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The general rule under, Sec. 4.

Rule 7 is that,
pleading need not be under oath. This means that
a pleading need not be verified. A pleading will be
The parts of a pleading under Rule 7 are: the verified only when a verification is required by a
caption (Sec. 1), the text or the body (Sec. 2), the law or by a rule.
signature and address (Sec. 3), the verification
(Sec. 4), and the certification against forum A pleading is verified by an affidavit, which
shopping (Sec. 5). declares that:
a) the affiant has read the pleading, and
CAPTION b) the allegations therein are true and
correct to his personal knowledge or
The caption must set forth the name of the court, based on authentic records.
the title of the action, and the docket number if
assigned. The verification requirement is significant, as it is
intended to secure an assurance that the
The title of the action indicates the names of the allegations in a pleading are true and correct and
parties. They shall all be named in the original not the product of the imagination or a matter of
complaint or petition; but in subsequent speculation, and that the pleading is filed in good
pleadings, it shall be sufficient if the name of the faith. The absence of proper verification is cause
first party on each side be stated with an to treat the pleading as unsigned and dismissible.
appropriate indication when there are other
parties. Their respective participation in the case It is, however, been held that the absence of a
shall be indicated. verification or the non-compliance with the
verification requirement does not necessarily
SIGNATURE AND ADDRESS render the pleading defective. It is only a formal
and not a jurisdictional requirement. The
Every pleading must be signed by the party or requirement is a condition affecting only the form
counsel representing him, stating in either case of the pleading (Sarmeinto vs. Zaratan, 2007).
his address which should not be a post office box. The absence of verification may be corrected by
requiring an oath. The court may order the
The signature of counsel constitutes a certificate correction of the pleading or act on an unverified
by him that he has read the pleading; that to the pleading if the attending circumstances are such
best of his knowledge, information, and belief that strict compliance would not fully serve
there is good ground to support it; and that it is substantial justice, which after all, is the basic
not interposed for delay. aim for the rules of procedure (Robert
Development Corp. vs. Quitain, 315 SCRA 150).
An unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow CERTIFICATION AGAINST FORUM-SHOPPING
such deficiency to be remedied if it shall appear
that the same was due to mere inadvertence and  Needed in initiatory pleadings
not intended for delay. Counsel who deliberately
files an unsigned pleading, or signs a pleading in The certification against forum shopping is a
violation of the Rule, or alleges scandalous or sworn statement certifying to the following
indecent matter therein, or fails to promptly matters:
report to the court a change of his address, shall 1) That the party has NOT COMMENCED or
be subject to appropriate disciplinary action. filed any claim involving the same issues
in any court, tribunal, or quasi-judicial
In every pleading, counsel has to indicate his agency and, to the best of his knowledge,
professional tax receipt (PTR) and IBP receipt, the no such other action or claim is pending;
purpose of which is to see to it that he pays his 2) That if there is such other pending action
tax and membership due regularly. or claim, a complete statement of the
present STATUS thereof; and
VERIFICATION 3) That if he should therefore learn that the
same or similar action or claim has been
A verification of a pleading is an affirmation filed or is pending, he shall REPORT THAT
under oath by the party making the pleading that FACT within five (5) days therefrom to the
he is prepared to establish the truthfulness of the court wherein his aforesaid complaint or
facts which he has pleaded based on his own initiatory pleading has been filed.
personal knowledge.
Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be its counsel clearly constitutes wilful and
cause for the dismissal of the case without deliberate forum-shopping, the same shall
prejudice, unless otherwise provided, upon constitute direct contempt, and a cause for
motion and after hearing. administrative sanctions, as well as a ground for
the summary dismissal of the case with prejudice
The submission of a false certification or non- (Montes vs. CAMay 4, 2006)
compliance with any of the undertakings therein
shall constitute indirect contempt of court, It is the plaintiff or principal party who
without prejudice to the corresponding executes the certification under oath, and
administrative and criminal actions. If the acts of not the attorney. It must be signed by the party
the party or his counsel clearly constitute willful himself and cannot be signed by his counsels. As
and deliberate forum shopping, the same shall be a general and prevailing rule, a certification
ground for summary dismissal with prejudice and signed by counsel is a defective certification and
shall constitute direct contempt, as well as a is a valid cause for dismissal. This is the general
cause for administrative sanctions (Sec. 5, Rule and prevailing rule. A certification by counsel and
7). not by the principal party himself is no
certification at all. The reason for requiring that it
Possible Violations (as per Dean Riano): must be signed by the principal party himself is
1) Non-compliance with the undertaking that he has actual knowledge, or knows better
– dismissal without prejudice than anyone else, whether he has initiated similar
2) False Certification - indirect contempt, action/s in other courts, agencies or tribunals.
administrative and criminal sanction
3) Wilful and deliberate forum shopping This certification is not necessary when what is
– ground for summary dismissal with filed is a mere motion for extension, or in criminal
prejudice without motion and hearing; it cases and distinct causes of action.
has administrative but without criminal
 So, if the dismissal is without EXECUTING THE
prejudice, your remedy is VERIFICATION/CERTIFICATION ON NON-
certiorari; if with prejudice, the FORUM SHOPPING
remedy is appeal (Sec. 1(g),
Rule 41) A juridical entity, unlike a natural person, can
 The dismissal is not a subject of only perform physical acts through properly
appeal if the order of dismissal delegated individuals. The certification against
is without prejudice. forum shopping where the plaintiff or a principal
 The certification is mandatory party is a juridical entity like a corporation may
under Sec. 5, Rule 7, but not be executed by properly authorized persons. This
jurisdictional. person may be the lawyer of a corporation.

There is forum shopping when As long as he is duly authorized by the

a) as a result of an adverse opinion in one corporation and has personal knowledge of the
forum, a party seeks a favorable opinion, facts required to be disclosed in the certification
other than by appeal or certiorari in against forum shopping, the certification may be
another forum signed by the authorized lawyer.
b) a party institutes two or more suits in
different courts, either simultaneously or EFFECT OF THE SIGNATURE OF COUNSEL IN
successively, in order to ask the courts to A PLEADING
rule on the same or related causes and/or
to grant the same or substantially the
Counsel’s signature signifies that:
same reliefs on the supposition that one or
a) He has read the pleading;
the other court would make a favorable
b) That to the best of his knowledge,
disposition or increase a party‘s chances
information and belief there is a good
of obtaining a favorable decision or action
ground to support it; and
c) the elements of litis pendentia are present
c) That it is not interposed for delay.
or where a final judgment in one case will
amount to res judicata in another.
It is an act of malpractice, as the litigants trifle
with the courts and abuse their processes. It is Every pleading shall contain in a mathematical
improper conduct and degrades the and logical form, a plain, concise and direct
administration of justice. If the act of the party or statement of the ultimate facts on which the
party relies for his claim and defense, as the case
may be, containing the statement of mere An actionable document is a document relied
evidenciary facts (Sec. 1, Rule 8). upon by either the plaintiff or the defendant.

Whenever an actionable document is the basis of

a pleading, the rule specifically direct the pleader
a) set forth in the pleading the substance of
PLEADING CONDITION PRECEDENT the instrument or the document; or
b) to attach the original or the copy of the
Conditions precedents are matters which must be document to the pleading as an exhibit
complied with before a cause of action arises. and to be part of the pleading; or
When a claim is subject to a condition precedent, c) to set forth in the pleading said copy of
the compliance of the same must be alleged in the instrument or document (Sec. 7, Rule
the pleading. 8).

Failure to comply with a condition precedent is an This manner of pleading a document applies only
independent ground for a motion to dismiss: that to one which is the basis of action or a defense.
a condition precedent for filing the claim has not Hence, if the document does not have the
been complied (Sec. 1[j], Rule 16) (i.e. barangay character of an actionable document, as when it
conciliation, demand, etc) is merely evidentiary, it need not be pleaded
In pleading a judgment or decision of a domestic
or foreign court, judicial or quasi-judicial tribunal, There are three modes of specific denial which
or of a board or officer, it is sufficient to aver the are contemplated by the Rules, namely:
judgment or decision without need of alleging a) By specifying each material allegation of
matters showing the jurisdiction to render such the fact in the complaint, the truth of
decision. which the defendant does not admit, and
whenever practicable, setting forth the
PLEADING FRAUD, MISTAKE, MALICE, substance of the matter which he will rely
INTENT, KNOWLEDGE AND OTHER upon to support his denial;
CONDITION OF THE MIND JUDGMENTS b) By specifying so much of the averment in
OFFICIAL DOCUMENTS OR ACTS the complaint as is true and material and
denying only the remainder;
When making averments of FRAUD OR MISTAKE, c) By stating that the defendant is without
THE CIRCUMSTANCES CONSTITUTING SUCH knowledge or information sufficient to
FRAUD OR MISTAKE must be stated with form a belief as to the truth of a material
particularity (Sec. 5, Rule 8). It is not enough averment in the complaint, which has the
therefore, for the complaint to allege that he was effect of denial.
defrauded by the defendant. Under this provision,
the complaint must state with PARTICULARITY the The purpose of requiring the defendant to make a
fraudulent acts of the adverse party. These specific denial is to make him disclose the
particulars would necessarily include the time, matters alleged in the complaint which he
place and specific acts of fraud committed succinctly intends to disprove at the trial,
against him. together with the matter which he relied upon to
support the denial. The parties are compelled to
MALICE, INTENT, KNOWLEDGE OR OTHER lay their cards on the table.
CONDITIONS OF THE MIND of a person may be
fraud or mistake, they need not be stated with DENIALS
particularity. The rule is borne out of human
experience. It is difficult to state the particulars Material allegations, except unliquidated
constituting these matters. Hence, a general damages, not specifically denied are deemed
averment is sufficient. admitted (Sec. 11, Rule 8).

If the allegations are deemed admitted, there is

no more triable issue between the parties and if
PLEADING AN ACTIONABLE DOCUMENT the admissions appear in the answer of the
defendant, the plaintiff may file a motion for
judgment on the pleadings under Rule 34.
An admission in a pleading cannot be COUNTERCLAIM AND CROSS-CLAIM
controverted by the party making such admission
because the admission is conclusive as to him. All A compulsory counterclaim or a cross-claim not
proofs submitted by him contrary thereto or set up shall be barred (Sec. 2, Rule 9).
inconsistent therewith should be ignored whether
an objection is interposed by a party or not. Said DEFAULT
admission is a judicial admission, having been
made by a party in the course of the proceedings Default is a procedural concept that occurs when
in the same case, and does not require proof. the defending party fails to file his answer within
the reglementary period. It does not occur from
A party who desires to contradict his own judicial the failure of the defendant to attend either the
admission may do so only be either of two ways: pre-trial or the trial.
a) by showing that the admission was made
through palpable mistake; or WHEN A DECLARATION OF DEFAULT IS
b) that no such admission was made (Sec. 4, PROPER
Rule 129).
If the defending party fails to answer within the
The following are not deemed admitted by the time allowed therefor, the court shall, upon
failure to make a specific denial: motion of the claiming party with notice to the
a) The amount of unliquidated damages;
defending party, and proof of such failure,
b) Conclusions in a pleading which do not declare the defending party in default (Sec. 3,
have to be denied at all because only Rule 9).
ultimate facts need be alleged in a
pleading; In order for the court to declare the defendant in
c) Non-material allegations, because only default the following requisites must be present:
material allegations need be denied. 1. The court must have validly ACQUIRED
JURISDICTION over the person of the
WHEN A SPECIFIC DENIAL REQUIRES AN defendant either by service of summons
OATH or voluntary appearance;
2. The defendant FAILS TO ANSWER within
Specific denials which must be under oath to be the time allowed therefore;
sufficient are: 3. There must be a MOTION to declare the
a) A denial of an actionable document (Sec. defendant in default;
8, Rule 8); 4. There must be NOTICE to the defendant
b) A denial of allegations of usury in a by serving upon him a copy of such
complaint to recover usurious interest motion;
(Sec. 11, Rule 8). 5. There must be PROOF of such failure to
answer; and
EFFECT OF FAILURE TO PLEAD (RULE 9) 6. There must be a HEARING to declare the
defendant in default.

FAILURE TO PLEAD DEFENSES AND It is not correct to declare a party in default of the
OBJECTIONS defending party filed an answer

Defenses or objections not pleaded either in a EFFECT OF AN ORDER OF DEFAULT

motion to dismiss or in the answer are deemed
1) The party declared in default loses his
standing in court preventing him from taking
part in the trial;
a) Lack of jurisdiction over the subject
2) The party in default shall still be entitled to
notices of subsequent proceedings as well as
b) That there is another action pending
to receive notice that he was declared in
between the same parties for the same
cause (litis pendentia);
3) The declaration of default is not an admission
c) That the action is barred by the statute of
of the truth or validity of the plaintiff’s claims.
limitations (prescription);
d) Res judicata.
 In all these cases, the court shall RELIEF FROM AN ORDER OF DEFAULT
dismiss the claim.
REMEDY FROM THE NOTICE OF ORDER AND without a motion, or without having
BEFORE JUDGMENT: served with summons before the
 MOTION TO SET ASIDE ORDER OF expiration of the reglementary period to
DEFAULT, showing that answer, certiorari is available as a remedy.
a) the failure to answer was due to fraud,
accident, mistake, or excusable EFFECT OF A PARTIAL DEFAULT
negligence, and
b) the defendant has a meritorious When a pleading asserting a claim states a
defense—there must be an affidavit of common cause of action against several
merit (Sec. 3[b], Rule 9). defending parties, some of whom answer and the
others fail to do so, the court shall try the case
REMEDY AFTER JUDGMENT BUT BEFORE against all upon the answers thus filed and render
FINALITY: judgment upon the evidence presented (Sec.
 MOTION FOR NEW TRIAL (Rule 37); 33[c], Rule 9).
 APPEAL from the judgment as being Default is only against those defendant who
contrary to the evidence or the law (Rule didn’t file the answer but they can also benefit
41). from the answering defendants

 You can directly file an appeal without EXTENT OF RELIEF

passing MR and MNT; or you can MR/MNT
and if denied, then you can still file an
A judgment rendered against a party in default
appeal and have a new “fresh 15 day”
may not exceed the amount or be different from
period of appeal (Neypes doctrine)
that prayed for nor include unliquidated damages
which are not awarded (Sec. 3[c], Rule 9). In fact,
 This Neypes doctrine on “fresh period of
there can be no automatic grant of relief as the
appeal” applies to Rule 45 and Sec. 3 (e)
court has to weigh the evidence.
of Rule 122.
The court may render judgment before or after
 The purpose of the doctrine is to
the presentation of evidence. So the court may
standardize the period of appeal.
award unliquidated damages in case where the
court default defendant in default after the
 The appeal shall be taken within fifteen
presentation of the evidence.
(15) days from notice of the
judgment or final order appealed
from. Where a record on appeal is ACTIONS WHERE DEFAULT ARE NOT
required, the appellant shall file a notice of ALLOWED
appeal and a record on appeal within
thirty (30) days from notice of the 1) Annulment of marriage;
judgment or final order. 2) Declaration of nullity of marriage;
3) Legal separation
 So the period of appeal is 15 days from 4) In special civil actions of certiorari, prohibition
notice of judgment or 15 days from and mandamus where comment instead of an
final order appealed from. answer is required to be filed; and
5) Summary procedure.
 The SC ruled in one case that this “fresh
period of appeal” is applicable in criminal FILING AND SERVICE OF PLEADINGS (RULE
cases (Judith Yu vs. Judge Samson, 13)
Feb. 9, 2011)


 PETITION FOR RELIEF FROM JUDGMENT It is not simply the filing of the complaint or
(Rule 38); appropriate initiatory pleading but the payments
 ACTION FOR NULLITY OF JUDGMENT (Rule of the prescribed docket fee that vests a trial
47). court with JURISDICTION over the subject matter
or nature of the action. In connection with the
If the order of default is valid, payment of docket fees, the court requires that
Certiorari is not available. If the default all complaints, petitions, answers and similar
order was improvidently issued, that is, pleadings must specify the amount of damages
the defendant was declared in default, being prayed for both in the body of the pleading
and in prayer therein and said damages shall be The date of the mailing of motions, pleadings, or
considered in the assessment of the filing fees; any other papers or payments or deposits, as
otherwise such pleading shall not be accepted for shown by the post office stamp on the envelope
filing or shall be expunged from the record. or the registry receipt, shall be considered as the
date of their filing, payment, or deposit in court.
Any defect in the original pleading resulting in The envelope shall be attached to the record of
underpayment of the docket fee cannot be cured the case (Sec. 3, Rule 13)
by amendment, such as by the reduction of the
claim as, for all legal purposes, there is no THE FILING OF RESPONSIVE PLEADINGS
original complaint over which the court has SHALL HAVE THE FOLLOWING PERIODS
acquired jurisdiction.
1) Answer to the complaint
The rule on payment of docket fee has, in some  within 15 days after service of
instances, been subject to the rule on LIBERAL summons unless a different period is
INTERPRETATION. Thus, in a case, it was held that fixed by the court.
while the payment of the required docket fee is a
jurisdictional requirement, even its nonpayment 2) Answer of a defendant foreign private
at the time of filing does not automatically cause juridical entity
the dismissal of the case, as long as the fee is a. If it has a resident agent
paid within the applicable prescriptive or  within 15 days after service of
reglementary period. summons to such agent.
b. If it has no resident agent but it has an
Also, if the amount of docket fees is insufficient agent or officer in the Philippines
considering the amount of the claim, the party  within 15 days after service of
filing the case will be required to pay the summons to said agent or officer.
deficiency, but jurisdiction is not automatically c. If it has no resident agent, agent or officer
lost. the service of summons shall be made on
the proper government office which will
Within the period for taking an APPEAL, the then forward it by registered mail within
appellant shall pay to the clerk of court which 10 days to the corporation’s office
rendered the judgment or final order appealed  the answer must be filed within 30
from, the full amount of the appellate court days from the receipt of the summons
docket and other lawful fees (Sec. 4, Rule 41). by the home office.
Hence, the Rule now requires that appellate
docket and other lawful fees must be paid within 3) When the service is made by publication
the same period for taking an appeal. Such  within the time specified in the order
payment of docket fee within the prescribed granting leave to serve summons by
period is mandatory for the perfection of an publication which shall not be less than
appeal. 60m days after notice.

Without such payment, the appellate court does 4) When the defendant is a non-resident on
not acquire jurisdiction over the subject matter of whom extraterritorial service is made
the action and the decision sought to be  within 60 days from such service.
appealed from becomes final and executor.
Hence, nonpayment is a valid ground for the 5) Answer to an amended complaint
dismissal of an appeal. However, delay in the  where the amendment is a matter of
payment of the docket fees confers upon the right, within 15 days from the service
court a discretionary, not a mandatory power to of amended complaint. If the
dismiss an appeal. amendment is NOT a matter of right,
the answer must be filed within 10
FILING VERSUS SERVICE OF PLEADINGS days from notice of the order admitting
the same.
FILING is the act of presenting the pleading or  The same periods shall apply to
other paper to the clerk of court; answers filed on an amended
counterclaim , cross claim and third
SERVICE is the act of providing a party with a party complaint.
copy of the pleading or paper concerned (Sec. 2,
Rule 13). 6) Answer to counterclaim or cross-claim
 within 10 days from service
7) Answer to third-party complaint
 the period to answer shall be the same b) by leaving the papers in his office with his
as the periods given in answering a clerk or a person having charge thereof, or
complaint which shall either be 15, 30 c) If no person is found in the office, or his
or 60 days as the case may be. office is not known or he has no office,
then by leaving a copy of the papers at
8) Reply the party’s or counsel‘s residence, if
 within 10 days from the service of the known, with a person of sufficient age and
pleading responded to. discretion residing therein between eight
in the morning and six in the evening
9) Answer to supplemental complaint (Sec. 6, Rule 13).
 within 10 days from notice of the order
admitting the supplemental complaint SERVICE BY MAIL
unless a different period is fixed by the
court. The preferred service by mail is by registered
mail. It is deemed complete upon actual receipt
MANNER OF FILING by the addressee or after 5 days from the date he
received the first notice of the postmaster
By PERSONAL SERVICE or by REGISTERED MAIL. whichever is earlier. Service by ordinary mail may
The filing of pleadings, appearances, motions, be done only if no registry service is available in
notices, orders, judgments and all other papers the locality of either the sender or the addressee
shall be made by presenting the original copies (Sec. 7, Rule 13).
thereof, plainly indicated as such, personally to
the clerk of court or by sending them by It shall be done by depositing the copy in the post
registered mail (Registry Service). In the first office, in a sealed envelope, plainly addressed to
case, the clerk of court shall endorse on the the party or his counsel at his office, if known, or
pleading the date and hour of filing. In the second otherwise at his residence, if known, with postage
case, the date of the mailing of motions, fully prepaid, and with instructions to the
pleadings, or any other papers or payments or postmaster to return the mail to the sender after
deposits, as shown by the post office stamp on ten (10) days if not delivered.
the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or SUBSTITUTED SERVICE (FILING)
deposit in court. The envelope shall be attached
to the record of the case (Sec. 3, Rule 13). This mode is availed of only when there is failure
to effect service personally or by mail. This failure
MODES OF SERVICE occurs when the office and residence of the party
or counsel is unknown.
There are two modes of service of pleadings,
judgments, motions, notices, orders, judgments It is effected by delivering the copy to the clerk of
and other papers: court, with proof of failure of both personal
a) personally, or service and service by mail (Sec. 8, Rule 13).
b) by mail.
Substituted service is complete at the time of
However, if personal service and serviced by mail delivery of the copy to the clerk of court.
cannot be made, service shall be done by
Final orders or judgments shall be served either
It is the preferred mode of service. If another personally or by registered mail. When a party
mode of service is used other than personal summoned by publication has failed to appear in
service, the service must be accompanied by a the action, final orders or judgments against him
written explanation why the service of filing was shall be served upon him also by publication at
not done personally. Exempt from this the expense of the prevailing party (Sec. 9).
explanation are papers emanating from the court.
A violation of this explanation requirement may PRIORITIES IN MODES OF SERVICE AND
be a cause for the paper to be considered as not FILING
having been filed (Sec. 11, Rule 13).
 Personal service is the preferred mode of
Personal service is made by: service.
a) delivering a copy of the papers served
personally to the party or his counsel, or
 The preferred service by mail is by registered information of the date, place and manner
mail. of service (Sec. 13, Rule 13).
2) Proof of service by registered mail
 The following papers are required to be filed  Shall be shown by the affidavit of the
in court and served upon the parties affected: mailer showing compliance with Sec. 7,
(a) Judgments; (b) Resolutions; (c) Orders; (d) Rule 13 and the registry receipt issued by
Pleadings subsequent to the complaint; (e) the mailing office and present the
Written motions; (f) Notices; (g) Appearances; document returned or the card.
(h) Demands; (i) Offers of judgment; (j) 3) Proof of service of ordinary mail
Similar papers (Sec. 4, Rule 13).  Service shall be proved by affidavit of the
mailer showing compliance with Sec. 7,

Personal service is deemed complete upon the AMENDMENT (RULE 10)

actual delivery following the above procedure
(Sec. 10, Rule 13).
Service by ordinary mail is deemed complete
upon the expiration of ten (10) days after mailing, A plaintiff has the right to amend his complaint
unless the court otherwise provides. On the other once at any time before a responsive
hand, service by registered mail is complete upon pleading is served by the other party or in case
actual receipt by the addressee, or after five (5) of a reply to which there is no responsive
days from the date he received the first notice of pleading, at any time within ten (10) days after it
the postmaster, whichever is earlier (Sec. 8, Rule is served (Sec. 2, Rule 10).
Thus, before an answer is served on the plaintiff,
Substituted service is complete at the time of the latter may amend his complaint as a matter
delivery of the copy to the clerk of court. of right for whatever reasons as it may be,
even to correct the error of judgment. The
PROOF OF FILING AND SERVICE defendant may also amend his answer, also as a
matter of right, before a reply is served upon him.
PROOF OF FILING (Sec. 2 refers to an amendment made before the
The filing of a pleading or paper is proved by its trial court, not to amendments before the CA).
existence in the record. If it is not in the record
1) If filed PERSONALLY: The CA is vested with jurisdiction to admit or
 Proved by the written or stamped deny amended petitions filed before it. Hence,
acknowledgement of its filing by the even if no responsive pleading has yet been
clerk of court on a copy of the same; served, if the amendment is subsequent to a
or previous amendment made as a matter of right,
2) If filed by REGISTERED MAIL: the subsequent amendment must be with leave
 Proved by the registry receipt AND the of court.
affidavit of the person who did the
mailing with a full statement of: So you can amend the complaint to correct the
a) The date and place of error of jurisdiction as a matter of right (without
depositing the mail in the post leave of court) before a responsive pleading is
office in a sealed envelope served even though there is already a motion to
assessed to the court; dismiss filed for lack of jurisdiction. The court
b) With postage fully paid; and should deny the motion since such motion is not
c) With the instructions to the a responsive pleading. Note: The amendment as
postmaster to return the mail to a matter of right should be filed before the order
the sender after 10 days if to dismiss becomes final.
1) Proof of personal service shall consist of: Leave of court is required for substantial
 the written admission of the party served; amendment made after service of a responsive
or pleading (Sec. 3, Rule 10). The plaintiff, for
 The official return of the server; or example, cannot amend his complaint by
 The affidavit of the party serving (in case changing his cause of action or adding a new one
of refusal to receive), containing full without leave of court.
After a responsive pleading is filed, an amended pleading takes the place of the original
amendment to the complaint may be substantial pleading. A supplemental pleading exists side
and will correspondingly require a substantial with the original; it does not replace that which it
alteration in the defenses of the adverse party. supplements it does not supersede the original
The amendment of the complaint is not only but assumes that the original pleading remain as
unfair to the defendant but will cause the issues to be tried in the action. A
unnecessary delay in the proceedings. Leave of supplemental pleading supplies the deficiencies
court is thus, required. in aid of an original pleading, not to entirely
substitute the latter.
Where no responsive pleading has yet been
served, no defenses would be altered. The EFFECT OF AMENDED PLEADING
amendment of the pleading will not then require
leave of court.  An amended pleading supersedes the original
one which it amends (Sec. 8, Rule 10).
FORMAL AMENDMENT  The original pleading loses its status as a
pleading, is deemed withdrawn and
A defect in the designation of the parties and disappears from the record. It has been held
other clearly clerical or typographical errors may that the original complaint is deemed
be summarily corrected by the court at any superseded and abandoned by the
stage of the action, at its initiative or on motion, amendatory complaint only if the latter
provided no prejudice is caused thereby to the introduces a new or different cause of action.
adverse party (Sec. 4, Rule 10).  The defenses in the original pleadings not
reproduced in the amended pleadings are
AUTHORIZE PRESENTATION OF EVIDENCE  Admissions in the superseded pleading can
still be received in evidence against the
When issues not raised by the pleadings are tried pleader.
with the express or implied consent of the
parties, they shall be treated in all respects as if SUMMONS (Rule 14)
they had been raised in the pleadings. Such
amendment of the pleadings as may be
necessary to cause them to conform to the  Summons is a writ or process issued and
evidence and to raise these issues may be made served upon the defendant in a civil action for
upon motion of any party at any time, even after the purpose of securing his appearance
judgment; but failure to amend does not affect therein.
the result of the trial of these issues.  The purpose of summons is to comply with
the constitutional rights on due process
If evidence is objected to at the trial on the  The service of summons enables the court to
ground that it is not within the issues made by acquire jurisdiction over the person of the
the pleadings, the court may allow the pleadings defendant. If there is no service of summons,
to be amended and shall do so with liberality if any judgment rendered or proceedings had in
the presentation of the merits of the action and a case are null and void, except in case of
the ends of substantial justice will be subserved voluntary appearance. The law requiring the
thereby. The court may grant a continuance to manner of service of summons is
enable the amendment to be made (Sec. 5, Rule jurisdictional.
10).  When the defendant is a corporation,
partnership or association organized under
DIFFERENT FROM SUPPLEMENTAL the laws of the Philippines with a juridical
PLEADINGS personality, service may be made on the
president, managing partner, general
A supplemental pleading is one which sets forth manager, corporate secretary, treasurer, or
transactions, occurrences, or events which have in-house counsel (Sec 11).
happened since the date of the pleading sought  If a party dies and there is substitute, there is
to be supplemented. The filing of supplemental no need for summons but only an order for
pleadings requires leave of court. The court may him tom appear.
allow the pleading only upon such terms as are
just. This leave is sought by the filing of a motion NATURE AND PURPOSE OF SUMMONS IN
with notice to all parties (Sec. 6, Rule 10). RELATION TO ACTIONS IN PERSONAM,
A supplemental pleading does not extinguish the
existence of the original pleading, while an
In an action in personam, the purpose of If the defendant cannot be served within a
summons is not only to notify the defendant of reasonable time, service may be effected:
the action against him but also to acquire 1) By leaving copies of the summons at the
jurisdiction over his person. The filing of the defendant’s dwelling house or residence
complaint does not enable the courts to acquire with some person of suitable age and
jurisdiction over the person of the defendant. By discretion then residing therein; or
the filing of the complaint and the payment of the 2) By leaving copies at defendant’s office or
required filing and docket fees, the court acquires regular place of business with some
jurisdiction only over the person of the plaintiff, competent person in charge thereof (Sec.
not over the person of the defendant. Acquisition 7).
of jurisdiction over the latter is accomplished by a
valid service of summons upon him. Service of The following facts must first be shown for the
summons logically follows the filing of the service to be valid:
complaint. Note further that the filing of the 1) The impossibility of the personal service
complaint tolls the running of the prescriptive within a reasonable time
period of the cause of action in accordance with 2) The effort exerted to locate the person to
Article 1155 of the Civil Code. be served
3) Service upon a person of sufficient age
In an action in rem or quasi in rem, and discretion residing in the same place
jurisdiction over the defendant is not required or some competent person in charge of his
and the court acquires jurisdiction over an action office or regular place of business
as long as it acquires jurisdiction over the res. 4) There should be at least 3 attempts in 2
The purpose of summons in these actions is not days.
the acquisition of jurisdiction over the defendant
but mainly to satisfy the constitutional It may be resorted to if there are justifiable
requirement of due process. causes, where the defendant cannot be served
within a REASONABLE TIME (for plaintiff = 7 days;
VOLUNTARY APPEARANCE sheriff = 15 – 30 days). An example is when the
defendant is in hiding and resorted to it
The defendant's voluntary appearance in the intentionally to avoid service of summons, or
action shall be equivalent to service of summons. when the defendant refuses without justifiable
The inclusion in a motion to dismiss of other reason to receive the summons.
grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a In substituted service of summons, actual receipt
voluntary appearance (Sec. 20, Rule 14). of the summons by the defendant through the
person served must be shown. It further requires
Jurisdiction over the defendant is acquired by: that where there is substituted service, there
a) Valid service of summons; or should be a report indicating that the person who
b) By his voluntary appearance or received the summons in defendant’s behalf was
submission to the jurisdiction of the court. one with whom petitioner had a relation of
confidence ensuring that the latter would receive
The defendant’s voluntary appearance in the or would be notified of the summons issued in his
action shall be equivalent to service of summons. name.
Lack of jurisdiction over one’s person maybe
invoked in a motion to dismiss alleging such Substituted service is not allowed in service of
ground. If no motion to dismiss is filed, it may be summons on domestic corporations.
raised as an affirmative defense in the answer.
The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the As a rule, summons by publication is available
person of the defendant shall not be deemed a only in actions in rem or quasi in rem. It is not
voluntary appearance. available as a means of acquiring jurisdiction over
the person of the defendant in an action in

It shall be served by HANDLING a copy to the Against a resident, the recognized mode of
defendant in person, or if he refuses it, by service is service in person on the defendant
TENDERING it to him (Sec. 6, Rule 14). under Sec. 6 Rule 14. In a case where the
defendant cannot be served within a reasonable
SUBSTITUTED SERVICE (SUMMONS) time, substituted service will apply (Sec. 7, Rule
14), but no summons by publication which is
permissible however, under the conditions set 2) Extraterritorial service (Rule 14,
forth in Sec. 14, Rule 14. Sec. 16 and 15); action need not be
in rem or quasi in rem
Against a non-resident, jurisdiction is acquired
over the defendant by service upon his person (2) Non-resident
while said defendant is within the Philippines. As 1. Present in the Philippines
once held, when the defendant is a nonresident, a) Personal service (Sec. 6, Rule 14)
personal service of summons in the state is b) Substituted service (Sec. 7, Rule
essential to the acquisition of jurisdiction over 14)
him. This is in fact the only way of acquiring 2. Absent from the Philippines
jurisdiction over his person if he does not a) Action in rem or quasi in rem – only
voluntarily appear in the action. Summons by Extraterritorial service (Rule 14,
publication against a nonresident in an action in Sec. 15)
personam is not a proper mode of service. b) Action in personam, and judgment
cannot be secured by attachment
Publication is notice to the whole world that the (e.g. action for injunction)
proceeding has for its object to bar indefinitely all 1) Wait for the defendant to
who might be minded to make an objection of come to the Philippines and
any sort against the right sought to be to serve summons then
established. It is the publication of such notice 2) Wait the defendant to
that brings the whole world as a party in the case voluntarily appear in court
and vests the court with jurisdiction to hear and (Rule 14, Sec. 20)
decide it. 3) Plaintiff cannot resort to
extraterritorial service of
Where the defendant is designated as unknown,
or whenever his whereabouts are unknown and Service of summons upon a resident of the
cannot be ascertained despite a diligent inquiry, Philippines who is temporarily out of the country,
service may, with prior leave of court, be effected may, by leave of court be effected out of the
upon the defendant, by publication in a Philippines as under the rules on extraterritorial
newspaper of general circulation. The place and service in Sec. 15, Rule 14 by any of the following
the frequency of the publication is a matter for modes:
the court to determine (Sec. 14, Rule 14). 1) by personal service as in Sec. 6,
2) by publication in a news paper of general
The rule does not distinguish whether the action circulation together with a registered
is in personam, in rem or quasi in rem. The tenor mailing of a copy of the summons and the
of the rule authorizes summons by publication order of the court to the last known
whatever the action may be as long as the address of the defendant, or
identity of the defendant is unknown or his 3) by any manner the court may deem
whereabouts are unknown. sufficient under Sec. 16.

RULES ON SUMMONS ON DEFENDANT Like in the case of an unknown defendant or one

whose whereabouts are unknown, the rule
(1) Resident affecting residents who are temporarily out of the
(a) Present in the Philippines Philippines applies in any action. Note also, that
1) Personal service (Rule 14, Sec. 6) summons by publication may be effected against
2) Substituted service (Rule 14, Sec. the defendant.
3) Publication, but only if The defendant may however, also be served by
a) his identity or whereabouts is substituted service. This is because even if he is
unknown (Rule 14, Sec. 14); abroad, he has a residence in the Philippines or a
and place of business and surely, because of his
b) the action is in rem or quasi in absence, he cannot be served in person within a
rem reasonable time.
(b) Absent from the Philippines
1) Substituted service (Rule 14, Sec. EXTRA-TERRITORIAL SERVICE, WHEN
Under Sec. 15, Rule 14, extraterritorial service of
summons is proper only in four (4) instances When the service has been completed, the server
namely: shall, within five (5) days therefrom, serve a copy
1) When the action affects the personal of the return, personally or by registered mail, to
status of the plaintiffs; the plaintiff‘s counsel, and shall return the
2) When the action relates to, or the subject summons to the clerk who issued it, accompanied
of which is, property within the Philippines, by proof of service (Sec. 4, Rule 14).
in which the defendant has or claims a lien
or interest, actual or contingent; The proof of service of summons shall be made in
3) When the relief demanded in such action writing by the server and shall set forth the
consists, wholly or in part, in excluding the manner, place and date of service; shall specify
defendant from any interest in property any papers which have been served with the
located in the Philippines; and process and the name of the person who received
4) When the defendant non-resident’s the same; and shall be sworn to when made by a
property has been attached within the person other than a sheriff or his deputy (Sec.
Philippines. 18).

Extraterritorial service of summons applies when If the service has been made by publication,
the following requisites concur: service may be proved by the affidavit of the
1) The defendant is nonresident; printer, his foreman or principal clerk, or of the
2) He is not found in the Philippines; and editor, business or advertising manager, to which
3) The action against him is either in rem or affidavit a copy of the publication shall be
quasi in rem. attached and by an affidavit showing the deposit
of a copy of the summons and order for
If the action is in personam, this mode of service publication in the post office, postage prepaid,
will not be available. There is no extraterritorial directed to the defendant by registered mail to
service of summons in an action in personam. his last known address (Sec. 19).
Hence, extraterritorial service upon a nonresident
in an action for injunction which is in personam is
MOTIONS (Rule 15)
not proper (Banco Do Brasil vs. CA, 333 SCRA
When the action is in personam, jurisdiction over MOTION
the person of the defendant is necessary for the
court to validly try and decide the case. However, A motion is an application for relief other than by
when the defendant is a nonresident, personal a pleading (Sec. 1, Rule 15).
service of summons in the state is essential to
the acquisition of jurisdiction over him. MOTIONS VERSUS PLEADINGS

SERVICE UPON PRISONERS AND MINORS A pleading is a written statement of the

respective claims and defenses of the parties
On a minor. Service shall be made on him submitted to the court for appropriate judgment
personally and on his legal guardian if he has (Sec. 1, Rule 6). It may be in the form of a
one, or if none, upon his guardian ad litem whose complaint, counterclaim, cross-claim, third-party
appointment shall be applied for by the plaintiff, complaint, or complaint-in-intervention, answer
or upon a person exercising parental authority or reply (Sec. 2, Rule 6).
over him, but the court may order that service
made on a minor of 15 or more years of age shall A motion on the other hand is an application for
be sufficient (Sec. 10); relief other than a pleading (Sec. 1, Rule 15).

On prisoners. It shall be made upon him A motion is not a pleading, even when reduced to
(prisoner) by serving on the officer ( becomes the writing; it relates generally to procedural matters,
deputy sheriff) having the management of the jail unlike pleadings which generally states
or institution who is deemed deputized as a substantial questions. Moreover, a motion is not
special sheriff for said purpose (Sec. 9). an independent remedy, and thus cannot replace
an action to enforce a legal right.
If served by the sheriff, his deputy, or other
proper court officer, there is no need to be sworn CONTENTS AND FORM OF MOTIONS
but this is needed if served by other persons.
A motion shall state the order sought to be
PROOF OF SERVICE obtained, and the grounds which it is based, and
if necessary shall be accompanied by supporting Under the omnibus motion rule, a motion
affidavits and other papers (Sec. 3). attacking a pleading like a motion to dismiss shall
include all grounds then available and all
All motions must be in writing except those made objections not so included shall be deemed
in open court or in the course of a hearing or trial waived. It can no longer be invoked as affirmative
(Sec. 2). defense in the answer which the movant may file
following the denial of his motion to dismiss. The
NOTICE OF HEARING AND HEARING OF defense of lack of jurisdiction over the subject
MOTIONS matter is however, a defense not barred by the
failure to invoke the same in a motion to dismiss
Except for motions which the court may act upon already filed.
without prejudicing the rights of the adverse
party, every written motion shall be set for LITIGATED AND EX PARTE MOTIONS
hearing by the applicant.
A litigated motion is one which requires the
The motion which contains the notice of hearing parties to be heard before a ruling on the motion
shall be served as to ensure its receipt by the is made by the court. Sec. 4 establishes the
other party at least three (3) days before the date general rule that every written motion is deemed
of hearing, unless the court for good cause sets a litigated motion. A motion to dismiss (Rule 16),
the hearing on shorter notice. It shall be a motion for judgment for the pleadings (Rule
addressed to all parties concerned, and shall 34), and a summary judgment (Rule 35), are
specify the time and date of the hearing which litigated motions.
must not be later than ten (10) days after the
filing of the motion (Sec. 4, Rule 15). An ex parte motion is one which does not
require that the parties be heard, and which the
OMNIBUS MOTION RULE court may act upon without prejudicing the rights
of the other party. This kind of motion is not
The rule is a procedural principle which requires covered by the hearing requirement of the Rules
that every motion that attacks a pleading, (Sec. 2). An example of an ex parte motion is that
judgment, order or proceeding shall include all one filed by the plaintiff pursuant to Sec. 1, Rule
grounds then available, and all objections not so 18, in which he moves promptly that the case be
included shall be deemed waived (Sec. 8). set for pre-trial. A motion for extension of time is
an ex parte motion made to the court in behalf of
Since the rule is subject to the provisions of Sec. one or the other of the parties to the action, in
1, Rule 9, the objections mentioned therein are the absence and usually without the knowledge
not deemed waived even if not included in the of the other party or parties. Ex parte motions are
motion. These objections are: frequently permissible in procedural matters, and
a) that the court has no jurisdiction over the also in situations and under circumstances of
subject matter, emergency; and an exception to the rule
b) that there is another action pending requiring notice is sometimes made where notice
between the same parties for the same or the resulting delay might tend to defeat the
cause (litis pendencia), objective of the motion.
c) that the action is barred by a prior
judgment (res judicata), and Motion of course – a motion for a certain kind of
d) that the action is barred by the statute of relief or remedy to which the movant is entitled
limitations (prescription) (Sec. 1, par. 2, as a matter of right, and not as a matter of
Rule 9). discretion on the part of the court. Moreover, the
allegations contained in such a motion do not
Even if a motion to dismiss was filed and the have to be investigated or verified. An example
issue of jurisdiction was not raised therein, a would be a motion filed out of time, because this
party may, when he files an answer, raise the motion may be disposed of the court on its own
lack of jurisdiction as an affirmative defense initiative. Another example would be a motion to
because this defense is not barred under the sell certain property after the period given by the
omnibus motion rule. court to the debtor to pay has elapsed, and such
previous order had specified that the property be
A motion to dismiss is a typical example of a sold in case of default.
motion subject to omnibus motion rule, since a
motion to dismiss attacks a complaint which is a Special motion – the opposite of a motion of
pleading. course, here the discretion of the court is
involved; usually an investigation of the facts
alleged is required.
In case of a reply to which no responsive pleading
PRO-FORMA MOTIONS is provided for by the Rules, the motion for bill of
particulars must be filed within ten (10) days of
The Court has consistently held that a motion the service of said reply (Sec. 1, Rule 12).
which does not meet the requirements of
Sections 4 and 5 of Rule 15 on hearing and notice ACTIONS OF THE COURT
of the hearing is a mere scrap of paper, which the
clerk of court has no right to receive and the trial Upon receipt of the motion which the clerk of
court has no authority to act upon and one which court must immediately bring to the attention of
will be treated as a motion intended to delay the the court, the latter has three possible options,
proceedings. Service of a copy of a motion namely:
containing a notice of the time and the place of 1) to deny the motion outright,
hearing of that motion is a mandatory 2) to grant the motion outright or
requirement, and the failure of movants to 3) to hold a hearing on the motion.
comply with these requirements renders their
motions fatally defective. COMPLIANCE WITH THE ORDER AND
MOTIONS FOR BILL OF PARTICULARS If a motion for bill of particulars is granted, the
(RULE 12) court shall order the pleader to submit a bill of
particulars to the pleading to which the motion is
PURPOSE AND WHEN APPLIED FOR directed. The compliance shall be effected within
ten (10) days from notice of the order, or within
The purpose of the motion is to seek an order the period fixed by the court (Sec. 3, Rule 12).
from the court directing the pleader to submit a
bill of particulars which avers matters with In complying with the order, the pleader may file
sufficient definitiveness or particularity to enable the bill of particulars either in a separate pleading
the movant to prepare his responsive pleading or in the form or an amended pleading (Sec. 3,
(Sec. 1, Rule 12), not to enable the movant to Rule 12). The bill of particulars submitted
prepare for trial. The latter purpose is the becomes part of the pleading for which it is
ultimate objective of the discovery procedures intended (Sec. 6, Rule 12).
from Rules 23 to 29 and ever of a pre-trial under
Rule 18. If the order to file a bill of particulars is not
obeyed, or in case of insufficient compliance
In other words, the function of a bill of particulars therewith, the court may:
is to clarify the allegations in the pleading so an a) order the striking out of the pleading; or
adverse party may be informed with certainty of b) the portions thereof to which the order
the exact character of a cause of action or a was directed; or
defense. Without the clarifications sought by the c) make such other order as it deems just
motion, the movant may be deprived of the (Sec. 4).
opportunity to submit an intelligent responsive
This is to avert the danger where the opposing
party will find difficulty in squarely meeting the A motion for bill of particulars is not a pleading
issues raised against him and plead the hence, not a responsive pleading. Whether or not
corresponding defenses which if not timely raised his motion is granted, the movant may file his
in the answer will be deemed waived. responsive pleading. When he files a motion for
BOP, the period to file the responsive pleading is
A motion for a bill of particulars is to be filed stayed or interrupted.
before, not after responding to a pleading (Sec. 1,
Rule 12). Thus, where the motion for bill of After service of the bill of particulars upon him or
particulars is directed to a complaint, the motion after notice of the denial of his motion, he may
should be filed within fifteen (15) days after file his responsive pleading within the period to
service of summons. If the motion is directed to a which he is entitled to at the time the motion for
counterclaim, then the same must be filed within bill of particulars is filed. If he has still eleven (11)
ten (10) days from service of the counterclaim days to file his pleading at the time the motion
which is the period provided for by Sec. 4, Rule for BOP is filed, then he has the same number of
11 to answer a counterclaim. days to file his responsive pleading from the
service upon him of the BOP.
If the motion is denied, then he has the same j) A condition precedent for filing the action
number of days within which to file his pleading has not been complied with.
counted from his receipt of the notice of the order
denying his motion. If the movant has less than The language of the rule, particularly on the
five (5) days to file his responsive pleading after relation of the words “abandoned” and “otherwise
service of the bill of particulars or after notice of extinguished” to the phrase “claim or demand
the denial of his motion, he nevertheless has five deemed set forth in the plaintiff’s pleading” is
(5) days within which to file his responsive broad enough to include within its ambit the
pleading. (Sec.5, Rule 12). defense of bar by laches.

A seasonable motion for a bill of particulars However, when a party moves for the dismissal of
interrupts the period within which to answer. After the complaint based on laches, the trial court
service of the bill of particulars or of a more must set a hearing on the motion where the
definite pleading, or after notice of denial of his parties shall submit not only their arguments on
motion, the moving party shall have the same the questions of law but also their evidence on
time to serve his responsive pleading, if any is the questions of fact involved. Thus, being factual
permitted by the rules, as that to which he was in nature, the elements of laches must be proved
entitled at the time of serving his motion, but no or disproved through the presentation of
less than five (5) days in any event. evidence by the parties.

After the hearing, the court may dismiss the
 A motion to dismiss is not a pleading. It is action or claim, deny the motion, or order the
merely a motion. It is an application for relief amendment of the pleading. The court shall not
other than by a pleading (Sec. 1, Rule 15). defer the resolution of the motion for the reason
 The pleadings allowed under the Rules are: that the ground relied upon is not indubitable. In
a) complaint, (b) answer, (c) every case, the resolution shall state clearly and
counterclaim, (d) cross-claim, (e) third distinctly the reasons therefor (Sec. 3).
(fourth, etc.) –party complaint, (f)
complaint in intervention (Sec. 2, Rule REMEDIES OF PLAINTIFF WHEN THE
6), and reply (Sec. 10, Rule 6). A COMPLAINT IS DISMISSED
motion is not one of those specifically
designated as a pleading. Where the dismissal is final but is without
 Failure to state a cause of action prejudice (interlocutory), the plaintiff may simply
re-file the action depending upon the ground for
GROUNDS the dismissal of the action. For instance, if the
ground for dismissal was anchored on improper
Under Sec. 1, Rule 16, a motion to dismiss may venue, the plaintiff may file the action in the
be filed on any of the following grounds: proper venue.
a) Lack of jurisdiction over the person of the
defending party; Where the dismissal is final and it bars the re-
b) Lack of jurisdiction over the subject matter filing of the case, he may appeal from the order
of the claim; of dismissal where the ground relied upon is one
c) The venue is improperly laid; which bars the refiling of the complaint like res
d) The plaintiff has no legal capacity to sue; judicata, prescription, extinguishment of the
e) There is another action pending between obligation or violation of the statute of frauds
the same parties and for the same cause (Sec. 5, Rule 16).
(lis pendens);
f) The cause of action is barred by a prior Since the complaint cannot be refiled, the
judgment (res judicata) or by the statute dismissal is with prejudice. Under Sec. 1[h], Rule
of limitations (prescription); 41, it is an order dismissing an action without
g) The pleading asserting the claim prejudice which cannot be appealed from.
states no cause of action; Conversely, where the dismissal is with prejudice,
h) The claim or demand has been paid, an appeal from the order of dismissal is not
waived, abandoned, or otherwise precluded.
i) The claim on which the action is founded Where the dismissal is without prejudice and the
is unenforceable under the provisions of court gravely abused its discretion in doing so,
the statute of frauds; and the plaintiff may resort to certiorari (Sec. 1, Rule
a) The cause of action is barred by a
MOTION IS DENIED b) The cause of action is barred by
the statute of limitations
1) File answer within the balance of the c) The claim or demand has been
period prescribed by Rule 11 to which he was paid, waived, abandoned or
entitled at the time of serving his motion, but otherwise extinguished
not less than five (5) days in any event (Sec. d) The claim on which the action is
4, Rule 16). founded is unenforceable under the
 As a rule, the filing of an answer, going provisions of the statute of frauds.
through the usual trial process, and
the filing of a timely appeal from an 4) The denial of a motion to dismiss is
adverse judgment are the proper interlocutory, hence, the remedy is to file an
remedies against a denial of a motion answer, proceed to trial, and await judgment
to dismiss. before interposing an appeal.
 The filing of an appeal from an order  The denial should be raised as an error
denying a motion to dismiss is not the of the trial court on appeal.
remedy prescribed by existing rules.
 The order of denial, being interlocutory EFFECT OF DISMISSAL OF COMPLAINT ON
is not appealable (Sec 1[c], Rule 4). CERTAIN GROUNDS

2) Civil action under Rule 65 (Certiorari) When the complaint is dismissed on the grounds
 In order to justify the grant of the of:
extraordinary remedy of certiorari, the a)prior judgment
must be a showing that the denial of b)by the statute of limitations
the motion was tainted with grave c)payment, waiver, abandonment or
abuse of discretion amounting to lack extinguishment of the claim
of jurisdiction. Without such showing, d) unenforceability of the cause of action
Rule 65 cannot be availed of as a under the statute of frauds
remedy.  the dismissal shall bar the refiling of
 The general rule is that the denial of a the same action or claim, but this is
motion to dismiss cannot be without prejudice to the right of the
questioned in a special civil action for other party to appeal from the order of
certiorari which is a remedy designed dismissal because such dismissal is a
to correct errors of jurisdiction and not final order, not merely interlocutory
errors of judgment. Neither can a (Sec. 5).
denial of a motion to dismiss be the
subject of an appeal unless and until a WHEN GROUNDS PLEADED AS
final judgment or order is rendered. AFFIRMATIVE DEFENSES
 A writ of certiorari is not intended to
correct every controversial If no motion to dismiss has been filed, any of the
interlocutory ruling. It is resorted to grounds provided for dismissal may be pleaded
only to correct a grave abuse of as an affirmative defense in the answer and, in
discretion or a whimsical exercise of the discretion of the court, a preliminary hearing
judgment equivalent to lack of may be had thereon as if a motion to dismiss has
jurisdiction. Its function is limited to been filed (Sec. 6, Rule 16).
keeping an inferior court within its
jurisdiction and to relieve persons from Implied under Sec. 6, Rule 16 is that the grounds
arbitrary acts, acts which courts or for a motion to dismiss are not waived even if the
judges have no power or authority in defendant fails to file a motion to dismiss
law to perform. It is not designed to because he may still avail of the defenses under
correct erroneous findings and Rule 16 as affirmative defenses in his answer.
conclusions made by the courts.
As a rule, a preliminary hearing is not authorized
3) File an appeal when a motion to dismiss has been filed. An
 This remedy is appropriate in the exception previously carved out as if the trial
instances where the defendant is barred court had not categorically resolved the motion to
from refiling the same action of claim if dismiss. Another exception would be justified
the dismissal is based on the following under the liberal construction rule as when it is
grounds: evident that the action is barred by res judicata. A
strict application of Sec. 6 would accordingly lead
to absurdity when an obviously barred complaint action similar to a motion to dismiss, which the
continues to be litigated. The denial of a motion court or tribunal may either grant or deny.
to dismiss does not preclude any future reliance
on the grounds relied thereupon. Distinctions:
a) A motion to dismiss should be filed within
BAR BY DISMISSAL the time for but prior to the filing of the
answer of the defending party to the
Res judicata as a ground for dismissal is based on pleading asserting the claim against him;
two grounds, namely: a demurrer to evidence may be filed only
1) public policy and necessity, which makes after the plaintiff has completed the
it to the interest of the State that there presentation of his evidence.
should be an end to litigation (republicae b) A motion to dismiss is anchored on
ut sit litium); and preliminary objections; a demurrer is
2) the hardship on the individual of being anchored on one ground—insufficiency of
vexed twice for the same cause (nemo evidence; and
debet bis vexari et eadem causa). c) If a motion to dismiss is denied, the
defendant may file his responsive pleading
Accordingly, courts will simply refuse to reopen (answer) or else he may declared in
what has been decided. They will not allow the default and if granted, plaintiff may appeal
same parties or their privies to litigate anew a or if subsequent case is not barred, he
question once it has been considered and may re-file the case.
decided with finality. Litigations must end and d) In a demurrer, if denied, the defendant
terminate sometime and somewhere. The may present his evidence and if granted,
effective and efficient administration of justice plaintiff appeals and the order of dismissal
requires that once a judgment has become final, is reversed, the defendant loses his right
the prevailing party should not be deprived of the to present evidence.
fruits of the verdict by subsequent suits on the
same issues filed by the same parties. Rule 17 is based on allegations; while Rule 33 is
based on evidence
Res judicata comprehends two distinct
concepts: DISMISSAL OF ACTIONS (Rule 17)
a) bar by a former judgment
 bars the prosecution of a second
action upon the same claim, demand 1) DISMISSAL UPON NOTICE BY PLAINTIFF
or cause of action.
b) conclusiveness of judgment  At any time before the service of an
 a fact or question which was in issue in answer or the service of a motion for
a former suit and was there judicially summary judgment, a complaint may be
passed upon and determined by a dismissed by the plaintiff by filing a notice
court of competent jurisdiction, is of dismissal. Upon the filing of the notice
conclusively settled by the judgment of dismissal, the court shall issue an order
therein as far as the parties to that confirming the dismissal (Sec. 1, Rule 17).
action and persons in privity with them This dismissal shall be without prejudice to
are concerned and cannot be again the re-filing of the complaint, except
litigated in any future action between when:
such parties or their privies, in the 1) The notice of dismissal provides
same court or any other court of that the dismissal is with prejudice;
concurrent jurisdiction on either the or
same or different cause of action, 2) The plaintiff has previously
while the judgment remains dismissed the same case in a court
unreversed by proper authority. of competent jurisdiction.

DISTINGUISHED FROM DEMURRER TO  It is not the order confirming the dismissal

EVIDENCE (RULE 33) which operates to dismiss the complaint.
As the name of the order implies, said
Demurrer to evidence is a motion to dismiss filed order merely confirms a dismissal already
by the defendant after the plaintiff had rested his effected by the filing of the notice of
case on the ground of insufficiency of evidence. It dismissal. The court does not have to
may be filed after the plaintiff has completed the approve the dismissal because it has no
presentation of his evidence. It is an aid or discretion on the matter. Before an answer
instrument for the expeditious termination of an or a motion for summary judgment has
been served upon the plaintiff, the it is a compulsory or a permissive counterclaim
dismissal by the plaintiff by the filing of because the rule makes no distinction. The
the notice is a matter of right. The defendant, if he so desires may prosecute his
dismissal occurs as of the date of the counterclaim either in a separate action or in the
notice is filed by the plaintiff and not the same action. Should he choose to have his
date the court issues the order confirming counterclaim resolved in the same action, he
the dismissal. must notify the court of his preference within
fifteen (15) days from the notice of the plaintiff‘s
 The dismissal as a matter of right ceases motion to dismiss. Should he opt to prosecute his
when an answer or a motion for summary counterclaim in a separate action, the court
judgment is served on the plaintiff and not should render the corresponding order granting
when the answer or the motion is filed and reserving his right to prosecute his claim in a
with the court. Thus, if a notice of separate complaint.
dismissal is filed by the plaintiff even after
an answer has been filed in court but DISMISSAL DUE TO THE FAULT OF
before the responsive pleading has been PLAINTIFF
served on the plaintiff, the notice of
dismissal is still a matter of right. A complaint may be dismissed by the court motu
proprio or upon a motion filed by the defendant.
TWO-DISMISSAL RULE The dismissal is this case will be through reasons
attributed to his fault.
The two-dismissal rule applies when the plaintiff
has: Sec. 2, Rule 17 provides the following grounds for
a) twice dismissed actions; dismissal:
b) based on or including the same claim; and a) Failure of the plaintiff, without justifiable
c) in a court of competent jurisdiction. reasons, to appear on the date on the date
 The second notice of dismissal will bar of the presentation of his evidence in
the refiling of the action because it will chief;
operate as an adjudication of the claim b) Failure of the plaintiff to prosecute his
upon the merits. action for an unreasonable length of time;
c) Failure of the plaintiff to comply with the
d) Failure of the plaintiff to obey any order of
 Once either an answer or motion for the court;
summary judgment has been served on e) Failure to appear at the trial; or
the plaintiff, the dismissal is no longer a f) Lack of jurisdiction.
matter of right and will require the filing of
a motion to dismiss, not a mere notice of The dismissal shall have the effect of an
dismissal. adjudication upon the merits and is thus with
prejudice to the re-filing of the action, unless the
 The motion to dismiss will now be subject court declares otherwise.
to the approval of the court which will
decide on the motion upon such terms and DISMISSAL OF COUNTERCLAIM, CROSS-
conditions as are just (Sec. 2, Rule 17) CLAIM OR THIRD-PARTY COMPLAINT
unless otherwise specified in the order,
the dismissal shall be without prejudice. . The rule on the dismissal of a complaint applies
The dismissal under Sec. 2 is no longer a to the dismissal of any counterclaim, cross-claim,
matter of right on the part of the plaintiff or third-party claim.
but a matter of discretion upon the court.
A voluntary dismissal by the claimant alone by
EFFECT OF DISMISSAL UPON EXISTING notice pursuant to Sec. 1, Rule 17 shall be made
COUNTERCLAIM before a responsive pleading or a motion for
summary judgment is served or, if there is none,
If a counterclaim has already been pleaded by before the introduction of evidence at the trial or
the defendant prior to the service upon him of hearing (Sec. 4).
the plaintiff’s motion to dismiss, and the court
grants said motion to dismiss, the dismissal “shall PRE-TRIAL (Rule18)
be limited to the complaint” (Sec. 2, Rule 17).

The dismissal of the complaint does not carry CONCEPT OF PRE-TRIAL

with it the dismissal of the counterclaim, whether
Pre-trial is a mandatory conference and personal
confrontation before the judge between the In one case, the SC said that there is no legal
parties and their respective counsel. basis for a court to consider a party notified of
the pre-trial and to consider that there is no
It is conducted after the last pleading has been longer a need to send notice of pre-trial merely
served and filed, it shall be the duty of the because it was his counsel who suggested the
plaintiff to promptly move ex parte that the case date of pre-trial.
be set for pre-trial (within 5 days from the last
pleading has been filed). If the plaintiff failed to move for pre-trial, the
clerk of court shall do so.
The conduct of a pre-trial is mandatory. Pre-trial FAILURE TO APPEAR
is a procedural device intended to clarify and limit
the basic issues between the parties. It thus It shall be the duty of both the parties and their
paves the way for a less cluttered trial and counsels to appear at the pre-trial (Sec. 4, Rule
resolution of the case. Its main objective is to 18).
simplify, abbreviate and expedite trial, or totally
dispense with it. The failure of the plaintiff to appear shall be
cause for the dismissal of the action. This
It is a basic precept that the parties are bound to dismissal shall be with prejudice except when the
honor the stipulations made during the pre-trial. court orders otherwise (Sec. 5, Rule 18). Since
the dismissal of the action shall be with prejudice,
The court shall consider the following maters in unless otherwise provided, the same shall have
the pre-trial: the effect of an adjudication on the merits thus,
1) The possibility of an amicable settlement final. The remedy of the plaintiff is to appeal from
or a submission to alternative modes of the order of dismissal. An order dismissing an
dispute resolution; action with prejudice is appealable. Under the
2) Simplification of issues; Rules, it is only when the order of dismissal is
3) Necessity or desirability of amendments to without prejudice, that appeal cannot be availed
the pleadings; of (Sec. 1[h], Rule 41). Since appeal is available,
4) Possibility of obtaining stipulations or certiorari is not the remedy because the
admissions of facts and of documents to application of a petition for certiorari under Rule
avoid unnecessary proof; 65 is conditioned upon the absence of appeal or
5) Limitation of the number of witnesses; any plain, speedy and adequate remedy (Sec. 1,
6) Advisability of a preliminary reference of Rule 65).
issues to a commissioner;
7) Propriety of rendering judgment on the The failure of the defendant to appear shall
pleadings, or summary judgment, or of be cause to allow the plaintiff to present his
dismissing the action should a valid evidence ex parte and for the court to
ground therefor be found to exist; render judgment on the basis of the
8) Advisability or necessity of suspending the evidence presented by the plaintiff (Sec. 5,
proceedings; and Rule 18). The order of the court allowing the
9) Other matters as may aid in the prompt plaintiff to present his evidence ex parte does not
disposition of the action (Sec. 2, Rule 18). dispose of the case with finality. The order is
therefore, merely interlocutory; hence, not
NOTICE OF PRE-TRIAL appealable. Under Sec. 1(c) of Rule 41, no appeal
may be taken from an interlocutory order. The
The notice of pre-trial shall be served on the defendant who feels aggrieved by the order may
counsel of the party if the latter is represented by move for the reconsideration of the order and if
counsel. Otherwise, the notice shall be served on the denial is tainted with grave abuse of
the party himself. The counsel is charged with the discretion, he may file a petition for certiorari.
duty of notifying his client of the date, time and
place of the pre-trial (Sec. 3, Rule 18). PRE-TRIAL BRIEF; EFFECT OF FAILURE TO
Notice of pre-trial is so important that it would be
grave abuse of discretion for the court for The parties shall file with the court their
example, to allow the plaintiff to present his respective pre-trial briefs which shall be received
evidence ex parte for failure of the defendant to at least three (3) days before the date of the pre-
appear before the pre-trial who did not receive trial. This pre-trial brief shall be served on the
through his counsel a notice of pre-trial. adverse party (Sec. 6, Rule 18).
The pre-trial brief shall contain the following The pre-trial in a civil case considers the
matters: possibility of an amicable settlement as an
1) A statement of their willingness to enter important objective. The pre-trial in a criminal
into an amicable settlement or alternative case does not include the considering of the
modes of dispute resolution, indicating the possibility of amicable settlement of criminal
desired terms thereof; liability as one of its purposes.
2) A summary of admitted facts and
proposed stipulation of facts; In a civil case, the agreements and admissions
3) The issues to be tried or resolved; made in the pre-trial are not required to be
4) The documents or exhibits to be signed by the parties and their counsels. They are
presented, stating the purposes thereof; to be contained in the record of pre-trial and the
5) A manifestation of their having availed of pre-trial order (Sec. 7, Rule 18). In a criminal
or their intention to avail of discovery case, all agreements or admissions made or
procedures or referral to commissioners; entered during the pre-trial conference shall be
and reduced in writing and signed by the accused and
6) The number and names of the witnesses, counsel; otherwise, they cannot be used against
and the substance of their respective the accuse (Sec. 2, Rule 118).
testimonies (Sec.6, Rule 18).
The sanctions for non-appearance in a pre-trial
 Failure to file the pre-trial brief shall have the are imposed upon the plaintiff or the defendant in
same effect as failure to appear at the pre- a civil case. The sanctions in a criminal case are
trial. imposed upon the counsel for the accused or the
a. If it is the plaintiff who fails to file a prosecutor.
pre-trial brief, such failure shall be
cause for dismissal of the action. CIVIL PRE-TRIAL CRIMINAL PRE-TRIAL
b. If it is the defendant who fails to do so,
such failure shall be cause to allow the Mandatory Mandatory
plaintiff to present his evidence ex Presence of defendant Accused need not be
parte. and counsel present, but his
 A pre-trial brief is not required in a criminal mandatory counsel must be
case. present, otherwise he
may be sanctioned
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL Amicable settlement is Amicable settlement is
CASE AND PRE-TRIAL IN CRIMINAL CASE discussed not discussed, unless
the criminal case is
The pre-trial in a civil case is set when the covered by summary
plaintiff moves ex parte to set the case for pre- procedure
trial (Sec.1, Rule 18). The pre-trial in criminal Agreement included in Agreements or
case is ordered by the court and no motion to set pre-trial order need admissions must be
the case for pre-trial is required from either the not be in writing written and signed by
prosecution or the defense (Sec. 1, Rule 118). the accused and
counsel to be
The motion to set the case for pre-trial in a civil admissible against
case is made after the last pleading has been him.
served and. In a criminal case, the pre-trial is
ordered by the court after arraignment and within
thirty (30) days from the date the court acquires
jurisdiction over the person of the accused.
then the trial court may confirm the award
made by the arbitration panel.
A party has several judicial remedies available at
1) If the case has already filed a complaint its disposal after the Arbitration Committee
with the trial court without prior recourse denied its Motion for Reconsideration:
to arbitration, the proper procedure to 1) It may petition the proper RTC to issue an
enable an arbitration panel to resolve the order vacating the award on the grounds
parties dispute pursuant to the contract is provided for under Sec. 24 of the
for the trial court to stay the proceedings. Arbitration Law;
After the arbitration proceeding has 2) File a petition for review under Rule 43
already been pursued and completed, with the Court of Appeals on questions of
fact, of law, or mixed questions of fact and 1) The appellate court may exercise sound
law (Sec. 41, ADR); judicial discretion
3) File a petition for certiorari under Rule 65 2) An indispensable party can intervene even
on the ground that the Arbitration after the rendition of judgment
Committee acted without or in excess of 3) The remedy of the aggrieved party is appeal.
its jurisdiction or with grave abuse of Mandamus will not lie except in case of grave
discretion amounting to lack or excess of abuse of discretion and if there is no other
jurisdiction. plain, speedy and adequate remedy.


Intervention is a legal proceeding by which a

person who is not a party to the action is
permitted by the court to become a party by
intervening in a pending action after meeting the
conditions and requirements set by the Rules.
This third person who intervenes is one who is not
originally impleaded in the action.

Intervention is merely a collateral or accessory or

ancillary to the principal action ad not an
independent proceeding. With the final dismissal
of the original action, the complaint in
intervention can no longer be acted upon.


1) There must be a motion for intervention filed

before rendition of judgment by the trial
court. A motion is necessary because leave of
court is required before a person may be
allowed to intervene.
2) The movant must show in his motion that he
a) A legal interest in the matter in litigation,
the success of either of the parties in the
action, or against both parties;
b) That the movant is so situated as to be
adversely affected by a distribution or
other disposition of property in the
custody of the court or of an officer
thereof; and
c) That the intervention must not only unduly
delay or prejudice the adjudication of the
rights of the original parties and that the
intervenor’s rights may not be fully
protected in a separate proceeding.
d) The intervenor’s rights may not be fully
protected in a separate proceeding.


The motion to intervene may be filed at any time

before the rendition of judgment by the trial court
(Sec. 2, Rule 18). Intervention after trial and
decision can no longer be permitted.