that is the modification
introduced by 20067 circular. The idea of
course is very easy to understand, if the court does not raised a need of 6 mont
hs to which the principal action
could be decided, the PI will be perpetual injunction, because it is good until
the case has been finally decided.
So if the court grants a PI today, it has only a period of 6 months within which
to decide the principal case. And
in deciding the principal case, the court would either rule in favour
of the applicant or defendant. If the court
rules in favor of the defendant, the PI is automatically lifted. That means to s
ay that plaintiff has no right at all.
Although the power of the court to enjoin the performance of the act is broad th
ere are certain instances given in
substantive law that is mentioned in the circulars of the Supreme Court where th
or forcible entry. The civil code contains some articles about procedu
re when there is a complaint pending
before an inferior court involving an unlawful detainer and forcible e
ntry. And in the civil code, it is provided
that the court may grant PI or PMI in cases of ejectment. If it is
an inferior court that grants a PI or PMI, that
cannot be appealed that cannot be challenged under rule 65. In summar
y procedure rule 65 is a prohibited
pleading. If rule 65 is used in order to challenge an interlocutory order, and t
he granting of PI or PMI is always
an interlocutory order that is the rule that we follow, as well as in civil code
. In PI or PMI granted by an inferior
court in ejectment cases cannot be appealed, cannot also be challenged
by petitioner under rule 65. But when
that ejectment case is appealed to RTC, that has jurisdiction in appellate juris
diction, the civil code provides that
the RTC as an appeal court can also grant a PI or PMI if applied by plaintiff. T
he PMI or PI granted by the RTC
is still not appealable because it remains interlocutory but it can now be chall
enged by Rule 65. While we cannot
challenged an interlocutory order granted by an inferior court, in summary proce
dure, if the same interlocutory
order is granted by the RTC as an appeal court, but rule 65 is a
remedy. So we can challenged a PI or PMI
granted by the RTC in ejectment cases. The reason is that in ejectme
nt cases. Summary procedure governs the
case if it is still pending with the inferior court. But once it is appealed to
RTC, the RTC will no longer observe
the summary procedure. It will now follow the regular procedure given
in the rules of court as an appellate
court.
The third provisional remedy is the receiver which is one provisional
remedy that has future not present in
other provisional remedy. Provisional remedies are contemplated to be used by li
tigants during pendency of the
case, that there is a need, we must have an independent action where we can give
to the applicant a venue for
the use of the provisional remedies. In receivers, the court can appo
int a receiver during the pendency of the
case if no judgement has been rendered but under the rules, the receivership cou
rt could appoint a receiver after
the case has been finally decided and the receivership court can still appoint a
receiver even if there is a process
of execution under rule 39. So if the judgement of the court has been entered, i
n fact if it now in the process of
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execution and satisfaction of judgement, a court can still appoint a
receiver as provided under rule 39. After a
case has been finally decided, there is no more reason for the court
to grant a PI, PMI, if at all, the attachment
will be converted into a final attachment but that will simply be a
levy on execution. The PI will be converted
into a permanent injunction. It ceases to be a provisional remedy, but in the ca
inferior court, if it is worth 600k, it will be filed in the RTC. But as long as
it has jurisdiction, these courts have
the authority to grant in our complaint to recover possession of the car with a
writ of replevin.
The bond required is also different form the usual bond, in other pr
ovisional remedies. The bond required is
always double the value of the personal property. In other words, unl
ike in PA PI where the court has the
discretion to fix the amount of the bond, in replevin, the court has no discreti
on, the replevin bond will always,
be in double of the value of the property as alleged in the complaint. So if the
complaint alleged that the value of
the car is 700k the replevin bond will be 1.4 million. The court ha
s no authority to further decrease or increase
the bond, it will be based on the value of the property according to the allegat
ions contained in the complaint. If
all these requisites are met, the sheriff will seize the property fro
m the defendant, or from any person who
claims to be entitled to its possession because of the authority given by the de
fendant.
The problem arises when the sheriff seized the car, that the car is not in posse
ssion of the defendant, the one in
possession of the car, claims that he is the owner of the car, he is entitled to
the possession of the car, he does not
even know who the defendant is. If that is the situation, the sheriff will not s
eize the car. Because the authority of
the sheriff to seize the car in replevin is very clear, he will sei
ze the car if it is possession of the defendant or
some other person claiming under the authority of the defendant. If it is in the
hands of a third person, who does
not raised his interest from the defendant, the sheriff will be commi
tting a crime if he seizes the car from the
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third person. So that is always a likelihood, that a writ of replevi
n even if granted by the court, can easily be
defeated if the sheriff submits a return to the court, informing the court that
he could not seize the car because it
is in possession of a third person who is not a litigant in the case. In order t
o remedy this situation, lawyers have
always advised the clients who are plaintiff that if they file a com
plaint should always implead the defendant,
the first defendant should be a known defendants.
A person who acco
rding to the plaintiff is in possession of
the car and the other defendant to be impleaded is an unknown defend
ant, so we have a complaint where the
caption is plaintiff vs. Juan dela Cruz and john doe, an unknown def
endant, we also make use of that. So that
when the sheriff looks for the car, he does not find in possession of Juan de la
Cruz, he finds it in the possession
of a third person, that third person will be John Doe. So the sheri
ff can rightfully seize the car from anybody
who might be in possession of the car. That solves the problem of the sheriff in
enforcing the writ of replevin.
You know the rule in unknown defendant, we have to give him name in
the complaint itself. John Doe...
anybody who might be in possession of the car, who might be an unknown defendant
. If the car is seized, there
is a holding period of a 5 days, within that 5 days period, the defendant should
do something if wants to recover
the car. The defendant should file a motion to challenge the sufficie
ncy of the bond, although it is double the
property. He can say that the complaint is undervalued in order that
the replevin bond became smaller. That
could be an issue raised. Or if there is a third party claim filed, if a third p
erson claims to be the true owner of
the car, then he can file a third party claim just like in 39 and 57. But the di
fference in 60 is that the third party
claim in rule 60 must be filed within the 5 day period, if it is
not filed within the 5 day period, it becomes a
useless third party claim. After the end of 5 days, the sheriff has
the duty to deliver the car to the plaintiff so
while the case is going on it is the plaintiff in possession and enjoying the ca
r.
There was another case decided by the Supreme Court whose facts are as follows.
A complaint for replevin was
filed by applicant for recovery of personal property capable of manual delivery.
The court included that the writ
that the sheriff cannot enforced the writ because the car can no lon
ger be found, it seems that the property
simply disappeared. What the plaintiff did after receiving the writ of return wa
s to file another application this
time for preliminary attachment of the properties of the defendant. So based on
the same complaint, he moved
for replevin which cannot be carried about, he moved for the PA on
the ground that the defendant has gotten
old of the property and that he has hidden by the car because the car cannot be
found at all. If we go back to 57,
that could be a ground for the issuance of PA. The SC said that th
e conversion of application for PA could be
properly filed so that the new provisional remedy from replevin could be done fo
unded on the same allegation
in that complaint. The court said it is not proper. That if the plaintiff does n
ot succeed the writ of replevin issued
by the court, he cannot simply file another application for the issuance of PA o
ver the same property or different
property. If the plaintiff decides to move for PA because of failure to carry ou
t the replevin, he should overhaul
the complaint filed. The allegations contained in the complaint for th
e PA are different from the allegations
contained in the issuance of writ of replevin. In a complaint for re
plevin, the plaintiff tells the court that he is
owner of the car or entitled to the possession, whereas in the complaint for PI,
the property to be attached by the
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plaintiff should not be the property belonging to the plaintiff. It should be a
property belonging to the defendant
financially able to do so and the court usually asks the petitioner. Are you wil
ling that your husband go to jail?
And invariably he does not him to go to jail. And the court that t
he provision on substantive law violates
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probably the constitutional provision on equal protection of laws. But in the ru
les of court on support pendente
lite, you will notice that the principle in section 20 rule 57, rule 57 is not f
ollowed at all.
We said earlier that the remedy in order to recover damages in a wrongful issuan
ce of attachment, PI, replevin
should be in the same case. It could not be held in an independent
or separate action for damages. But if you
read provision on support pendente lite, it is expressly provided that there cou
ld be an independent action for
the recovery of money that has been given as support in compliance w
ith the order of the court. So we do not
have to file a claim in the principal action, the one who gave support following
the order of the court for him to
give support can file a separate complaint for the recovery of the amount that i
s needed in compliance with the
order of the court.
Going back to the circular of the SC in marriage related cases, this is trial ca
n only be made by the family court.
If you were ask why the family court can order child or spousal sup
port without a hearing the side of the
parties, you will just there is no need for the family court to determine the ne
eds of the spouse, or the child, or
the financial ability of the defendant. Because it is in these family
related cases, one of the requirements is that
there must be inventory of properties submitted to the family court t
o the petitioner. So if the family court
analyzes that the property owned in common by the parties, the family
court can determine how much the
spouse is entitled to every month or how much given to the minors.
So there is also good reason why family
court is not required to conduct hearing on the application of spousal or child
support.
Also in respect to the provisional orders granted by the family court
in marriage related cases, although the
provisional orders are called by some other name, these provisional or
ders partake of the nature of the
injunction, an example is a protection order. A protection order in f
amily related cases is effectively a
prohibitory and mandatory injunction at the same time because in the
protection order, the family court
prohibits the respondents from performing an act. The family court can tell the
respondent that dont ever visit
your child in school, that is effectively a prohibitory injunction. It
could also be in form of mandatory
injunction, the court can tell the respondent do not enter the conjugal house, yo
u just remove the clothing and
dont ever show your face. Effectively the protection order in the marri
the duty of the court to declare the defendant in default, so there is default w
ithout the corresponding motion of
the plaintiff in Kalikasan cases, it becomes the duty of the court t
o issue an order declaring the defendant in
default, and thereafter receives evidence ex parte.
And in Kalikasan cases, while the courts totally used the state policy
which encourages the compromise
agreement of settling the civil action. If there is a compromise agre
ement based in a Kalikasan civil case, the
judgement is not called a judgement based upon compromise, the circula
r has another term that is a consent
decree. That is just a judgement based on a compromise. I suggest yo
u read the circulars, the procedure that
should be read.
You will also notice that the rules on evidence are not necessarily
followed in Kalikasan cases. Although the
action maybe a special proceeding, the quantum that usually apply could be near
substantial evidence. Which is
also the same principle in Amparo. If you read the circular, the qua
ntum of evidence is only substantial
evidence, same in quasi judicial proceeding although Amparo is a judicial procee
ding. So there is no problem if
the Supreme Court changes the quantum of evidence to be followed as
in Amparo. But there is something
irregular, if a quasi judicial body will adopt a rule that quasi jud
icial body must support his stand with
preponderance of evidence. That act of is void, the rule on quantum
of evidence is the turf of Supreme Court.
The administrative bodies cannot change the quantum of evidence.
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We start with 63: Declaratory relief and other Similar Remedies.
Rule 63 enumerates four SPECIAL CIVIL ACTIONS.
The first is DECLARAT
ORY RELIEF and OTHER
SIMILAR REMEDIES encompasses three special civil actions enumerated in
the Rules: 1. Reformation of
Instrument; 2.Quieting of Title and; 3. Consolidation of Title under 1
607 of the Civil Code. Although they are
contained in the same Rule, they are governed by different rules, by
different procedures. So the procedure in
declaratory relief is different from the procedure in the other simila
r relief. The requirements of declaratory
relief are not the requirements of other similar remedies.
With respect to DECLARATORY RELEIF, the obvious nature of declaratory relief wh
ich makes it a special civil
action is that the petition must be filed must be filed before a br
each or violation is committed. In other
words, if we are going to apply the principles governing ordinary civil actions,
petition for declaratory relief will
be dismissed outright; because at the time of the filing of the peti
tion, the petitioner does not have a cause of
action. There is no allegation in the petition for declaratory relief
to execute that judgment. The remedy of the interested party is to file a motion
for a rendition of a Clarificatory
Judgment.
In Declaratory Judgment, the Court will only tell the petitioner what
is rights are, what his duties are under a
certain will, deed or contract. Or in the case of a statute or ordinance, the Co
urt will tell the petitioner whether a
statute or ordinance is constitutional or unconstitutional. So after the Court h
as done its duty, there is more need
for the prevailing party to move for execution. We dont apply Rule 39 to a petiti
on for declaratory. So that is the
first nature of Declaratory Relief which makes it a special civil act
ion. So there is really no cause of action as
contemplated in ordinary civil action, where there is a right that has been viol
ated by the defendant.
The second procedural rule that we apply to declaratory relief, which
is not followed in other special civil
actions or ordinary civil action, is the authority of the Court not
to entertain the petition for declaratory relief.
The Court can outright tell the petitioner, I am not inclined to ent
ertain your petition. The Court can refuse to
declare the rights and duties of the petitioner or respondent under a
deed, will or contract on the ground for
instance that the judgment of the Court will not bind parties who ha
ve not been impleaded a petition for
declaratory relief, which shows that a declaratory relief is not in rem but pure
ly a petition in personam, it cannot
bind parties who have not been impleaded. Although, these parties who
have not been so impleaded may be
contracting parties of the contract, subject matter of the litigation.
What is the competent Court in Rule 63? If the petition is for decl
aratory relief, it is the Regional Trial Court
because a petition for declaratory relief is not one capable of pecun
iary estimation. But if we are going to look
for the competent court for other similar remedies, it is not always the RTC, we
have to take into account in the
provisions of BP 129. For instance, reformation of instruments, is tha
t cognizable solely by the RTC? Yes,
because reformation of instruments is not one capable of pecuniary estimation. W
hat is the competent court for
Quieting of Title? It is not necessarily the RTC. It is because Quie
ting of Title involved title to or possession of
real property and under the standard provided by BP 19, actions involving title
to or possession of real property
could be cognizable by the RTC or an inferior court depending on the
assessed value of that property. So,
quieting of title could be cognizable by an Inferior Court if the as
sessed value of the property is only P5000 or
P10000. We apply the standard provided in the provisions under BP 129.
The third special civil action is Consolidation of Title. The competent Court is
also decided by the assessed value
of the property involved, because consolidation of title always involve
s a real property. Using the standard
applied by the Court in Quieting of Title, we have to allege the assessed value
of the property in order to give to
the trial court jurisdiction over the case.
Why do we need to file a special action for Consolidation of Title?
Does not Consolidation of Title come a
matter of course if the period of redemption has expired and the redemption-er h
as failed to exercise his right of
property. But suddenly 1607, the Rules of Court require an action, a special civ
il action for the Consolidation of
Title although the factual antecedents are the same. There is a right
of redemption for a certain period, but the
right holder fails or does not exercise his right of redemption. Why
do we require the adverse party to go to
court in order to obtain from the court a decision directing the Register of De
ed to Consolidate the Title of the
buyer with right to redeem? The fact that is present in 1607 is tha
t right of redemption is what is called is
CONVNETIONAL REDEMPTION; but in Rule 39 and Foreclosure of Mortgage is LEGAL RED
EMPTION. It is
that classification of redemption into conventional which makes the dis
tinction under the Civil Code. In the
Civil Code, when there is a sale with right of redemption, that redemption is ca
lled Conventional Redemption.
It is not Legal Redemption. When the period expires, the period for Conventional
Redemption is also one year,
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the buyer of the property cannot go directly to the Registry of Deed
s although he can convince the Registry of
Property that the period has already expired, there is no need to go
to Court for the Registry of Deeds to
compute if the period has already expired, anybody can do that. So t
he buyer in Conventional Redemption
should be allowed to deal with the Registry of Deeds without requirin
g him to file
an action in Court. The
reason why we suddenly provide a different remedy in a Conventional r
edemption is because under the Civil
Code when a sale with a right to repurchase, is not a sale but an equitable mort
gage. The Civil Code assumes, a
disputable presumption, that the contract entered into is not a sale but an equi
table mortgage. So in so far as the
Civil Code is concerned, the seller is not a genuine seller but is
only a mortgagee. And the buyer is not a true
buyer, but is really a mortgagee, notwithstanding the designation as b
uyers and sellers in a Contract of Sale.
Also, the Register of Deeds has to observe this disputable presumption
that a dead of sale with right of
redemption is presumably an equitable mortgage. So the party need to
go to the Court to declare that his
Contract Sale, in so far as consolidation of title is concerned is a
genuine Contract of Sale. This is the special
feature with regard to consolidation of title under Artcile 1607 of the Civil Co
de, to give the buyer the chance to
present evidence to defeat that disputable presumption under the Civil Code. If
the plaintiff, who is the buyer In
that Sale, fails to defeat that disputable presumption, he can still obtain cons
olidation f title but he will be forced
to file another special civil action, this time Foreclosure of Mortgage. Hence,
if he is not able to obtain a decision
under Rule 63 in a Special Civil Action to consolidate an Action und
er 1607, because he is a mortgagee in an
equitable mortgage, he has the right to foreclose the mortgage. And the only mea
n to foreclose the mortgage is
to avail another Civil Action which is a foreclosure of a Real Estate Mortgage.
But the procedure is quite lengthy.
The Court is obligated to render three decisions.
NOTE: Although the Court can outright refuse to entertain a petition
for Declaratory relief, it cannot outright
refuse to entertain Reformation of Instrument; .Quieting of Title and; Consolida
tion of Title.